State ex rel. Children, Youth & Families Dep't v. Eric E.
| Docket Number | A-1-CA-40390,A-1-CA-40405 |
| Decision Date | 20 December 2023 |
| Parties | STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. ERIC E., Respondent-Appellant, And CHERYLE E., Respondent, IN THE MATTER OF KELISHAUN B., Child. And STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, CHERYLE E., Respondent-Appellant, And ERIC E., Respondent, IN THE MATTER OF KELISHAUN B., Child. |
| Court | Court of Appeals of New Mexico |
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY Bradford J Dalley, District Court Judge
Children, Youth & Families Department Mary McQueeney Chief Children's Court Attorney Santa Fe, NM Kelly P O'Neill, Children's Court Attorney Albuquerque, NM for Appellee
Cravens Law LLC Richard H. Cravens, IV Albuquerque, NM for Appellant Eric E.
Law Offices of Nancy L. Simmons, P.C. Nancy L. Simmons Albuquerque, NM for Appellant Cheryle E. Therese E. Yanan Farmington, NM Guardian Ad Litem
{¶1} This is an appeal from the adjudication of neglect of K.B. (Child), an Indian child, by his guardians and Indian custodians, Cheryl E. and Eric E. (collectively, Guardians). Both Child and Guardians are enrolled members of the Navajo Nation. This case is governed by the federal Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963 and the New Mexico Abuse and Neglect Act, NMSA 1978, §§ 32A-4-1 to -35 (1993, as amended through 2023).[1] We address Guardians' separate appeals together in this opinion in light of the shared record and common issues. Guardians raise a number of issues on appeal concerning the Voluntary Placement Agreement (VPA) they entered into with the Children, Youth, & Families Department (CYFD) months before CYFD filed a petition for abuse and neglect, as well as issues relating to the adjudication of neglect subsequently entered against them. Because we conclude it is dispositive, we address Guardians' claim that CYFD failed to present sufficient evidence to establish that, prior to the filing of an abuse and neglect petition seeking to remove an Indian child for temporary placement where the parents, guardians, or Indian custodian cannot have the child returned on demand, § 1903(1)(i), "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family." § 1912(d). We agree with Guardians that the evidence at the adjudicatory hearing was insufficient to establish by clear and convincing evidence that CYFD made the concerted, active efforts tailored to the unusual circumstances of this case required by ICWA § 1912(d) prior to the filing of the abuse and neglect petition. We reverse the adjudication of neglect and remand for proceedings consistent with this opinion.
{¶2} Child was born in December 2007 to Arlinda A. (Mother) and Rupert B. (Father). Mother and Father were named as interested parties by CYFD in the abuse and neglect petition that is the subject of this opinion.
{¶3} Eric is Mother's cousin. In 2015, Child was seven or eight years old, in the legal custody of the Navajo Nation and living temporarily at the Navajo Mission. Eric and his then-wife, Cheryle,[2] agreed at the request of Navajo Nation Social Services to take Child into their home. At that time, Child's two older sisters and younger brother were living with Guardians. At one point, Child and four of his siblings, as well his sister's baby, were living with Guardians, along with Guardians' own children.
{¶4} Although Guardians agreed to take Child into their home in 2015, they did so reluctantly because they were aware that Child had lived with Eric's aunt and then with Eric's mother, and that neither had been able to handle Child's problematic behavior. The district court found that Child had significant mental health and behavioral issues because of trauma and mistreatment experienced prior to placement with Guardians.
{¶5} In 2017, after Child had lived with them for two years, Guardians became the legal guardians of Child and two of his siblings in a dependency proceeding pending before the Family Court of the Navajo Nation. The Navajo court found that Child's biological parents were unable or unwilling to care for him at that time, but did not terminate their parental rights.
{¶6} The district court found, based on the testimony at the adjudicatory hearing, that during the years Child was in Guardians' home, there were increasingly severe problems involving Child's behavior, particularly aggression directed at younger children. Guardians sought assistance and advice from Navajo Nation Social Services and CYFD as Child's behavior deteriorated. Guardians obtained counseling for Child and family therapy at Desert View Family Counseling Services. When Child's aggressive behavior toward the younger children in the home escalated, Guardians took him to a hospital, and upon doctor's advice, placed him at Mesilla Valley Hospital's inpatient program for adolescents for seven days.
{¶7} Following this inpatient treatment, Child returned to Guardians' home for approximately two more years. Near the end of that period, in 2019, the medications, counseling, and therapy that Guardians had obtained for Child no longer seemed to be working. Child began harming the family cat, harming himself, collecting sharp objects and hiding them, and threatening to kill Eric. Cheryle testified that she realized that Child needed "a lot more than [she] was capable of doing." Counselors suggested a residential treatment center; doctors at the regional hospital who examined Child agreed. Guardians placed Child at San Marcos Treatment Center, a Texas residential treatment facility, in August 2020. It was after this placement that Cheryle attempted suicide and realized, with the help of therapy, that she was overwhelmed and could not provide the care Child needed if he was returned home.
{¶8} In January 2021, CYFD received a child protective services report from San Marcos alleging neglect by Guardians based on their unwillingness to sign paperwork and otherwise assist in Child's discharge to a less restrictive setting. San Marcos reported that Child would be ready to be discharged from San Marcos in February 2021. Child could not be discharged because Guardians refused to participate in treatment meetings, to sign consents, or to allow Child to be placed back in their home. San Marcos recommended transferring Child to treatment foster care.[3]
{¶9} When contacted by a CYFD investigator about San Marcos's complaint of neglect of Child, Guardians told CYFD that they were unable to continue to care for Child. They informed CYFD that they intended to revoke their guardianship of Child. CYFD and Guardians entered into a VPA in March 2021. Notice was sent to the Navajo Nation.
{¶10} The VPA, approved by the district court on April 16, 2021, gave CYFD temporary legal custody of Child,[4] thereby avoiding CYFD having to immediately file a petition for abuse and neglect against Guardians. CYFD and the district court understood that Guardians were unable to care for Child and would be seeking to relinquish their guardianship of Child in tribal court during the 180 days the VPA was in effect. CYFD agreed that a VPA, giving CYFD temporary legal custody of Child, was in the best interest of Child.
{¶11} Permanency planning worker Corene Martinez, the CYFD caseworker assigned to work with Child and Guardians, informed Guardians that until the guardianship was revoked, they were responsible for attending family-centered meetings and maintaining contact with CYFD and Child. Guardians were also told that if the guardianship was revoked during the pendency of the VPA, CYFD would not file against them for abuse and neglect of Child. A VPA does not prevent CYFD from filing a petition for abuse and neglect either when the VPA expires, or when the parents or guardians terminate the VPA if CYFD has "documented concerns regarding the safety and well-being of your child/children."
{¶12} Guardians hired a lawyer who was a member of the Navajo bar to assist them in obtaining an order revoking the guardianship. Guardians testified that they had little knowledge of how tribal court worked. Their lawyer filed an emergency petition with the tribal court to discharge Guardians in August 2021. When the VPA expired in October 2021, the tribal court had not yet ruled on the motion to revoke the guardianship.
{¶13} During the term of the VPA and following its expiration, Guardians gradually withdrew from their responsibility to remain in contact with CYFD and Child. Although it had legal custody of Child for the six months of the VPA, CYFD did not place Child in treatment foster care as recommended by San Marcos, or with a family member; he remained at San Marcos despite being ready for discharge. At the time CYFD filed its petition against Guardians for abuse and neglect, on December 9, 2021, and took Child into involuntary state custody, Child remained at San Marcos.
{¶14} The petition for abuse and neglect states that CYFD made the following efforts to prevent the breakup of the Indian family prior to removing Child for involuntary placement in state custody: (1) CYFD investigated the report of neglect by San Marcos and entered into a VPA with Guardians; (2) CYFD hosted family-centered meetings; (3) CYFD made multiple attempts to contact Guardians by telephone; (4) CYFD located Child's mother and then lost contact with her; (5) CYFD located another family member "but have not been able to complete the initial relative assessment." The petition states that the efforts were unsuccessful because Guardians refused to communicate with CYFD.
{¶15} On January 11, 2022, a month after the...
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