State ex rel. Children, Youth & Families Dep't v. Douglas B.
| Decision Date | 22 October 2021 |
| Docket Number | s. A-1-CA-38910 & A-1-CA-38983 (consolidated for the purpose of opinion) |
| Parties | STATE of New Mexico EX REL. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. DOUGLAS B., Respondent-Appellant, and Sara E., Respondent, In the Matter of Abigail B., Child. State of New Mexico ex rel. Children, Youth & Families Department, Petitioner-Appellee, v. Sara E., Respondent-Appellant, and Douglas B., Respondent, In the Matter of Abigail B., Child. |
| Court | Court of Appeals of New Mexico |
Children, Youth & Families Department, Mary McQueeney, Acting Chief Children's Court Attorney, Robert Retherford, Children's Court Attorney, Santa Fe, NM, for Appellee
Law Offices of Nancy L. Simmons, P.C., Nancy L. Simmons, Albuquerque, NM, for Appellant Douglas B.
Susan C. Baker, El Prado, NM, for Appellant Sara E.
Gail Chasey, Albuquerque, NM, Guardian Ad Litem.
{1} This consolidated opinion addresses two separate appeals: State ex rel. Children, Youth & Families Department v. Douglas B. and State ex rel. Children, Youth & Families Department v. Sara E . Because the appeals stem from the same nexus of facts and raise substantially similar issues involving child abuse and neglect proceedings and the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 to - 1963 (1978, as amended through 2021), we exercise our discretion to consolidate them for decision. See Rule 12-317(B) NMRA.
{2} Douglas B. (Father) and Sara E. (Mother) (collectively, Parents) appeal the district court's finding that Abigail B. (Child) is an abused and neglected child and the district court's placement of Child in the custody of the Children, Youth and Families Department (CYFD). Parents raise three arguments on appeal. They contend that (1) CYFD did not prove that active efforts were made to preserve the family by clear and convincing evidence; (2) CYFD's proffered qualified expert witness was not qualified; and (3) the expert did not offer the testimony required by ICWA to allow for Child's removal from Parents’ custody. Because we agree that the proffered expert was not qualified to testify as to whether Child's continued custody by Parents is likely to result in serious emotional or physical damage to Child, we reverse and remand for a new adjudicatory hearing consistent with this opinion.
{3} On October 16, 2018, CYFD received a referral from a source alleging that Child was abused and neglected by Parents. Child told the source that "she is cutting herself off and on[,] ... [that] she [was] very depressed ... [and that] she was going to run away and wanted to kill herself." Child stated that Mother and Father "are constantly fighting with each other" and that "[Father] is an alcoholic." According to Child, these fights "happen[ ] all of the time" and have, on more than one occasion, involved Parents throwing objects at one another, including wine glasses and a laptop computer.
{4} CYFD developed a safety plan to enable Child to stay in Parents’ home. However, several of Child's family members expressed concern about "severe domestic violence occurring in the home[.]" Family members also told CYFD that Parents were using methamphetamine and abusing alcohol. "[B]ecause of the safety risks created by the ongoing domestic violence in the home and the concerns of drug use and inadequate shelter," CYFD took custody of Child. Child was temporarily placed with Father's sister, Kimberly B. (Aunt).
{5} On October 23, 2018, CYFD filed a petition alleging that Child was abused and neglected by Parents. At the time of its petition, CYFD did not know that Child was an Indian child for purposes of ICWA because Parents "refused to provide information concerning [Child]’s ancestry." During an October 31, 2018 hearing, counsel for CYFD informed the court that because she was only notified of Child's Native American heritage two days before the hearing, an ICWA notice had not yet been mailed to the tribe in which Child might be eligible for membership, the Wichita and Affiliated Tribe of Oklahoma (the Tribe). CYFD sent the Tribe notice of Child's possible tribal affiliation, the Tribe informed CYFD that Child was eligible for membership, and the Tribe intervened in Child's case.
{6} Over the course of several hearings, the district court heard testimony from a number of witnesses regarding the allegations of abuse. Aunt—Father's sister and Child's temporary foster parent—testified that she had concerns about Child's safety given the frequent domestic violence in Parents’ home. Aunt testified that Father was not sober and that Father had recently told her that he had been using methamphetamine "for a very long time." Aunt also testified that Parents’ home was cluttered, that Child's window had been broken and boarded up, and that she was worried about Child's safety in the event of a fire in the home.
{7} Child testified that she did not want to go home because of the fighting between Parents that occurred "once every other day or it would go on all night long." On one occasion, Father broke Child's bedroom door in order to reach Mother who was inside Child's bedroom; as Father came through Child's bedroom door, Mother grabbed Child's laptop and "smashed it over [Father's] head." When asked to describe her mental health, Child replied that she feels "empty," as if she were "in [a] dark hole that never ends." Child acknowledged that she had been cutting her wrists.
{8} CYFD permanency planning supervisor Michelle Herrera testified about CYFD's efforts to provide services to the family. Prior to the adjudicatory hearings, Herrera convened a meeting with Parents and their attorneys to discuss CYFD's expectations and processes, including visitation with Child. Although such meetings are not typically arranged, Herrera deemed the meeting necessary as it had become difficult to converse with Parents who frequently engaged in "yelling ... threats, and arguing." Herrera testified that CYFD attempted to provide (1) psychosocial assessments for Parents to further determine their strengths and opportunities for growth with respect to parenting Child; (2) psychological evaluations; (3) visitation with Child; (4) random drug testing for Parents; (5) substance abuse assessments; (6) mental health assessments for Parents; and (7) domestic violence assessments for Parents. Parents refused to participate in CYFD's recommended services, insisting that they would only participate in services if they were court-ordered. However, when the district court adopted the proposed treatment plan, Parents objected and specifically took issue with the drug testing requirements.
{9} Herrera also testified about efforts to communicate with Parents and accommodate visitation. CYFD attempted to schedule visitation on weekdays, but this conflicted with Parents’ schedules, so CYFD sought volunteers to accommodate weekend visits for Parents. Parents did not show up for the first scheduled visit and missed the second scheduled visit. Due to Parents’ failure to appear, visitation with Child was suspended but resumed six months later upon Mother's request. Parents instructed CYFD to contact them only through their attorneys, so CYFD sent monthly letters and regular emails to Parents’ attorneys to provide Parents with information regarding Child, including her academic progress and copies of case plans. Herrera explained that these communications also included offers to schedule service appointments for Parents and encouraged them to reach out to CYFD if they had any questions or concerns.
{10} The district court also heard from Kyli Ahtone, an ICWA caseworker employed by Child's Tribe. She testified that she was a member of the Apache Tribe of Oklahoma—a tribe closely related to Child's Tribe. She was familiar with the Tribe's social and cultural expectations with respect to family organization based on her own personal experience. Ahtone also testified that she had significant experience working ICWA cases, had access to tribal members with whom she could consult for additional knowledge when necessary, had attended numerous trainings on ICWA, and had testified as a qualified expert witness more times than she could remember. The district court accepted Ahtone as a qualified "ICWA expert" witness. Ahtone ultimately opined that CYFD made active efforts to provide remedial services and rehabilitative programs intended to prevent the breakup of the Indian family and that "continued custody by ... Parents would likely result in serious emotional or physical harm for ... Child."
{11} The district court adjudicated Child as abused and neglected and ordered that Child remain in CYFD custody under the care of Aunt. Father and Mother separately appeal, and we consolidate their appeals for decision.
{12} The Abuse and Neglect Act (ANA), NMSA 1978, §§ 32A-4-1 to -35 (1993, as amended through 2021), our statutory framework for addressing child abuse and neglect in New Mexico, "represents a continuum of proceedings which begins with the filing of a petition for neglect or abuse and culminates in the termination of parental rights." State ex rel. Child., Youth & Fams. Dep't v. Maria C. , 2004-NMCA-083, ¶ 25, 136 N.M. 53, 94 P.3d 796. Between these two fixed points lies the adjudicatory hearing, during which the court determines whether a child has, as CYFD alleges, been abused and neglected. See State ex rel. Child., Youth & Fams. Dep't v. Melvin C. , 2015-NMCA-067, ¶¶ 11-15, 350 P.3d 1251 (). Parents argue that CYFD failed to present a qualified expert witness during the adjudicatory hearing and that the district court committed reversible error by allowing Ahtone, CYFD's proffered "ICWA expert[,]" to testify without the necessary foundation. We agree.
{13} Before addressing the parties’ arguments on the merits, we begin by clarifying the...
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