2019.06.04 Case Law Summary
People in the Interest of L.R.B., 2019COA85 (May 30, 2019)
The procedural history is complicated in this one, but it is helpful to understanding the court’s ruling, so bear with me.
The children in this case are registered members of the Navajo Nation and therefore Indian children under ICWA. The court terminated parental rights between the children and their parents, which was then affirmed on appeal.
After the termination, the Department filed a motion to remove the children from the home of the former foster parents and place them in an ICWA preferred placement. The court granted the motion. The Navajo Nation then moved to intervene, which the court granted, and moved to transfer jurisdiction to tribal court, which the court denied because the appeal was still pending. The former foster parents also filed petitions to adopt the children, which were opposed by the Department and the Navajo Nation, and the court “re-joined” the former foster parents to the case.
After the parents’ appeal was concluded, the Navajo Nation again moved to transfer jurisdiction, which the former foster parents opposed. After a contested hearing, the court denied the motion to transfer and ordered the Department to place the children with the former foster parents pending the final hearing on their petitions to adopt.
The Navajo Nation and the Department moved to stay the adoption, which the trial court denied. The Navajo Nation then filed a notice of appeal and an emergency motion for a stay in the court of appeals requesting the children be kept in their current foster home rather than placed with the former foster parents. The court of appeals granted the stay.
First the court addressed the finality of the trial court’s order denying the motion to transfer. In ordinary circumstances, such an order would not be final and appealable because the juvenile court would retain jurisdiction to consider adoptive placements. Because, however, the issue is one related to a request made by an Indian tribe to transfer jurisdiction the court of appeals applied the collateral order doctrine. The doctrine permits, in limited circumstances, appellate review of an interlocutory order despite its non-final nature.
The court first concluded that a trial court’s order denying a tribe’s motion to transfer jurisdiction in a proceeding involving an Indian child is an interlocutory order that may be immediately appealed under the collateral order doctrine.
The court next concluded that the former foster parents lacked standing in the trial case to oppose the Navajo Nation’s motion to transfer jurisdiction. Most importantly, the court found that the civil joinder rules cannot be used to join foster parents in a dependency case because the civil joinder rule is preempted by 19-3-507(5)(a), which specifies when foster parents may intervene in a proceeding.
Finally, the court concluded that the juvenile court erroneously denied the Navajo Nation’s motion to transfer jurisdiction. Because the only parties opposed to the transfer of jurisdiction were the former foster parents, who did not have standing to participate in the contested hearing, the court should not have denied the motion to transfer.
Here are the two big takeaways from the case, in my opinion:
• Denial of motions to transfer jurisdiction to tribes are now final, appealable orders – a very good thing for Indian children under ICWA
• Once foster parents are no longer eligible to intervene under the statute (i.e., the children are not in their care) then they cannot be joined to a
dependency or neglect case under C.R.C.P. 20 (the civil joinder rule)