In affidavits supporting the TIA and TLC petitions, Child Protection Specialists (CPS) noted they had no reason to believe that any of the children were subject to the Indian Child Welfare Act (ICWA). However, at a May 2016 show cause hearing, the District Court was notified that ICWA possibly applied to K.J. considering K.J.’s father received benefits from the Arapahoe Tribe. The benefits signaled potential for K.J. to meet the “Indian child” designation of ICWA. Yet, further correspondence with the Arapahoe Tribe conclusively determined that ICWA was inapplicable to K.J. The District Court granted the Department authority to investigate and work with the parents and children.
In October 2016, the Department again filed petitions for adjudication as YINC and TLC for all three children. CPS Mariesa Wallis submitted three identical affidavits in support which included the statement: “To the best of my knowledge and belie[f] the child is an Indian Child subject to [ICWA].” Wallis’ affidavit did not reference specific tribes or details concerning possible tribal affiliations. The petition and accompanying affidavits are the sole documents in the record suggesting J.J.C. or R.G. were Indian children.
Emphasis added. The Court found that ICWA did not apply (actually, that there was no reason to believe the child was an Indian children, which . . . seems like the wrong finding). Assuming, however, the communication with the Tribe was accurate, it is correct for the trial court to follow that determination rather than the state social worker’s affidavit.
Turtle Talk 