The Court uses the federal regulations and guidelines to determine each participant’s role in inquiry and notice, and remands for proper notice.
Unfortunately, the Court then goes on to hold that the higher standard of proof for a foster care placement under ICWA does not need to be made at adjudication (interestingly, Colorado is one of the few states that still has jury trials for child welfare proceedings). While the Court is correct that ICWA is “silent” on adjudicatory hearings, it does not make clear when the lower court should make the higher burden of proof finding. This is one of the issues in applying the federal law to individual state proceedings–adjudication with a jury makes the most sense for applying all of the protections of ICWA. Adjudication is where the judge (or jury) decides whether the state has the evidence that “warrants intrusive protective or corrective state intervention into the familial relationship” Id. at 22. While it might not be the point where the child is put into foster care, it is often AFTER the child has been placed in foster care. So if the higher standard for foster care placement isn’t applied at the emergency/24/48/shelter care hearing, and it’s not applied at the adjudicatory hearing, when, exactly, is it applied?