In the Matter of Esther v. a Child.State

• Decision Date: 21 January 2011
• Docket Number: No. 31,738.,31,738.
• Citation: 2011 -NMSC- 005,248 P.3d 863,149 N.M. 315
• Parties: 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.
• Court: New Mexico Supreme Court

149 N.M. 315

248 P.3d 863

2011 -NMSC- 005

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.

No. 31,738.

Supreme Court of New Mexico.

Jan. 21, 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.

OPINION

DANIELS, Chief Justice.

{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.

I. BACKGROUND

{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?

Mother: Yes.

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?

Mother: Yes.

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?

Mother: Yes....

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?

Mother: Um-hum.

{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, 146 N.M. 588, 212 P.3d 1142. 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, 146 N.M. 588, 212 P.3d 1142. CYFD countered “that Mot...