Third District Juvenile Judge Frederick Oddone ruled Friday that the Colorado tribal court has jurisdiction over the child and his two siblings because a custody case involving the family has been pending in that court for five years.
The tribal court had determined the children to be wards of the court in 2000, and in 2001 the court called for a home study of the children's grandparents. But Utah state officials believe that study was never conducted.
Instead, the children were returned to their mother, Raelynn Ortiz, who was arrested on suspicion of child abuse this week after police found her son badly scalded and having difficulty breathing Monday.
The boy is being treated for first- and second-degree burns on his face, neck and chest, and will remain at University Hospital's burn unit until he is stable enough to be moved. The boy's 10-year-old brother and 8-year-old sister will remain in Utah custody over the weekend, but will be handed over to Ute Mountain Social Services in Towaoc, Colo., sometime next week.
Attorneys for Utah's Division of Child and Family Services (DCFS) say the children's biological father, Dustin Yellow of the Ute Mountain Tribe, is expected to seek custody.
Yellow, who appeared in court Friday, refused to comment, as did the children's paternal grandparents and two maternal aunts. Ortiz, a Navajo, sobbed in court as new details about Monday's incident surfaced.
Ortiz had already been under investigation for child neglect, and earlier that day, a state judge had ordered mental health and drug evaluations of her. State attorneys allege the woman returned home and asked her daughter to put the 6-year-old in the tub and turn on the water.
When the boy started screaming, the girl alerted Ortiz, who allegedly directed her daughter to tie him up. The girl then sought help from a neighbor, who phoned 911.
That description of events Friday contradicted earlier police reports, which had alleged Ortiz tied up her son and used a shower wand to scald him.
Nevertheless, Assistant Utah Attorney General Renee Jimenez contends removal of the children was warranted in light of statements taken by caseworkers, who allege Ortiz routinely hits her children with a belt and enlists them for help in disciplining each other.
DCFS had started investigating Ortiz for child neglect in May after a drunken driver smashed into her car and she tested positive for drugs. Yellow also has a history of substance abuse and a charge of drunken driving on his record, said Jimenez.
Judge Oddone said he is disappointed that the Yellow children's long-pending case in tribal court has not been resolved. The order for a home study of their grandparents was dated Oct. 19, 2001.
Jimenez believes that study never happened. "We don't know why, but somehow the children were released from social services and returned to their mother," Jimenez said.
Jill Tompkins, director of the Indian Law Center at the University of Colorado, acknowledged some tribes are ill-equipped to handle child welfare cases. But she said she was not familiar with the resources available to the Ute Mountain Tribe, located in the southwestern corner of Colorado.
Oddone sent Ortiz's child neglect case back to Juvenile Judge Kimberly Hornak's court, where it originated. Hornak will determine when the 6-year-old is ready to be returned to Colorado.
DCFS spokeswoman Carol Sisco said the injured boy is "doing fairly well and looks like he'll pull through." Other family members were allowed to visit the older children at an emergency shelter Friday afternoon.