In re the Marriage of Stockwell

Citations

• 2019 COA 96

Syllabus

Dees and Stockwell are divorced. L.D-S. was born during their marriage. Stockwell is not L.D-S.'s biological father, but he was declared his legal father under the paternity presumption in CRS § 19-4-105(1)(a). The district court entered an allocation of parental responsibilities (APR) order naming Stockwell L.D.-S.'s primary residential parent and limiting Dees's parenting time to weekends, which was increased over time. Dees subsequently filed a motion asking the district court to return L.D.-S. to her custody based on violations of the Indian Child Welfare Act (ICWA). Dees asserted that L.D-S. was Choctaw and Wailaki, and the APR to Stockwell was a \foster care placement\ because he was not L.D.-S.'s biological father. The court denied the motion as untimely, finding that Dees did not show good cause for the delay. On appeal, Dees argued that the district court erred by issuing the APR order without first inquiring into the child's possible Indian heritage. Under the ICWA, when an Indian child is the subject of an action for foster care placement or termination of parental rights, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe, may petition the court to invalidate such action upon a showing that the action violated the ICWA. The ICWA places no time limit on such a petition. The ICWA defines a parent as a biological parent or an Indian person who has adopted an Indian child. The ICWA does not apply to an award of custody to one of the parents, including in a divorce proceeding. Stockwell is neither L.D-S.'s biological parent nor an Indian person who has adopted the child. The APR to Stockwell was a \foster care placement\ and thus a child custody proceeding for ICWA purposes. Therefore, the district court erred in not inquiring into whether L.D.-S. is an Indian child. The order was reversed and the case was remanded for further proceedings to determine whether L.D-S is an Indian child.