State ex rel. Children, Youth & Families Dep't v. Douglas B.

• Court: New Mexico Supreme Court
• Writing for the Court: THOMSON, Justice.
• Citation: State ex rel. Children, Youth & Families Dep't v. Douglas B., 539 P.3d 294 (N.M. 2023)
• Docket Number: S-1-SC-39139
• Decision Date: 25 September 2023
• Parties: STATE of New Mexico EX REL. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Respondent/Cross-Petitioner, v. DOUGLAS B., Respondent-Petitioner/Cross-Respondent, and Sara E., Respondent-Cross Respondent/Cross-Petitioner. In the Matter of Abigail B., Child.

539 P.3d 294

STATE of New Mexico EX REL. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Respondent/Cross-Petitioner,

v.DOUGLAS B., Respondent-Petitioner/Cross-Respondent,andSara E., Respondent-Cross Respondent/Cross-Petitioner.

In the Matter of Abigail B., Child.

No. S-1-SC-39139

Supreme Court of New Mexico.

Filing Date: September 25, 2023

Mary McQueeney, Chief Children's Court Attorney, Robert Retherford, Children's Court Attorney, Santa Fe, NM, for Petitioner-Respondent/Cross-Petitioner

Law Offices of Nancy L. Simmons, P.C. Nancy L. Simmons, Albuquerque, NM, for Respondent-Petitioner/Cross-Respondent

Susan C. Baker, El Prado, NM, for Respondent-Cross Respondent/Cross-Petitioner

THOMSON, Justice.

{1} The Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 - 1963, places procedural safeguards on removal of Indian children from Indian families. See 25 U.S.C. §§ 1902, 1911. One such safeguard is a requirement that a Qualified Expert Witness (QEW) testify and that the QEW be qualified to provide certain categories of testimony. 25 U.S.C. § 1912(e). These categories generally cover two areas: (1) the likelihood of continued custody by the parent or Indian custodian resulting in serious emotional or physical damage to the child (serious damage) and (2) the prevailing social and cultural standards of the Indian child's tribe (cultural standards). 25 C.F.R. § 23.122(a) (2023).¹ This opinion clarifies whether the two categories of QEW testimony are analyzed independently or jointly and what expertise is required. Next, we examine the particular qualifications of the QEW in this case. Finally, we determine the proper remedy in this case—remand or dismissal.

{2} We affirm the Court of Appeals, concluding first that courts must independently analyze qualification in the two categories of required QEW testimony under ICWA and that the testimony can come from one or multiple experts. Second, our evidentiary rules governing expert testimony are sufficient to guide a court tasked with qualifying a QEW. Applying that standard, we hold that the QEW in this case was qualified to testify as to the cultural standards of the tribe. However, the same QEW was not qualified to testify regarding serious damage to the child. Finally, we hold that remand for a new adjudicatory hearing is the appropriate remedy in this case.

I. BACKGROUND

{3} In October 2018, the Children, Youth, and Families Department (CYFD) received a referral after a young girl (Child) revealed to a source that she was self-harming and wanted to kill herself. Child also reported that her parents, Douglas B. (Father) and Sara E. (Mother) (collectively, Parents), fought constantly, that they were violent toward one another, and that Father was an alcoholic. Family members expressed concern about "severe domestic violence" and about Parents abusing alcohol and methamphetamine. CYFD took custody of Child and placed her with her paternal aunt.

{4} Although Parents initially refused to provide information about Child's ancestry, CYFD discovered that Child was eligible for membership through Mother in the Wichita and Affiliated Tribes of Oklahoma (Child's Tribe), and Child's Tribe intervened in the case. After placing Child with her aunt, the district court held a series of adjudicatory hearings to determine whether Child was abused or neglected and whether to keep Child in CYFD custody under her aunt's care.

{5} Kyli Ahtone was proffered by CYFD to testify as a QEW in one of the adjudicatory hearings.² Ms. Ahtone testified that she holds a bachelor's degree in Criminal Justice and was raised as a member of the Apache Tribe of Oklahoma on her tribe's reservation. Child's Tribe had employed Ms. Ahtone for the last five years as an ICWA caseworker, and her job was to monitor state cases involving children from Child's Tribe to ensure ICWA compliance. Ms. Ahtone handled many ICWA cases throughout her five years working for Child's Tribe, but she was unable to provide an exact number. She was qualified as an ICWA expert more than fifty times in Oklahoma and other states, but she did not recall whether she had "ever qualified as an expert in New Mexico before." She regularly attended Child's Tribe's ceremonies, events, and rituals and informed the district court that while her tribe's cultural norms and those of Child's Tribe were "very similar," there were a few ways in which they differed.

{6} CYFD proffered Ms. Ahtone as a QEW on this foundation without specifying the category of testimony for which she was proffered. Father objected, arguing that Ms. Ahtone was not properly qualified as a QEW because she was not a member of Child's Tribe. CYFD responded that while the QEW could be a member of Child's Tribe, a QEW could also be a person not from Child's Tribe, but one who "ha[s] substantial experience in the delivery of child and family services to Indian people." This experience, CYFD argued, could include "knowledge of prevailing social and cultural standards as well as childrearing practices of the Child's Tribe or Indian cultures."

{7} Before it qualified Ms. Ahtone as an expert, the district court allowed CYFD to lay additional foundation. Ms. Ahtone repeated that she had attended numerous ICWA trainings. She provided more specifics to her previous testimony, adding for example that she met quarterly with the foster care review board, and noted that when she had any questions regarding Child's Tribe's culture, she referred to the board. She also stated that she raises her own children in her tribe's culture and "raise[s] them as [she was] raised to follow [tribal] traditions."

{8} CYFD then turned to questions regarding Ms. Ahtone's understanding of the familial and cultural expectations of Child's Tribe. Ms. Ahtone appeared confused by these questions. When asked about expectations for family organization and operation, she stated, "we live as a regular family, the only thing different about us is that, for us, we believe in different things." CYFD attempted to rephrase and asked what duties family members owed to each other and about cultural views concerning arguing and disagreement. Ms. Ahtone answered that she "would probably have to go off of [her] own family" and that these sorts of issues had not come up at the foster review board meetings. She disclosed, "For [Child's Tribe], I've never really been asked that question. I've usually just gone on [whether] I've known [Child's Tribe's] customs."

{9} CYFD then moved on to question Ms. Ahtone about her understanding of her own tribe's expectations around the use of alcohol and drugs. She responded, "growing up we did not have this type of situation within our family ... , but ... I had witnessed this within [other] families" and added, "usually our families would handle these situations [for] ourselves," and "our parents gave up their children to grandparents for grandparents to raise the children."

{10} The district court asked Ms. Ahtone whether she had anything in writing from Child's Tribe that certified her as an expert in ICWA related matters. Ms. Ahtone stated that she was not sure and would have to look through her records. If Child's Tribe had not certified her as an expert, she believed there were members of Child's Tribe on the foster care review board who could testify instead. The record does not show that the district court ever received clarification on this issue, but the court ultimately qualified Ms. Ahtone as a QEW over Parents’ objections. The district court's decision relied in part on her previous involvement in this case, her experience testifying as an ICWA expert in the past, and the court's finding that she was designated by Child's Tribe as an ICWA expert. The district court did not clearly distinguish her qualifications to testify about each of the two categories of QEW testimony required by ICWA.

{11} In a written judgment, the district court held that the return of Child to Parents was likely to result in serious harm to Child and was not in Child's best interest. It noted that "[a]ctive efforts ha[d] been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and [that] such efforts ha[d] been unsuccessful," and it ordered continued custody by CYFD. The judgment did not mention the cultural standards testimony required of a QEW under ICWA nor did it provide a reason why cultural standards testimony may not be required in this instance. Parents each appealed.

{12} In a consolidated opinion, the Court of Appeals reversed. State ex rel. CYFD v. Douglas B. , 2022-NMCA-028, ¶¶ 1-2, 511 P.3d 357. It held that serious damage to the child and cultural standards of the Indian child's tribe are subjects requiring QEW testimony and that qualifications of an expert on these subjects must be analyzed independently. Id. ¶¶ 17-18. It affirmed the district court's qualification of Ms. Ahtone as an expert on cultural standards. Id. ¶ 29. However, it concluded that the district court abused its discretion in qualifying Ms. Ahtone as an expert on serious damage to the child. Id. ¶ 35. In the absence of reliable testimony by a QEW, the Court of Appeals reversed the district court's abuse and neglect adjudication. Id. ¶ 35. The Court of Appeals remanded the case to the district court for proceedings applying its interpretation of the QEW requirements under State ex rel. CYFD v. Marlene C. (In re Esther V. ), 2011-NMSC-005, 149 N.M. 315, 248 P.3d 863. Douglas B. , 2022-NMCA-028, ¶ 37, 511 P.3d 357. Father filed a petition for certiorari while Mother and CYFD filed separate cross-petitions, all of which this Court granted.

II. DISCUSSION

A. Standard of Review

{13} Interpretation of ICWA and its relationship to New Mexico law presents a question of law that we review de novo. Esther V. , 2011-NMSC-005, ¶ 14, 149 N.M. 315, 248 P.3d 863. "Our overarching goal when interpreting ICWA is to effectuate Congress's intent." Id. ¶ 15. In discerning legislative...