STATE EX REL. CHILDREN, YOUTH AND FAMILIES DEP'T. V. MARLENE
C., 2011-NMSC-005, 149 N.M. 315, 248 P.3d 863
In the Matter of Esther V., a child,
STATE OF NEW MEXICO, ex rel. CHILDREN, YOUTH AND FAMILIES
DEPARTMENT, Petitioner-Petitioner and Cross-Respondent,
v.
MARLENE C., Respondent-Respondent and Cross-Petitioner.
SUPREME COURT OF NEW MEXICO
2011-NMSC-005, 149 N.M. 315, 248 P.3d 863
ORIGINAL PROCEEDING ON CERTIORARI, Louis E. DePauli, Jr.,
District Judge.
Released for Publication February 22,
2011.
New Mexico Children, Youth & Families
Department, Rebecca J. Liggett, Santa Fe, NM, for Petitioner and
Cross-Respondent.
Law Offices of Jane B. Yohalem, Jane B.
Yohalem, Santa Fe, NM, for Respondent and Cross-Petitioner.
CHARLES W. DANIELS, Chief Justice. WE
CONCUR: PATRICIO M. SERNA, Justice, PETRA JIMENEZ MAES, Justice, RICHARD C.
BOSSON, Justice, EDWARD L. CHÁVEZ, Justice.
AUTHOR: CHARLES W. DANIELS.
{1} This case addresses
the relationship between the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.
§§ 1901-1963 (2006), which sets “minimum Federal standards for the removal of
Indian children from their families,” § 1902, and the New Mexico Abuse and
Neglect Act, NMSA 1978, Sections
32A-4-1 to -34 (1993, as amended through
2009), which governs the State’s transfer of custody of a child in cases of
abuse or neglect. More specifically, we are asked to determine when and how a
district court in an abuse and neglect proceeding must make the two factual
findings required by § 1912(d) and (e) of ICWA. Subsection 1912(d) provides,
Any party seeking to effect a
foster care placement of, or termination of parental rights to, an Indian child
under State law shall satisfy the court that active efforts have been made to
provide remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family and that these efforts have proved unsuccessful.
Subsection 1912(e) provides,
No foster care placement may be
ordered in such proceeding in the absence of a determination, supported by
clear and convincing evidence, including testimony of qualified expert
witnesses, that the continued custody of the child by the parent or Indian custodian
is likely to result in serious emotional or physical damage to the child.
{2} In this case, the
district court entered an order finding that Marlene C. (Mother) neglected her
month-old baby (Child) and gave legal custody to the Children, Youth and Families
Department (CYFD). Mother appealed, arguing that the district court failed to
make the factual findings required by § 1912(d) and (e) of ICWA at the
adjudicatory hearing.
State ex rel. Children, Youth & Families Dep’t v.
Marlene C.,
2009-NMCA-058, ¶¶ 1, 10, 14,
146 N.M. 588,
212 P.3d 1142. The
Court of Appeals reversed the adjudication of neglect, holding that CYFD failed
to prove the § 1912(e) requirement by clear and convincing evidence as required
by the statute.
Id. ¶¶ 18, 20. The Court of Appeals did not decide
whether the findings required by § 1912(d) and (e) must always be made at the
adjudicatory hearing.
See id. ¶ 14. We hold that, in a contested
adjudication to which ICWA applies, the district court must always make the
findings of fact required under § 1912(d) and (e) of ICWA at the adjudication
stage, founded either on evidence of record or admissions supported by a
factual basis. We therefore reverse the district court’s adjudication of
neglect and remand to that court for further hearing.
{3} Mother, a
member of the Navajo Nation, and Child, who is eligible for enrollment in the
Navajo Nation, were living with a Gallup-based family pursuant to a safety
contract with CYFD in which the family agreed to provide a residence for Mother
and Child and “ensur[e] the child’s safety.” Child’s father (Father) was
incarcerated at the time. On August 21, 2007, CYFD received a referral
indicating that the safety-contract family no longer wanted to help Mother and
Child because Mother “was causing family discord, making [false] allegations,
leaving with the baby on foot and in the extreme heat, and bringing items into
the home that [were] against [the family’s] religious beliefs.”
{4} In response
to the referral, CYFD immediately faxed to the district court a petition
alleging abuse and neglect, a motion for an ex parte custody order with a
supporting affidavit, and a proposed ex parte custody order to be signed by the
district judge. CYFD’s petition alleged that Mother and Father neglected Child,
contrary to Section 32A-4-2(E)(4), “in that [they] are unable to discharge
their responsibilities to and for [C]hild because of incarceration,
hospitalization or other physical or mental disorder or incapacity,” and that
Mother and Father abused Child, contrary to Section 32A-4-2(B)(1), “in that
[C]hild has suffered or is at risk of suffering serious harm because of the
action or inaction of the child’s parent, guardian or custodian.” The petition
also noted that ICWA applies to Child because Child is Native American. The
supporting affidavit contained facts to establish probable cause that Child was
abused or neglected, and it stated that “reasonable and active efforts ha[d]
been made to avoid removal of the child from the home.”
{5} The district court
signed the submitted ex parte custody order within ten minutes of receiving
CYFD’s request, thereby commanding the immediate removal of Child from Mother’s
care, granting “legal and physical custody of the child” to CYFD, and
appointing a guardian ad litem for Child. The district court’s order found that
there was “probable cause to believe that . . . [C]hild [was] abused or
neglected,” that CYFD custody was “necessary,” and that CYFD had made “active
efforts . . . to avoid removal of [C]hild from the home.”
{6} On August 24, 2007,
the district court appointed counsel to represent Mother, and, on August 27,
the court set a custody hearing within ten days of the ex parte order as
required by Section 32A-4-18(A). In response to CYFD’s abuse and neglect
petition, Mother’s counsel filed a response denying “all allegations of neglect
or abuse” and disputing that CYFD made “reasonable efforts . . . to avoid
removing the child.” The temporary custody hearing was postponed several days
to accommodate the various parties and the excusal of the district court judge
and was ultimately held on September 12, 2007.
{7} At the
thirty-minute custody hearing, counsel for Mother asked the court to allow him
five minutes to consult with Mother before the hearing began, explaining that
he had not had an opportunity to talk to his client. After conferring with
counsel, Mother neither renewed her denial of the alleged abuse and neglect nor
challenged the portion of CYFD’s affidavit that stated CYFD had made active and
reasonable efforts to keep the family together. Instead, she stipulated to
temporary CYFD custody of Child pending the adjudicatory hearing, which was
scheduled for October 5, 2007. The court verified Mother’s understanding of the
stipulation in open court as follows:
Judge: . . . We are here today
for a hearing to determine whether or not reasonable grounds exist to allow the
State of New Mexico to keep your child and take legal custody of your child. .
. . If you want a hearing, you can have a hearing to dispute that there is not
reasonable grounds for the government to keep your child from you. . . . Do you
understand?
Judge: Are you willing to give
up that right?
Attorney: In other words, are you
willing to not have a hearing today, but to say okay, they can keep the child
on a temporary basis?
Mother: No, I want to get them
back.
Attorney: I understand you want to
get them back. The question is do you want a hearing today on whether you
should have them temporarily back now. Because you’re going to have a hearing
later on what’s called an adjudication. Do you understand that?
Attorney: Temporarily they’re
going to be with the State, understand? You’re going to have visitation. I
think she understands, your honor.
Judge: Alright. So with your
permission, we will not have a hearing to determine whether or not at this time
you should get your kids back. We’re not going to have that hearing. Do you
understand that?
Judge: And . . . down the line
we can have a further hearing called an adjudication to see if your child will
remain with the State for a longer period of time. We’re not going to have that
right now. Do you understand that?
{8} The court then
signed the stipulated order, which stated that “[t]here is probable cause to
believe that the [parents] are not able to provide adequate supervision and
care for the child” and that “[c]lear and convincing evidence exists to believe
that continued custody of the child by the parent or guardian is likely to
result in serious emotional or physical damage to the child.” Mother did not
contest the findings contained in the stipulated order.
{9} The district
court held an adjudicatory hearing on October 29 and November 28. Father did
not contest the proceedings, but Mother disputed the allegations of abuse and
neglect. Relying on Mother’s earlier stipulation and the ex parte custody
order, CYFD did not present “qualified expert testimony” as required by §
1912(e) of ICWA or otherwise address the § 1912 requirements at the
adjudicatory hearing. At the close of the hearing, the judge dismissed the
abuse allegation but found neglect on the part of Mother. The judge’s written
order stated that “[t]he Court finds by clear and convincing [evidence that
Mother] has neglected the child . . . in that [she] is unable to discharge
[her] responsibilities to and for the child because of incarceration,
hospitalization or other physical or mental disorder or incapacity; and a
factual basis exists to support this finding.”
{10} Mother appealed to
the Court of Appeals, arguing that the requirements of § 1912(d) and (e) of
ICWA were not satisfied.
Marlene C.,
2009-NMCA-058, ¶¶ 4, 14. Mother
argued that the “active efforts” finding required by § 1912(d) and the “likely
to result in serious . . . damage” finding required by § 1912(e) must be made
at the adjudicatory stage of the abuse and neglect proceedings.
Marlene C.,
2009-NMCA-058, ¶¶ 13-14. CYFD countered “that Mother failed to preserve her
ICWA challenges for review . . . and, in the alternative, that the district
court made the requisite findings” before the adjudicatory hearing, thereby
satisfying § 1912(d) and (e).
Id. ¶ 4.
{11} Although Mother
raised CYFD’s failure to satisfy § 1912(d) and (e) for the first time on
appeal, the Court of Appeals allowed her challenge pursuant to § 1914 of ICWA,
which provides in relevant part that “any parent or Indian custodian from whose
custody [an Indian] child was removed . . . may petition any court of competent
jurisdiction to invalidate such action upon a showing that such action violated
any provision of [S]ections 1911, 1912, and 1913 of this title.”
Marlene C.,
2009-NMCA-058, ¶¶ 5-6 (alteration in original) (internal quotation marks
omitted). CYFD does not renew its preservation argument before this Court.
{12} On the merits of
Mother’s appeal, the Court of Appeals agreed with CYFD that § 1912(d)’s
requirement that “active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup of the Indian
family” was satisfied by the ex parte custody order, in which the district
court stated that CYFD had made “active efforts . . . to avoid removal of
[C]hild from the home.”
See id. ¶ 17. The Court of Appeals disagreed,
however, with CYFD’s contention that Mother stipulated to the finding required
by § 1912(e) by signing the temporary custody order, which stated that “[c]lear
and convincing evidence exists to believe that continued custody of [C]hild by
the parent or guardian is likely to result in serious emotional or physical
damage to [C]hild.”
Marlene C.,
2009-NMCA-058, ¶ 13 (alterations in
original) (internal quotation marks omitted). The Court reasoned that CYFD did
not and could not “prove its case under Section 1912(e)” at the temporary
custody hearing because Mother’s consent at that hearing transformed it into a
“voluntary proceeding” pursuant to § 1913(a), rendering § 1912’s requirements
for involuntary proceedings inapplicable at that stage.
See Marlene
C.,
2009-NMCA-058, ¶¶ 15, 18; 25 U.S.C. § 1913(a) (providing requirements
for valid parental consent to foster care placement or termination of parental
rights). Because Mother voluntarily consented to temporary custody pending
adjudication, the Court of Appeals held that CYFD was obligated to establish at
the adjudicatory hearing the likelihood of serious damage through the
presentation of qualified expert testimony as required by § 1912(e).
See
Marlene C.,
2009-NMCA-058, ¶ 17.
{13} CYFD petitioned this
Court for review of the Court of Appeals opinion, and Mother cross-petitioned.
We granted both petitions for certiorari to review three issues: (1) did the
Court of Appeals err by holding that Mother’s consent to temporary custody
pending the adjudicatory hearing transformed the involuntary custody hearing
into a voluntary proceeding governed by § 1913 of ICWA; (2) in a contested
adjudication, does the trial court always need to make the factual findings
required by § 1912(d) and (e) of ICWA at the adjudicatory hearing on abuse and
neglect, or can those findings be made at an earlier stage of the proceedings;
and (3) if the § 1912(d) and (e) findings must be made at the adjudication
stage, should we reverse the adjudication and dismiss the petition for lack of proof,
or should we remand for additional proceedings in which that proof may be
presented?
{14} The interpretation
of ICWA and its relationship to our state statute on abuse and neglect present
questions of law that we review de novo.
See Cherino v. Cherino,
2008-NMCA-024, ¶ 7,
143 N.M. 452,
176 P.3d 1184 (“[T]he applicability of the
ICWA requires us to interpret statutory language, which is . . . subject to de
novo review.”);
State ex rel. Children, Youth & Families Dep’t v.
Benjamin O.,
2007-NMCA-070, ¶ 24,
141 N.M. 692,
160 P.3d 601 (interpreting
the Abuse and Neglect Act de novo).
{15} Our overarching goal
when interpreting ICWA is to effectuate Congress’s intent. The text of ICWA is
the primary indicator of congressional intent, and to the extent that the
language of the statute is “clear and unambiguous, we must give effect to that
language and refrain from further statutory interpretation.”
Quynh Truong v.
Allstate Ins. Co.,
2010-NMSC-009, ¶ 37,
147 N.M. 583,
227 P.3d 73 (internal
quotation marks and citation omitted). Where a statute is ambiguous, we seek a
construction that will harmonize all relevant statutory provisions and avoid
absurd results.
See State v. Nick R.,
2009-NMSC-050, ¶ 11,
147 N.M. 182,
218 P.3d 868 (explaining that statutory construction must be done in a manner
that avoids absurd results);
State v. Smith,
2004-NMSC-032, ¶ 10,
136
N.M. 372,
98 P.3d 1022 (noting that statutory subsections “must be considered
in reference to the statute as a whole” (internal quotation marks and citation
omitted)).
B. The Purpose and Policy of
ICWA
{16} Congress
enacted ICWA upon finding that “an alarmingly high percentage of Indian
families” were broken up by the often unwarranted removal and placement of
Indian children in “non-Indian foster and adoptive homes and institutions.” 25
U.S.C. § 1901(4). Congress noted that “there is no resource . . . more vital to
the continued existence and integrity of Indian tribes than their children” and
that the states, through their administrative and judicial bodies, “have often
failed to recognize the essential tribal relations of Indian people and the
cultural and social standards prevailing in Indian . . . families.” § 1901(3),
(5). In light of those historic facts, Congress enacted ICWA to “protect the
best interests of Indian children and to promote the stability and security of
Indian tribes and families by the establishment of minimum Federal standards
for the removal of Indian children from their families.” § 1902.
{17} ICWA is a
remedial statute in that it was enacted to stem the “alarmingly high percentage
of Indian families” being separated by removal of children through custody
proceedings. § 1901(4). We interpret remedial statutes “liberally to facilitate
and accomplish [their] purposes and intent.”
State ex rel. Stratton v.
Gurley Motor Co.,
105 N.M. 803, 808,
737 P.2d 1180, 1185 (Ct. App. 1987).
Furthermore, “statutes enacted for the benefit of Indians must be liberally
construed with all doubts resolved in favor of the Indians.”
Preston v.
Heckler, 734 F.2d 1359, 1369 (9th Cir. 1984);
accord Bryan v. Itasca
Cnty., Minn., 426 U.S. 373, 392 (1976).
{18} When
construing ICWA we are also informed by the Bureau of Indian Affairs
interpretive guidelines, which were published to assist state courts tasked
with interpreting ICWA within the context of their own child welfare
procedures.
See Guidelines for State Courts; Indian Child Custody
Proceedings (ICWA Guidelines), 44 Fed. Reg. 67,584, 67,584 (Nov. 26, 1979)
(noting that state courts have primary responsibility for interpreting ICWA and
that Congress intended to give state courts flexibility);
see also In re
Guardianship of Ashley Elizabeth R.,
116 N.M. 416, 419,
863 P.2d 451, 454
(Ct. App. 1993) (noting that the guidelines are persuasive authority).
According to the ICWA Guidelines,
Congress through [ICWA] has
expressed its clear preference for keeping Indian children with their families
. . . . Proceedings in state courts involving the custody of Indian children
shall follow strict procedures and meet stringent requirements to justify any
result in an individual case contrary to these preferences. . . . [T]he Act
shall be liberally construed in favor of a result that is consistent with these
preferences. Any ambiguities in any of such statutes, regulations, rules
or guidelines shall be resolved in favor of the result that is most
consistent with these preferences.
44 Fed. Reg. at 67,585 to -86 (emphasis added).
{19} In short,
when construing ICWA we must resolve all ambiguities liberally in favor of the
Indian parent and the tribe in order to effectuate the purpose of the Act,
which is to prevent the unnecessary removal of Indian children.
C. A Parent or Custodian’s
Consent to Temporary Custody Does Not Transform an Involuntary Proceeding into
a Voluntary Proceeding to Which § 1913 of ICWA Applies.
{20} Initially, we
address the Court of Appeals’ characterization of Mother’s stipulation at the
custody hearing as a “consent to a foster care placement” within the meaning of
§ 1913(a) of ICWA.
See Marlene C.,
2009-NMCA-058, ¶¶ 15-18. Section 1913
details the requirements for valid parental consent in situations where a
“parent or Indian custodian voluntarily consents to a foster care placement or
to termination of parental rights.” CYFD argues that this portion of the Court
of Appeals opinion is inconsistent with the purpose of § 1913, which is to
establish procedures for voluntary proceedings that are distinguishable from
those used for involuntary proceedings. For the reasons that follow, we agree
with CYFD and hold that § 1913 applies only to circumstances in which the
parent or Indian custodian has initiated a voluntary proceeding.
{21} The characterization
by the Court of Appeals that Mother’s stipulation at the initial custody
hearing was a voluntary consent within the meaning of § 1913(a) is problematic
because, under § 1913(b), a parent can withdraw consent to a voluntary foster
care placement at any time and regain custody of the child. The Court of
Appeals’ construction relies on the plain language of § 1913(a), which details
the requirements for a valid parental consent in situations where “any parent
or Indian custodian voluntarily consents to a foster care placement or to
termination of parental rights.” We decline to adopt the Court of Appeals’
construction.
{22} By enacting § 1913,
entitled “Parental rights; voluntary termination,” we believe that Congress
intended to establish a separate set of requirements for cases where a parent
or Indian custodian voluntarily initiates a proceeding in order to relinquish
parental or custodial rights to a child. Section 1913 does not contain the same
procedural due process protections found in § 1912, such as notice to the
parents and tribe, expert testimony, the appointment of counsel, and proof by
clear and convincing evidence. Instead, § 1913 details the requirements for a
valid consent to voluntary foster care placement or termination of parental
rights, in Subsection (a), and provides mechanisms allowing a parent to have
the child returned, even in some instances after a final decree of termination
or adoption has been entered, in Subsections (b) through (d).
{23} Our conclusion that
§ 1913 applies only to voluntary proceedings initiated by the parent harmonizes
two otherwise contradictory provisions within ICWA that define the term “foster
care placement.” Section 1903(1)(i) defines a foster care placement as “any
action removing an Indian child from its parent or Indian custodian for
temporary placement . . . where the parent . . . cannot have the child returned
upon demand.” Section 1913(b) provides that a parent “may withdraw consent to a
foster care placement under State law at any time and, upon such withdrawal,
the child shall be returned to the parent.” We conclude that a foster care
placement made in a voluntary proceeding is governed by § 1913 and is
unaffected by § 1903(1)(i)’s definition, which applies only to involuntary
proceedings.
See § 1903 (providing that the definitions apply “except as
may be specifically provided otherwise”).
{24} Additional authority
supports our conclusion that § 1913 applies only to voluntary proceedings. The
ICWA Guidelines clearly distinguish § 1913, discussed under the heading
“Voluntary Proceedings,” from § 1912, discussed under “Involuntary Placements,
Adoptions, or Terminations . . . of Parental Rights.”
See ICWA
Guidelines, 44 Fed. Reg. at 67,592 to -93. Other jurisdictions have treated
involuntary placements differently than voluntary placements and have held that
§ 1913 applies only to voluntary proceedings initiated by the parent.
See,
e.g.,
Doe v. Mann, 415 F.3d 1038, 1063 (9th Cir. 2005) (noting that
Ҥ 1913 establishes parental rights in
voluntary child custody proceedings
involving Indian children”);
In re J.M., 218 P.3d 1213, 1217 (Mont.
2009) (holding that § 1913(a) “has no application to the involuntary
termination proceedings initiated by the [state]”);
In re Adoption of
K.L.R.F., 515 A.2d 33, 37 (Pa. Super. Ct. 1986) (“We construe § 1913(b) as
applying to situations . . . wherein a
consensual foster care placement
was made in the first place and there is no inherent bar to a withdrawal of the
consent.”);
In re Welfare of MG, 201 P.3d 354, 357 (Wash. Ct. App. 2009)
(“Different requirements apply for the voluntary placement as opposed to
involuntary removal of an Indian child. . . . [I]n a voluntary proceeding, if
an Indian parent desires to withdraw his/her consent to placement, the child
must be returned to his/her care.”). Because § 1913 does not apply to
involuntary proceedings like the one before us, we must look elsewhere for
guidance.
D. In a Contested Adjudication
of Abuse or Neglect of an Indian Child, the Court Always Must Make the Factual
Findings Required by § 1912(d) and (e) of ICWA at the Adjudicatory Hearing.
1. Overview of New Mexico Abuse
and Neglect Proceedings
{25} The primary issue
before this Court is when, within the procedural framework established by New
Mexico’s Abuse and Neglect Act, the district court should address § 1912(d)’s
“active efforts . . . to prevent the breakup of the Indian family” requirement
and § 1912(e)’s “likely to result in serious . . . damage” requirement. To
provide context for our discussion, we begin our analysis with a brief overview
of the relevant stages of an abuse and neglect proceeding, including the ex
parte custody stage, custody hearing, adjudicatory hearing, and dispositional
hearing.
{26} CYFD initiates a
proceeding by filing a petition alleging abuse or neglect with the district
court.
See § 32A-4-15; Rule
10-312 NMRA. To obtain immediate custody of
the child, CYFD must also file a motion for an ex parte custody order,
including an affidavit showing probable cause that custody is necessary and
that the child has been abused or neglected.
See § 32A-4-16(A)-(B); Rule
10-311(A) NMRA. If the district court finds probable cause, it may issue an
order giving CYFD interim legal custody of the child until an initial custody
hearing is held.
See §§ 32A-4-16(A), -18(A). The rules of evidence do
not apply to the issuance of an ex parte custody order. Section 32A-4-16(C);
Rule
11-1101(D)(2) NMRA. At the inception of the abuse and neglect proceedings,
the district court must appoint counsel for the parent and a guardian ad litem
for the child. Section 32A-4-10(B)-(C).
{27} The district court
must hold a custody hearing within ten days of the date the petition is filed
“to determine if the child should remain in or be placed in [CYFD]’s custody
pending adjudication.” Section 32A-4-18(A). CYFD must give the parent
“reasonable notice of the time and place of the custody hearing.” Section
32A-4-18(B). The parent must be informed of the allegations in the petition,
potential consequences if those allegations are found true, and the rights to
counsel and an adjudicatory hearing. Section 32A-4-10(G); Rule
10-314 NMRA. The
rules of evidence do not apply at the custody hearing. Section 32A-4-18(H);
Rule 11-1101(D)(2). If the court finds that there is probable cause to believe
there has been abuse or neglect, the court determines custody of the child
pending the adjudicatory hearing on the merits of the petition.
See §
32A-4-18(A), (D).
{28} At the
adjudicatory hearing the court determines whether the allegations in the
petition are true. The adjudicatory hearing is an evidentiary hearing on the
merits of the abuse or neglect case, complete with due process protections.
[A]t a minimum, due process in
neglect and abuse proceedings requires timely notice reasonably calculated to
inform the person concerning the subject and issues involved in the proceeding;
a reasonable opportunity to refute or defend against a charge or accusation; a
reasonable opportunity to confront and cross-examine adverse witnesses and
present evidence on the charge or accusation; representation by counsel, when
such representation is required by constitution or statute; and a hearing
before an impartial decisionmaker.
State ex rel. Children, Youth & Families Dep’t v.
Kathleen D.C. (In re Damion M.C.), 2007-NMSC-018, ¶ 12, 141 N.M.
535, 157 P.3d 714 (internal quotation marks and citation omitted). The
adjudicatory hearing must be “commenced within sixty days after the date of
service” of the petition upon the respondent. Section 32A-4-19(A); see also Rule
10-343 NMRA (detailing triggering events for the sixty-day time limit). If the
respondent denies the allegations in the petition,1
the court must hear evidence on the petition and make findings on whether the
child is abused, neglected, or both. Section 32A-4-20(G). Unlike the ex parte
and custody hearing stages, the rules of evidence apply at the adjudicatory
hearing. Rule 10-141 NMRA; see also Rule 11-1101(A), (D). The court must
determine, in the absence of a valid admission, whether the child is abused or
neglected “on the basis of clear and convincing evidence, competent, material
and relevant in nature.” Section 32A-4-20(H).
{29} If the court
concludes on the basis of clear and convincing evidence that the child is abused
or neglected, the next stage is the dispositional hearing, which can either be
included within the adjudicatory hearing or conducted separately within thirty
days after the adjudication of abuse or neglect. Sections 32A-4-20(H), -22(A).
At disposition the court makes factual findings relevant to a custody
determination, determines custody of the child, and establishes a treatment
plan. Section 32A-4-22. The court must make multiple findings regarding the
interests of the child, the wishes of the child and parent, and the ability of
the potential custodians. Section 32A-4-22(A). The rules of evidence do not
apply at disposition; the court is instead allowed to consider “all relevant
and material evidence helpful in determining the questions presented, including
oral and written reports, . . . even though not competent had it been offered
during the part of the hearings on adjudicatory issues.” Section 32A-4-20(I);
Rule 11-1101(D)(2).
2. The § 1912(d) and (e)
Findings in the Context of New Mexico’s Procedural Framework
{30} With New Mexico’s
procedural framework in mind, we consider which procedural stage is best suited
for addressing the requirements of § 1912(d) and (e) of ICWA.
See R.A.C.P.
v. State (
In re Interest of D.S.P.), 480 N.W.2d 234, 238 (Wis. 1992)
(noting that state statutes should be read to harmonize with ICWA);
San
Diego Cnty. Health & Human Servs. Agency v. Francisco Z. (
In re
Matthew Z.), 95 Cal. Rptr. 2d 343, 349 (Cal. Ct. App. 2000) (explaining
that the state proceeding best suited for addressing ICWA is the proceeding
that requires findings that parallel the ICWA findings). CYFD’s regular
practice has been to address the findings required by § 1912(d) and (e) at the
earliest possible procedural stage. Accordingly, CYFD asserts in this case that
the district court, by issuing the ex parte custody order, made the “active
efforts” finding required by § 1912(d) and that Mother’s stipulation at the
temporary custody hearing satisfied § 1912(e)’s “serious . . . damage”
requirement. CYFD argues in the alternative that the dispositional hearing is
the appropriate procedural stage for addressing the requirements of ICWA.
Mother argues that the factual findings required by § 1912(d) and (e) must
always be made at the adjudicatory hearing. We agree with Mother that § 1912(d)
and (e) findings must be made at the adjudicatory hearing because the
adjudicatory hearing is the procedural phase that affords the Indian parent and
tribe the most procedural due process protection and best accommodates the requirements
of § 1912.
{31} To construe ICWA
within the procedural framework of New Mexico’s Abuse and Neglect Act, we begin
with a textual analysis to determine whether the plain meaning of the relevant
ICWA provisions addresses the question at hand. The plain language of § 1912(d)
and (e) specifies what is required to be shown: (1) that “active efforts have
been made” and (2) that “the continued custody of the child . . . is likely to
result in serious emotional or physical damage.” But the text gives only a
vague indication of
when the findings must be made: prior to a “foster
care placement,” which ICWA defines as “any action removing an Indian child
from its parent or Indian custodian for temporary placement in a foster home .
. . where the parent or Indian custodian cannot have the child returned upon
demand, but where parental rights have not been terminated.” § 1903(1)(i). This
language does not unambiguously indicate which procedural phase within a foster
care placement proceeding is the proper time for the § 1912(d) and (e) findings
to be made. Accordingly, we resort to the policy and purpose of ICWA and our
tools of statutory construction as we attempt to effectuate Congress’s intent.
3. New Mexico’s Ex Parte and
Custody Hearing Stages Are Unsatisfactory Procedural Stages for Addressing the
Requirements of § 1912(d) and (e) of ICWA.
{32} New Mexico’s ex
parte and custody hearing stages are ill-suited for making the § 1912(d) and
(e) findings because they are emergency proceedings that do not provide
sufficient due process protections. New Mexico’s ex parte and custody hearing
stages are expedited emergency proceedings that enable the State to remove a
child and take temporary custody in order to ensure the child’s safety until a
full hearing on the merits is held.
See Yount v. Millington,
117
N.M. 95, 101,
869 P.2d 283, 289 (Ct. App. 1993) (“[W]hen a child’s safety is
threatened, that is a sufficient basis to justify postponing the parent’s
hearing until after the child has been taken into protective custody.”).
Congress has expressly recognized a state’s power to implement emergency
removal and placement actions for Indian children in § 1922 of ICWA which
states, in pertinent part:
Nothing in this subchapter shall be
construed to prevent the emergency removal of an Indian child who is a resident
of or is domiciled on a reservation, but temporarily located off the reservation,
from his parent or Indian custodian or the emergency placement of such child in
a foster home or institution, under applicable State law, in order to prevent
imminent physical damage or harm to the child.
{33} Although § 1922
expressly refers only to Indian children who are residents of or domiciled on
the reservation, we conclude that CYFD must necessarily have the power to take
emergency custody of any Indian child who is physically located off the
reservation. ICWA gives an Indian tribe exclusive jurisdiction “over any child
custody proceeding involving an Indian child who resides or is domiciled within
the reservation of such tribe.” § 1911(a). But when an emergency arises with
respect to a child who is physically located off a reservation, the time-sensitive
nature of the emergency may require CYFD to take immediate action to remove the
child from harm’s way without first establishing whether the child is subject
to exclusive tribal jurisdiction.
See ICWA Guidelines, 44 Fed. Reg. at
67,589 to -90. Once the child is safe, § 1922 requires CYFD to “expeditiously
initiate a child custody proceeding subject to the provisions of this
subchapter, transfer the child to the jurisdiction of the appropriate Indian
tribe, or restore the child to the parent or Indian custodian, as may be
appropriate.” Section 1922 thus allows CYFD to secure the child first and ask
questions about the child’s residence and domicile later in order to ensure the
child’s safety.
{34} The ICWA guidelines,
the statute’s legislative history, and the decisions of other jurisdictions
support our conclusion. Other states have recognized their ability to perform
an emergency removal of an Indian child without first adhering to the
requirements of § 1912.
See San Bernardino Cnty. Dep’t of Children’s Servs.
v. Jeannie V. (
In re S.B.), 30 Cal. Rptr. 3d 726, 735-36 (Cal. Ct.
App. 2005) (explaining that § 1922 should be read to apply to Indian children
who are not residents of or domiciled on a reservation);
State ex rel.
Juvenile Dep’t of Multnomah Cnty. v. Charles (
In re Jade Charles),
688 P.2d 1354, 1358 n.2 (Or. Ct. App. 1984) (explaining that “it is implicit
that ‘emergency removal’ authority extends to non-reservation Indian
children”). ICWA’s legislative history explains that § 1922 was intended to
“permit, under applicable state law, the emergency removal of an Indian child
from his parent or Indian custodian or emergency placement of such child in
order to prevent imminent physical harm to the child notwithstanding the
provisions of [ICWA].” H.R. Rep. No. 95-1386, at 25 (1978). The ICWA Guidelines
confirm that although “emergency action must be taken without the careful
advance deliberation normally required,” the “court shall be required to comply
with the requirements of [ICWA] and reach a decision within 90 days unless
there are ‘extraordinary circumstances’ that make additional delay
unavoidable.” 44 Fed. Reg. at 67,590. We conclude that New Mexico’s ex parte
and custody hearings are emergency proceedings under § 1922 to which the requirements
of § 1912 do not apply.
{35} Additionally, the ex
parte and custody hearing stages are unsatisfactory settings in which to make
the § 1912(d) and (e) findings because the timing of those stages does not fit
within the notice timeline provided by § 1912 and because they require a lesser
standard of proof than that required by ICWA. Under ICWA, a “foster care
placement or termination of parental rights proceeding” cannot be held “until
at least ten days after receipt of notice by the parent or Indian custodian and
the tribe,” and the parent, Indian custodian, or tribe is entitled to “up to
twenty additional days to prepare for such proceeding.” § 1912(a). In contrast,
New Mexico’s ex parte stage allows CYFD to obtain a court order for immediate
removal of a child without any notice to the parent or tribe.
See §
32A-4-16. CYFD must provide the parent with “reasonable notice” of the custody
hearing, but the hearing must be held within ten days of the date the petition
is filed. Section 32A-4-18(A)-(B). Section 32A-4-18’s ten-day time frame does
not allow notice to reach the tribe and parent at least ten days and up to
thirty days before the custody hearing as required by § 1912(a). The ten-day
period does not allow the parent to consult fully with counsel and prepare a
complete defense on the merits of serious legal and factual issues. And it does
not allow CYFD to adequately prepare to present the expert witness testimony
required by § 1912(e). At the ex parte and custody hearing stages, a denial of
parental custody under New Mexico law requires only a showing of probable cause
indicating abuse or neglect,
see §§ 32A-4-16(A), -18(C), while § 1912(e)
of ICWA expressly requires clear and convincing evidence that “serious
emotional or physical damage to the child” is likely. These divergent timelines
and standards of proof distinguish the ex parte and custody hearing stages from
the adjudication stage, which comports with the requirements of § 1912.
4. The Adjudicatory Hearing Is
the Best Procedural Stage in Which to Make the § 1912(d) and (e) Findings.
{36} New Mexico’s
adjudicatory hearing incorporates procedural due process protections and a
stringent standard of proof that parallel those required by ICWA. The
adjudicatory hearing must be held within sixty days after the date the petition
is served on the parent. Section 32A-4-19(A). This time frame comports with
ICWA’s requirement that the parent and tribe receive notice at least ten days
and up to thirty days before the commencement of a foster care placement
proceeding.
See § 1912(a). The timing of the adjudicatory hearing allows
for the notice required by § 1912(a) while meeting the ICWA requirement that
CYFD “expeditiously” initiate a foster care placement proceeding following an
emergency removal or placement proceeding.
See § 1922. If a parent
denies allegations of abuse or neglect at the adjudicatory hearing, the court
must hear all evidence bearing on the issue. Section 32A-4-20(G). Because the
adjudicatory hearing is an evidentiary hearing, it is a practical time to
satisfy the ICWA requirement that CYFD present the “testimony of qualified
expert witnesses.”
See § 1912(e). At a contested adjudication, the State
is required to prove abuse or neglect by “clear and convincing evidence,
competent, material and relevant in nature.” Section 32A-4-20(H). Consistently,
§ 1912(e) of ICWA requires a showing by “clear and convincing evidence . . .
that the continued custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage to the child.” The
similarities between New Mexico’s requirements for an adjudicatory hearing and
the ICWA requirements for the involuntary placement of an Indian child in
foster care make the adjudicatory hearing the best procedural phase for the
court to make the findings required by § 1912(d) and (e).
{37} More importantly,
requiring courts to make the factual findings prescribed by § 1912(d) and (e)
at the adjudicatory hearing furthers the purposes and policies behind ICWA
because both the parent and the tribe are able to participate meaningfully in
the process. Parents have a fundamental liberty interest in the care and
custody of their children; due process of law is required before parents can be
deprived of that right.
See Kathleen D.C.,
2007-NMSC-018, ¶ 12. ICWA
also protects the interests of both the Indian child and the tribe by
preventing the unwarranted removal of Indian children from their unique culture
and heritage.
See § 1901(3)-(5). Because we must construe ICWA by
resolving all ambiguities liberally in favor of the Indian parent and tribe, we
conclude that the findings required by § 1912(d) and (e) always must be made at
the adjudicatory hearing, which incorporates due process protections.
5. New Mexico’s Dispositional Hearing
Does Not Comport with ICWA’s § 1912(d) and (e) Requirements.
{38} Compared with the
adjudicatory hearing, the dispositional hearing stage is less compatible with
the requirements of § 1912(d) and (e). The dispositional stage occurs later in
the process, after the court has already ruled on the allegations of abuse and
neglect. Sections 32A-4-20(H), -22(A). CYFD asserts that the § 1912 findings do
not factor into whether a child is abused or neglected but are instead “more a
dispositional type of issue.” We disagree. The § 1912(e) finding is closely
analogous to a finding of abuse under New Mexico law.
Compare § 1912(e)
(requiring “a determination . . . that the continued custody of the child by
the parent or Indian custodian is likely to result in serious emotional or
physical damage to the child”),
with § 32A-4-2(B)(1) (defining an abused
child as any child “who has suffered or who is at risk of suffering serious
harm because of the action or inaction of the child’s parent, guardian or
custodian”). It makes little sense for the court to address the merits of an
abuse allegation at the adjudicatory hearing and then later make the similar §
1912(e) finding at disposition.
{39} The parties before
us agree that the dispositional stage does not provide the parent with due
process protections afforded the parent at adjudication. The rules of evidence
do not apply at disposition; in fact, the court can receive and rely upon
information that would not have been considered competent evidence had it been
offered at the adjudicatory hearing.
See § 32A-4-20(I); Rule
11-1101(D)(2). The Abuse and Neglect Act does not specify the standard of proof
that applies at disposition. These non-evidentiary procedures are inconsistent
with ICWA’s requirements of “clear and convincing evidence” and “testimony of
qualified expert witnesses.” § 1912(e). They are likewise inconsistent with a
parent’s right to contest that “active efforts have been made . . . to prevent
the breakup of the Indian family.”
See § 1912(d). We conclude that the
dispositional hearing is an unsatisfactory stage at which to address the
requirements of § 1912(d) and (e) of ICWA.
6. A Parent Can Admit to the
Factual Findings Required by § 1912(d) and (e) Only If the Court Adheres to
Procedural Safeguards Protecting the Rights and Interests of the Parent, Child,
and Tribe.
{40} Parental
stipulations to temporary CYFD custody pending adjudication are not unusual in
abuse and neglect proceedings. Our holding does not preclude stipulations to
temporary custody pending adjudication, so long as the court ensures that the
parent knowingly enters into the stipulation. Although we differ from the view
expressed in the Court of Appeals opinion that § 1913(a) controls voluntary
stipulations made in involuntary proceedings, we agree that § 1913(a) provides
helpful guidance on what should be required for a valid parental stipulation in
involuntary proceedings.
See Marlene C.,
2009-NMCA-058, ¶ 15.
Under § 1913(a), a parent’s consent is valid only if the court ensures “that the
terms and consequences of the consent were fully explained in detail and were
fully understood by the parent or Indian custodian.” It is reasonable that the
same underlying principle should govern valid parental consent to temporary
custody pending adjudication: A parent must understand what the consent really
means.
{41} At the custody
hearing in this case, Mother’s newly appointed counsel explained to her that
Child was temporarily going to be in State custody, and the judge explained
that there would be a later hearing called an adjudication to determine whether
Child would remain with the State for a longer period of time. Mother does not
contest that she intended to stipulate to temporary custody pending
adjudication. But nothing in the record indicates that Mother understood her
stipulation to temporary custody to amount to a permanent waiver of the
substantive rights afforded by § 1912(d) and (e). The stipulation order entered
at the custody hearing did not purport to waive any of Mother’s statutory
rights under ICWA.
{42} Admission to the
factual findings required by § 1912 invokes more stringent procedural
safeguards than a parental stipulation to temporary custody. Unlike the custody
hearing, which is a preliminary emergency proceeding, the adjudicatory hearing
addresses the ultimate merits of the case, and a parent’s admission to
allegations of either abuse or neglect or to the factual findings required by §
1912(d) and (e) has much more serious consequences than a stipulation to
temporary custody. The result of a stipulation to abuse or neglect may well be
a permanent severance of the relationship between the parent and child.
Accordingly, the court must adhere to stricter procedural safeguards at
adjudication to ensure that parents do not casually surrender either their
fundamental liberty interest in the care and custody of their children or the
substantive rights protected by ICWA.
See Kathleen D.C.,
2007-NMSC-018,
¶ 12 (providing that the “interest of parents in the care, custody, and control
of their children is a fundamental liberty interest” (internal quotation marks
and citation omitted));
Miss. Band of Choctaw Indians v. Holyfield, 490
U.S. 30, 36 (1989) (discussing the “important substantive requirement[s]” that
ICWA imposes on state courts).
{43} Congress enacted
ICWA to protect the rights and interests of the parent, the tribe, and the
child.
See Miss. Band of Choctaw Indians, 490 U.S. at 32, 34, 52-53
(holding that a parent cannot defeat ICWA’s provision of exclusive tribal
jurisdiction over an Indian child domiciled on the reservation by simply giving
birth off the reservation and placing the child for adoption). Congress
intended ICWA to “protect the rights of the Indian child as an Indian and the
rights of the Indian community and tribe in retaining its children in its
society.”
Id. at 37 (internal quotation marks and citation omitted).
When enacting ICWA, Congress knew that removing Indian children from their
family and tribe could negatively impact the tribe’s “long-term . . . survival
and [have] damaging social and psychological impact[s] on many individual
Indian children.”
Id. at 50 (internal quotation marks and citation
omitted). ICWA therefore protects a child’s interest in retaining “his or her
tribal and cultural heritage.”
Id. at 50 n.24 (internal quotation marks
and citation omitted). And ICWA furthers tribal sovereignty by ensuring that
tribes are able to raise their children with their own cultural and societal
values.
Id. at 34.
{44} The tribe’s interest
in its children is one more reason that the requirements of § 1912 cannot be
taken lightly or addressed in a cursory manner. ICWA is replete with provisions
designed to protect the tribe’s interest in child custody proceedings affecting
the tribe’s children, including § 1911(a) (providing exclusive tribal
jurisdiction over reservation domiciliaries), § 1911(b) (providing presumptive
tribal jurisdiction over non-domiciliaries), § 1911(c) (giving tribes the right
to intervene in state court proceedings), § 1912(a) (providing for the tribe’s
right to notice of involuntary state court proceedings), § 1914 (providing for
the tribe’s right to petition for invalidation of state court actions), §
1915(c) (allowing tribes to reorder the placement priorities applicable to
state court actions), § 1915(e) (giving the tribe the right to obtain placement
records), and § 1919 (giving tribes the authority to enter agreements with
states). ICWA protects the tribe’s interest primarily through its
jurisdictional provisions and child placement preferences.
See §§ 1911
(establishing ICWA’s jurisdictional scheme), 1915 (establishing placement
preferences for Indian children);
see also Miss. Band of Choctaw
Indians, 490 U.S. at 36 (explaining that ICWA’s jurisdictional provisions
are “the heart” of ICWA and that § 1915, establishing placement preferences for
Indian children, is the most important substantive requirement that ICWA
imposes on state courts).
{45} While an abuse and
neglect proceeding is designed to protect the best interests of the child and
the rights of the parents, ICWA goes further by protecting the unique
relationship between a tribe and its children. That relationship is not to be
severed casually or without good cause. If a parent wishes to admit to the
factual findings required by ICWA without a full adjudicatory hearing, we must
require procedural safeguards that meet the standards New Mexico law requires
for admissions in ordinary abuse and neglect proceedings. The New Mexico
Children’s Court Rules provide that a parent can admit to abuse or neglect, by
“admitting sufficient facts to permit a finding that the allegations of the
petition are true,” Rule
10-342(A) NMRA, and give details of the procedural
safeguards required for an admission to be valid, Rule 10-342(C)-(D). We hold
that similar procedural requirements apply when a parent admits to the factual
findings prescribed under § 1912(d) and (e). Before the court accepts a parent’s
admission to the § 1912(d) and (e) findings, the court must make “such inquiry
as shall satisfy the court that there is a factual basis for the admission.”
Rule 10-342(D). CYFD must be prepared to offer evidence to satisfy the court
that such a basis exists.
Cf. State ex rel. Children, Youth &
Families Dep’t v. Stella P., 1999- NMCA-100, ¶ 35,
127 N.M. 699,
986 P.2d
495 (explaining that to meet CYFD’s burden of proof in a termination of
parental rights proceeding, CYFD must present “sufficient testimony to allow
the court to make the required statutory findings”).
{46} Additionally, before
accepting an admission, the court must ensure that the admission is voluntary
and that the parent understands (1) the allegations of the petition, (2) the
possible dispositions should the allegations of the petition be found true, (3)
the right to deny the allegations and have a full adjudicatory hearing, and (4)
that the admission waives the parent’s right to contest the § 1912(d) and (e)
findings in a full adjudicatory hearing.
See Rule 10-342(C). In this
case, Mother’s stipulation to temporary custody pending adjudication did not
meet the requirements for a valid evidentiary admission to the factual findings
required by § 1912(d) and (e).
E. The Proper Remedy in This
Case is Reversal of the Adjudication of Neglect and Remand for Further
Proceedings.
{47} CYFD asks
this Court to reverse the Court of Appeals’ decision and, if ICWA requirements
were not satisfied in this case, to remand this case to the district court to
hold an additional hearing regarding the ICWA requirements. Mother argues that
the adjudication of neglect must be reversed based on insufficiency of the
evidence. While we agree with Mother that the adjudication of neglect must be
reversed because the findings required by § 1912(d) and (e) of ICWA were not
made at the adjudicatory hearing on abuse and neglect, we conclude that
remanding to the district court for further proceedings is appropriate in this
case.
{48} Ordinarily,
appellate reversal on substantive grounds of an adjudication of abuse or
neglect results in the dismissal of the petition and a remand to the district
court, which “retains jurisdiction to determine whether the parent prevailing
on appeal should regain custody of the child.”
Benjamin O.,
2007-NMCA-070, ¶ 35. If CYFD does not believe that reunification is in the best
interests of the child, “it can bring new or current allegations of abuse,
neglect, or abandonment to the district court’s attention,”
id. ¶ 39,
and argue that such “allegations of abuse or neglect are sufficient to
establish abuse or neglect by clear and convincing evidence,”
id. ¶ 40.
{49} In this case, we are
deciding issues of first impression regarding proper implementation of the ICWA
requirements in New Mexico courts. CYFD asserts that it has made a good faith
effort to comply with the letter and spirit of ICWA by addressing § 1912(d) and
(e) at the earliest possible procedural stage. We recognize that if we were to
order dismissal of the abuse and neglect petition for lack of proof on the ICWA
requirements, CYFD would be precluded from bringing the same potentially
meritorious allegations in a new petition but instead would have to decide
whether it had grounds to supplement the original petition or file a new petition
with different allegations of abuse or neglect. We conclude that requiring CYFD
to begin the process anew in this case by bringing new allegations of abuse or
neglect neither promotes judicial economy nor protects Child’s best interests.
Accordingly, we remand this case to the district court for a new adjudicatory
hearing so that CYFD can present any evidence, including qualified expert
testimony, that bears on the findings required by § 1912(d) and (e).
{50} In child abuse and
neglect proceedings to which ICWA applies, the findings required by § 1912(d)
and (e) always must be addressed at the adjudicatory hearing. They were not in
this case. Accordingly, we reverse the adjudication of neglect and remand this
case to the district court for a new adjudicatory hearing that satisfies the
requirements of § 1912(d) and (e) of ICWA.
CHARLES W. DANIELS, Chief Justice
PATRICIO M. SERNA, Justice
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
Topic Index for Children, Youth & Families Dep’t v.
Marlene C. (In re Esther V.), Docket No. 31,738
CD-CT Children’s Court
Rules
CL-CN Child Abuse and
Neglect
IL-IW Indian Child Welfare Act