State ex rel. Children, Youth & Families Dep't v. Yodell B. (In re Tyrell B.)

• Decision Date: 21 December 2015
• Docket Number: No. 33,990.,33,990.
• Citation: 367 P.3d 881
• Parties: STATE of New Mexico, ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner–Appellee, v. YODELL B., Respondent–Appellant, and In the Matter of Tyrell B., a Child.
• Court: Court of Appeals of New Mexico

367 P.3d 881

STATE of New Mexico, ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner–Appellee,

v.YODELL B., Respondent–Appellant,andIn the Matter of Tyrell B., a Child.

No. 33,990.

Court of Appeals of New Mexico.

Dec. 21, 2015.

Charles E. Neelley, Chief Children's Court Attorney, Kelly P. O'Neill, Assistant Children's Court Attorney, Albuquerque, NM for Appellee.

Robert E. Tangora, L.L.C., Robert E. Tangora, Santa Fe, NM, for Appellant.

Begaye Law Firm, Catherine A. Begaye, Albuquerque, NM, Guardian Ad Litem for Child.

OPINION

ZAMORA

, Judge.

{1} Yodell B. (Father) appeals the termination of his parental rights to T.B. (Child). Father argues the evidence presented at the termination of parental rights trial (TPR) was insufficient to support the district court's finding that the Children, Youth, and Families Department (the Department) made active efforts to provide him with remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and that those efforts were unsuccessful as is required by 25 U.S.C. § 1912(d) (2013)

of the federal Indian Child Welfare Act, 25 U.S.C. §§ 1901 to 1963 (2013) (the ICWA). We hold that the evidence presented at the TPR was insufficient to show the Department complied with the active efforts requirement of 25 U.S.C. § 1912(d). Because a showing of active efforts is a mandatory predicate to the termination of parental rights under the ICWA, we reverse the district court's termination order and remand for proceedings consistent with this Opinion.

BACKGROUND

{2} On October 18, 2011, the Department filed a neglect/abuse petition against Colynn B. (Mother) and Father regarding Child, an enrolled member of the Navajo Nation. Child was taken into the Department's custody due to injuries Child sustained in Mother‘s care and concerns regarding Mother's mental health. At the time Child was taken into the Department's custody, Mother had been hospitalized for psychiatric treatment and Father's whereabouts were unknown to the Department.

{3} A custody hearing was held on November 1, 2011. Because Mother was not able to safely care for Child at that time and the Department was unable to locate Father as a possible placement, the district court ordered Child to remain in the Department's custody. On January 19, 2012, the adjudication was scheduled; however, Father still had not been located.

{4} Father was served with the neglect/abuse petition on February 22, 2012. The same day, Father met with the Department's permanency planning worker and together the two developed Father's treatment plan. The treatment plan required Father to be assessed for drug and alcohol abuse, parenting skills, and domestic violence. Father was also required to complete parenting and domestic violence programs. The permanency planning worker discussed with Father some service providers in or near Crownpoint, New Mexico, where Father lived. Father was responsible for setting up services and ensuring that appropriate release forms were signed so the Department could verify his receipt of services and for ensuring the service providers updated the permanency planning worker on Father's progress. Father's treatment plan also required that he participate in visitation with Child as arranged by the Department, engage in education and/or employment, maintain a safe and stable home, and keep in contact with the Department.

{5} On April 13, 2012, the second adjudication was held and Father entered a plea of no contest to the allegations of neglect in the neglect/abuse petition, pursuant to NMSA 1978, Section 32A–4–2(E)(2) (2009)

. Father was not present for permanency hearings held on August 15, 2012, or November 21, 2012. At the August 15, 2012 hearing, the permanency planning worker reported that Father was attempting to set up services in compliance with his treatment plan, but that he was experiencing difficulty. At the November 21, 2012 hearing, the permanency planning worker reported that Father was participating in a parenting program, but that he had not completed any of the other items on his treatment plan. She also stated that Father contacted her once to set up visitation, but that the visit could not be coordinated with the foster parents, and Father did not contact her again to set up visitation. After the hearing, the district court changed Child's permanency plan to adoption with a concurrent plan of reunification.

{6} On September 11, 2013, the Department filed a motion to terminate parental rights of Mother and Father. The TPR was held on March 7, 2014. Notice of the trial was sent to Father's attorney on October 21, 2013. At the beginning of the TPR, Father's attorney moved for a continuance because she had been unable to contact Father until two days before the hearing. The district court denied the motion. Mother voluntarily relinquished her rights, and the trial proceeded on the termination of Father's rights.

At the conclusion of the trial, the district court determined that the Department's motion to terminate should be granted and it terminated Father's parental rights in the Child. This appeal followed.

DISCUSSION

{7} On appeal, Father argues that the district court erred in denying the motion to continue the TPR. He also challenges the sufficiency of the evidence to support the termination of his parental rights. Specifically, Father claims there was insufficient evidence of neglect and abandonment and that there was insufficient evidence of the Department's active efforts to prevent the breakup of the family as required by 25 U.S.C. § 1912(d)

. Because our holding that the Department's failure to present sufficient evidence of active efforts at the TPR is dispositive of this appeal, we do not address Father's other arguments.

The Active Efforts Requirement

{8} Under the ICWA, a party seeking to terminate parental rights "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." 25 U.S.C. § 1912(d)

. In reviewing for sufficient evidence of active efforts, our role "is to determine whether the fact[-]finder could properly conclude that the proof requirement below was met." State ex rel. Children, Youth & Families Dep't v. Patricia H., 2002–NMCA–061, ¶ 22, 132 N.M. 299, 47 P.3d 859. Unlike 25 U.S.C. § 1912(e) and (f), 25 U.S.C. § 1912(d) does not specify the standard of proof applicable to the active efforts requirement. See 25 U.S.C. § 1912(e) ("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." (emphasis added)); 25 U.S.C. § 1912(f) ("No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, 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." (emphasis added)). Section 1912(d) also does not define the term "active efforts."

{9} New Mexico caselaw pertaining to the ICWA's active efforts requirement also does not resolve either of these issues. For example, in In re Esther V., our Supreme Court reversed an adjudication of neglect and remanded for a new adjudicatory hearing, holding that the district court was required to make findings as to the department's compliance with 25 U.S.C. § 1912(d)

and (e), at the adjudication stage of abuse and neglect proceedings. In re Esther V., 2011–NMSC–005, ¶¶ 36, 46, 149 N.M. 315, 248 P.3d 863. In State ex rel., Children, Youth & Families Department v. Casey J., this Court addressed whether deviation from the ICWA's placement preferences constituted a violation of the active efforts requirement. 2015–NMCA–088, ¶¶ 14–15, 355 P.3d 814. We held that "the provision of remedial services and rehabilitative programs under [25 U.S.C.] § 1912(d) supports the continued custody that is protected by [25 U.S.C. § 1912(e), (f) ]. It does not apply to facilitate the placement of the child in compliance with the placement preferences listed in [25 U.S.C.] § 1915." Casey J., 2015–NMCA–088, ¶ 14, 355 P.3d 814 (alteration, internal quotation marks, and citations omitted).

{10} State ex rel. Children Youth & Families Department v. Arthur C., is the only New Mexico case in which a parent, whose parental rights were terminated, challenged the district court's finding that the active efforts requirement had been met. 2011–NMCA–022, ¶¶ 41–45, 149 N.M. 472, 251 P.3d 729

. In that case, the district court found beyond a reasonable doubt that the department made active efforts to provide remedial services and rehabilitative programs to prevent the breakup of the Indian family and such efforts were unsuccessful. Id. ¶ 8. Because the evidence was sufficient to establish the department's active efforts under the standard applied by the district court, and because the standard was not challenged on appeal, the question of whether the district court applied the appropriate standard was not addressed on appeal. Id. ¶ 45; see Fernandez v. Farmers Ins. Co. of Ariz., 1993–NMSC–035, ¶ 15, 115 N.M. 622, 857 P.2d 22

("The general rule is that cases are not authority for propositions not considered." (internal quotation marks and citation omitted)).

{11} In the present case, like in Arthur C., the district court determined that the evidence established, "beyond a reasonable doubt," that the active efforts requirement was met. Although Father does not challenge the evidentiary standard applied by the district court, our review of the record indicates that the evidence of active efforts presented at the...