State ex rel. Children v. James M.
| Decision Date | 05 December 2022 |
| Docket Number | A-1-CA-39480 |
| Parties | STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. JAMES M., Respondent-Appellant, and FARRAH S., Respondent, IN THE MATTER OF JOVAN M., JAM IA M ., and JARROM M ., Children. |
| Court | Court of Appeals of New Mexico |
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY Flora Gallegos District Judge
Children, Youth & Families Department Ma r y McQueeney Chief Children's Court Attorney Santa Fe, NM Kelly P O'Neill, Assistant Children's Court Attorney Albuquerque, NM for Appellee
Susan C. Baker El Prado, NM for Appellant
Victoria W. Doom Las Vegas, NM Guardian Ad Litem
{¶1} The Appellee's motion for rehearing was granted. The opinion filed in this case on September 26, 2022 is hereby withdrawn, and this opinion is substituted in its place.[1]
{¶2} James M. (Father) appeals the district court's order terminating his parental rights to his three children (Children).[2] This case is subject to the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 to 1963. ICWA sets "minimum Federal standards" for the removal of an Indian child from their family, for continued state custody of an Indian child, and, most relevant here, for the termination of parental rights to an Indian child. 25 U.S.C. § 1902.
{¶3} Father raises two issues on appeal, which he contends require reversal of the district court's judgment terminating his parental rights. First, Father contends that ICWA and New Mexico state law require the district court at the adjudicatory hearing to find that Father abused or neglected Children by evidence beyond a reasonable doubt, rather than by clear and convincing evidence. We conclude that ICWA and New Mexico law together require that a district court's findings of abuse and neglect at an adjudication involving an Indian child be supported by clear and convincing evidence, not evidence beyond a reasonable doubt. We, therefore, find no error in the district court's findings at adjudication. [3]
{¶4} Father next contends that the district court's finding pursuant to ICWA, 25 U.S.C. § 1912(d), that the Children, Youth & Families Department (CYFD) made "active efforts" to reunite Father and Children and prevent the breakup of the Indian family was not supported by sufficient evidence at the termination of parental rights (TPR) hearing. We agree with Father that CYFD failed to present evidence sufficient to support the district court's finding beyond a reasonable doubt that the efforts CYFD made to assist Father complied with the "active efforts" requirement of ICWA. We reverse and remand on this basis for proceedings consistent with this opinion.
{¶5} We briefly review the circumstances leading to Children being taken into custody by CYFD, the facts supporting the adjudication of neglect by Father, and Father's treatment plan.
{¶6} Children were in the care of Mother when the abuse and neglect petition was filed on February 14, 2019. Father was living in Louisiana and working as a long-haul truck driver. Mother had previously been involved with Zuni Pueblo's social services agency due to substance abuse resulting in neglect of Children. She did not successfully work her treatment plan.
{¶7} The two older Children had lived with Father from March 2018 until he returned them to Mother eight months later in November 2018. Father testified at the TPR hearing that he returned them, in part, because he believed Mother had stopped using drugs and was doing better. Father knew that a tribal judge had returned Mother's other two children to her in June or July 2018, supporting his belief that Mother was doing better. He hoped at that time to have an ongoing relationship with her.
{¶8} Father testified at the TPR hearing that when he visited in November, he had some concerns but did not see obvious signs that Mother was using drugs. Later, when he called Mother, she started hanging up on him and sounded strange. Father called the police to ask them to do a welfare check on Children. When he did not hear anything about the welfare check, Father made a trip to New Mexico to check on Children. Finding that Mother was drinking, he called CYFD. Although he believed Mother's behavior put Children at risk, he left Children with her and returned to his home and job in Louisiana.
{¶9} In mid-February 2019 Father learned from Mother that Children had been taken into state custody. Father contacted CYFD the next day. At the adjudicatory hearing, Father testified that he did not have the ability to care for Children immediately. He said he was looking for a new job that would allow him to work locally so he could be home with Children. A CYFD investigator testified at the adjudicatory hearing that Father had been able to obtain low-cost housing when Children were living with him, but no longer qualified when he was living on his own. The investigator reported that Father did not have appropriate housing to take care of Children at the time of the adjudication. The district court found, by clear and convincing evidence, that Father had neglected Children, pursuant to Section 32A-4-2(G)(2) (), and found as well, also by clear and convincing evidence, that continued custody of Children by Father was "likely to result in serious emotional or physical damage" to Children, a finding required by ICWA, 25 U.S.C. § 1912(e), because he had placed Children at risk by leaving them with Mother, knowing Mother was drinking and using drugs.
{¶10} The district court's findings state that the court was not persuaded that Father's calls to police and CYFD were adequate to protect Children. Father was ordered to work a treatment plan that required him to obtain safe and stable housing, participate in the Circle of Security parenting classes (a parenting program offered by CYFD), participate in a psychological evaluation and follow the psychologist's recommendations, and participate in a domestic violence assessment and follow the recommendations.
{¶11} We discuss additional evidence later, as necessary to our decision.
{¶12} Father first alleges on appeal that the district court erred in its adjudicatory judgment in failing to apply a beyond a reasonable doubt standard of proof to its finding that Children were neglected by Father. The district court, in its adjudicatory judgment, found by clear and convincing evidence that Father had neglected Children, pursuant to Section 32A-4-2(G)(2) (). Father alleges that the district court applied the wrong standard of proof.
{¶13} Father's argument conflicts with our precedent applying the clear and convincing evidence standard of proof to all required findings at an adjudicatory hearing involving an Indian child. In our decision in State ex rel. Children, Youth & Families Department v. Maisie Y., 2021-NMC A-023, 489 P.3d 964, we held that the state law requirement that the district court find abuse or neglect "on the basis of clear and convincing evidence," § 32A-4-20(H), applies to adjudicatory proceedings concerning an Indian child. Maisie Y., 2021-NMCA-023, ¶ 21. We see no reason to reconsider this precedent, and Father offers none.
{¶14} We note that the ICWA requirement for an additional finding that the return to the parent's custody and care is "likely to result in serious emotional or physical damage to the child" must be proved at the adjudicatory hearing "by clear and convincing evidence," not by evidence beyond a reasonable doubt. 25 U.S.C. § 1912(e). It is only at the TPR hearing that ICWA requires proof beyond a reasonable doubt of the likelihood of serious emotional or physical damage to the child if returned to the parent's care. See 25 U.S.C. § 1912(f) (); cf. 25 U.S.C. § 1912(e) ().
{¶15} New Mexico law adopts these same standards of proof, allowing proof by clear and convincing evidence at an adjudication involving an Indian child, and requiring that ICWA requirements and state law requirements alike be proved by evidence beyond a reasonable doubt at a hearing to terminate parental rights to an Indian child. See Maisie Y., 2021-NMC A-023, ¶ 19 (). {16} In this case, the district court properly found neglect by Father under Section 32A-4-2(G)(2) at the adjudicatory hearing, applying the clear and convincing evidence standard of proof, and in contrast, made its finding of neglect at the TPR hearing by evidence beyond a reasonable doubt.[4] We do not see any error in these findings or in the standard of proof applied by the district court at either the adjudicatory hearing or the TPR hearing.
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