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                                                         New Mexico Compilation
                                                       Commission, Santa Fe, NM
                                                      '00'04- 16:15:14 2013.06.08
       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-062

Filing Date: April 9, 2013

Docket No. 31,784

STATE OF NEW MEXICO,
ex rel., CHILDREN, YOUTH
and FAMILIES DEPARTMENT,

       Petitioner-Appellee,

v.

MARSALEE P.,

       Respondent-Defendant,

and

STANLEY P.,

       Respondent,

and

IN THE MATTER OF DA’VONDRE P.,
WHITLEY P., and JORDAN P.,

       Children.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Sandra A. Price, District Judge

New Mexico Children, Youth and Families Department
Charles E. Neelley, Chief Children’s Court Attorney
Rebecca J. Liggett, Children’s Court Attorney
Santa Fe, NM

for Appellee

Caren I. Friedman

                                        1
Santa Fe, NM

for Appellant

Richard J. Austin
Farmington, NM

Guardian ad litem

                                          OPINION

WECHSLER, Judge.

{1}      We examine in this appeal of a parental termination order circumstances that require
the district court and Petitioner Children, Youth and Families Department (the Department)
to fulfill obligations under the Abuse and Neglect Act, NMSA 1978, Sections 32A-4-1 to
-34 (1993, as amended through 2009). We hold that the district court erred by terminating
Mother’s parental rights without ensuring that the Department had complied with Section
32A-4-22(I) of the Abuse and Neglect Act, which mandates that the Department “shall
pursue the enrollment” on behalf of children eligible for enrollment in an Indian tribe.
Accordingly, we reverse the termination of Mother’s parental rights and remand to the
district court.

BACKGROUND PRIOR TO PARENTAL TERMINATION TRIAL

{2}    The Department filed a neglect/abuse petition in August 2010 against Mother
regarding three of her children, Da’Vondre P., Whitley P., and Jordan P. (collectively, the
children). The Department took custody of the children on August 9, 2010 because of
unsanitary living conditions and illegal drug use by Mother and the children’s father.

{3}     The district court held a custody hearing on August 23, 2010 and filed a custody
order on August 24, 2010. The Department stipulated that the Indian Child Welfare Act
(ICWA), 25 U.S.C. §§ 1901 to 1963 (1978), applied because the children were eligible for
enrollment in the Navajo Nation. The order states that “[t]he children are eligible for
enrollment with the Navajo Nation and are therefore subject to [ICWA].” In the
predispositional study, the Department acknowledged that two of the children were eligible
for enrollment into the Navajo Nation “if . . . [M]other . . . chooses to enroll.” Additionally,
the report states that all three children are “eligible for enrollment in the Navajo [Nation].
[Mother] is not enrolled in the [Navajo Nation].”

{4}     The district court held an adjudicatory hearing on October 4, 2010. After the hearing,
the district court entered a judgment adjudicating the children as abused and providing the
Department custody of the children. In the judgment, the district court stated that the
children were not subject to ICWA. Likewise, the initial judicial review order entered in

                                               2
January 2011 contained a statement that the children were not subject to ICWA. The district
court reached an identical conclusion in its status review and change of plan hearing order
filed on April 5, 2011. Despite its previous stipulation to the contrary, the Department
subsequently filed a motion to terminate parental rights in which it contended that the
children were not subject to ICWA.

REQUEST FOR CONTINUANCE AND TRIAL

{5}     At the beginning of the termination of parental rights trial, Mother’s counsel
requested a continuance so that the provisions of ICWA could be followed. Before Mother
arrived at trial, Mother’s counsel stated that he believed that Mother and the children were
now enrolled in the Navajo Nation, or at the very least, Mother was trying to get herself and
the children enrolled in the Navajo Nation. As a result, Mother’s counsel argued that the
case was subject to the provisions of ICWA. The Department argued that, at the beginning
of the case, neither Mother nor children were enrolled in the Navajo Nation and therefore
ICWA did not apply.

{6}      The district court agreed that if Mother arrived at the hearing and had a certificate
of Indian blood (CIB) issued by the Bureau of Indian Affairs (BIA), ICWA would apply, and
the trial would need to be continued. The district court expressly stated that it perceived that
Mother’s effort to enroll in the Navajo Nation was a “last minute tactic.” Mother’s counsel
then pointed out that the custody hearing order contained the stipulation that the children
were subject to ICWA. The Department responded that it had received a letter from the
Navajo Nation stating that the children were not eligible for enrollment and that, as a result,
the October 2010 adjudicatory order changed the initial determination that ICWA applied.

{7}    Once Mother arrived at the trial, the district court inquired as to whether Mother had
completed enrollment. Mother disclosed that she did not have a CIB and that she had not
completed enrollment but that she was pursuing enrollment for herself and the children.
Mother’s counsel then read into the record a letter from the Navajo Nation’s tribal
enrollment services that stated that Mother came to its offices to enroll herself and her six
children and that Mother was eligible to enroll. The letter continued that the tribal
enrollment office is waiting for additional documentation in order to process the application.
Mother, who was adopted, explained that her application for enrollment had to proceed
through a review board to trace her lineage to determine whether she is the child of the
woman she identifies to be her biological mother and that the process takes about six weeks.

{8}     The district court stated that it had known since the custody hearing that Mother was
eligible to enroll and was still not enrolled and that the trial would go forward without
application of ICWA. The district court stated that the ICWA issue was in the same position
as it was on “day one,” which was that Mother knew she was eligible but knew there were
things she had to do in order to get enrolled. Therefore, because Mother was not enrolled
at the date of the trial, the district court proceeded with the trial.


                                               3
{9}      During the trial, Mother testified that she began the enrollment process into the
Navajo Nation once she received paperwork from the state of California regarding her
adoption, several months before the trial. She stated that it took six years to get the
paperwork because it was a closed adoption. Mother testified that her birth certificate listed
her adoptive mother as her mother and that she needed a birth certificate that listed her
biological mother in order to enroll. She stated that her mother was full Navajo, that Mother
was one-half Navajo, and that the children were therefore one-quarter Navajo. She further
testified that she still needed her marriage license, divorce decree from her first marriage,
and two of the children’s birth certificates in order to complete the enrollment process.

{10} At the conclusion of trial, the district court announced its ruling from the bench.
Specifically regarding ICWA, the district court held that there was no evidence that Mother
was enrolled with any tribe and that therefore ICWA did not apply. The district court
advised Mother to continue the process of enrolling the children and that if she is successful,
ICWA’s placement preferences would apply. The district court then found by clear and
convincing evidence that Mother had not alleviated the conditions and causes that brought
the children into the Department’s custody. The district court terminated Mother’s parental
rights.

ARGUMENTS ON APPEAL

{11} Mother filed a timely appeal and focuses her arguments on whether the district court
erred in failing to apply the protections of ICWA. Particularly, Mother argues that (1) the
district court erred by determining that the children were not Indian children as defined by
ICWA and therefore erred by refusing to apply the substantive requirements of ICWA,
including (a) making necessary findings pursuant to 25 U.S.C. § 1912(d), (e); (b) giving
preferential foster care placement of the children to the children’s extended family, pursuant
to 25 U.S.C. § 1915; and (c) applying the higher standard of proof required by 25 U.S.C. §
1912(f) than in non-ICWA termination proceedings; (2) the Department failed in its
obligation to pursue enrollment on behalf of the children pursuant to Section 32A-4-22(I)
of the Abuse and Neglect Act; and (3) the district court erred in conducting the trial and
terminating Mother’s parental rights despite the Department’s failure to comply with
ICWA’s notice requirement in 25 U.S.C. § 1912(a).

{12} “The interpretation of ICWA and its relationship to [the Abuse and Neglect Act]
present questions of law that we review de novo.” State ex rel. Children, Youth & Families
Dep’t v. Marlene C., 2011-NMSC-005, ¶ 14, 149 N.M. 315, 248 P.3d 863. Additionally, we
review interpretations of the Abuse and Neglect Act de novo. See State ex rel. Children,
Youth & Families Dep’t v. Benjamin O., 2007-NMCA-070, ¶ 24, 141 N.M. 692, 160 P.3d
601. “ICWA is a remedial statute in that it was enacted to stem the alarmingly high
percentage of Indian families being separated by removal of children through custody
proceedings[,]” and we therefore construe it liberally in order to effectuate its purpose.
Marlene C., 2011-NMSC-005, ¶ 17 (internal quotation marks and citation omitted).


                                              4
ICWA AND THE ABUSE AND NEGLECT ACT

Generally

{13} We begin by briefly discussing ICWA and its relationship to the New Mexico Abuse
and Neglect Act, which underlies the issues in this appeal. Congress enacted ICWA in 1978
to govern proceedings for the termination of parental rights, adoptions, and foster care
placement involving Indian children. See 25 U.S.C. §§ 1901 to 1963. In enacting ICWA,
Congress determined “that there is no resource that is more vital to the continued existence
and integrity of Indian tribes than their children and that the United States has a direct
interest, as trustee, in protecting Indian children who are members of or are eligible for
membership in an Indian tribe[.]” 25 U.S.C. § 1901(3). Additionally, Congress found “that
the [s]tates, exercising their recognized jurisdiction over Indian child custody proceedings
through administrative and judicial bodies, have often failed to recognize the essential tribal
relations of Indian people and the cultural and social standards prevailing in Indian
communities and families.” 25 U.S.C. § 1901(5). As a result, ICWA is intended to
“promote the stability and security of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will reflect the unique values
of Indian culture, and by providing for assistance to Indian tribes in the operation of child
and family service programs.” 25 U.S.C. § 1902.

{14} When ICWA applies to a termination proceeding, it provides several minimum
substantive and procedural protections that must be used as opposed to the standards used
under state law. For example, before terminating a parent’s parental rights to an Indian
child, ICWA requires the state court to make a determination, on the record, that beyond a
reasonable doubt, termination is required to prevent serious emotional or physical damage
to the Indian child. 25 U.S.C. § 1912(f). When the proceedings involve foster placement,
ICWA requires the state court to give preference to placement of the child with a member
of the child’s extended family, with the tribe, or with another Indian family. 25 U.S.C. §
1915(a). In determining whether good cause exists for placement outside of the Indian
community, the state court is directed to examine the reasons given in light of “the prevailing
social and cultural standards of the Indian community.” 25 U.S.C. § 1915(d). Additionally,
ICWA requires that notice of the proceeding be given to the Indian parent and the Indian
tribe and that the tribe be given the opportunity to intervene in the proceedings. 25 U.S.C.
§§ 1911(c), 1912(a).

{15} The New Mexico Abuse and Neglect Act contains several provisions designed to
effectuate ICWA. For example, when the Department takes custody of a child, the
Department “shall make reasonable efforts to determine whether the child is an Indian
child.” Section 32A-4-6(C). If the Department determines that the child is an Indian child,
the Abuse and Neglect Act requires that the Department give notice of the proceedings to
the Indian tribe in accordance with ICWA. Section 32A-4-6(D). Section 32A-4-9 contains
placement preferences for foster care and pre-adoptive placement of an Indian child that

                                              5
mirror ICWA’s placement preferences. Section 32A-4-21(B)(9) requires the Department to
provide information in the predispositional report to the district court addressing whether the
child is an Indian child, and if so, whether ICWA’s placement preferences were followed and
whether the child’s treatment plan provides for maintaining the child’s cultural ties. The
district court is then required to make factual findings regarding these issues in its
dispositional judgment. Section 32A-4-22(A)(11).

{16} The Abuse and Neglect Act also contains the procedures for terminating the parental
rights of an Indian child. When the Department files a motion for terminating the parental
rights of an Indian child, the Department must include in its motion whether the child “is
subject to” ICWA, and if so, it must state (1) the tribal affiliations of the parents; (2) the
specific actions taken by the Department to notify the Indian tribes, including supporting
documentation; and (3) the specific actions taken to comply with the placement preferences
of ICWA. Section 32A-4-29(B)(7). Before terminating the parental rights of a child subject
to ICWA, the district court must ensure that the termination complied with ICWA. Section
32A-4-28(E).

Application

{17} We first address Mother’s argument that the district court erred by holding the trial
without applying the substantive and procedural provisions of ICWA and the accompanying
provisions in the Abuse and Neglect Act, including (a) making necessary findings pursuant
to 25 U.S.C. § 1912(d), (e); (b) giving preferential foster care placement of the children to
the children’s extended family pursuant to 25 U.S.C. § 1915; and (c) applying the higher
standard of proof required by 25 U.S.C. § 1912(f) than in non-ICWA termination
proceedings. Mother argues that the children are “Indian child[ren]” as defined by ICWA
and the Abuse and Neglect Act, and, therefore, the district court should have applied ICWA
at the trial.

{18} ICWA and the Abuse and Neglect Act define “Indian child” as “any unmarried
person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is
eligible for membership in an Indian tribe and is the biological child of a member of an
Indian tribe[.]” 25 U.S.C. § 1903(4); see also NMSA 1978, § 32A-1-4(K) (2009). By its
express terms, the children are “Indian child[ren]” as defined by ICWA if (1) the children
are “member[s]” of the Navajo Nation, or (2) the children are “eligible for membership” and
Mother is a “member” of the Navajo Nation. 25 U.S.C. § 1903(4). It is undisputed by both
Mother and the Department that both Mother and the children are eligible to enroll in the
Navajo Nation but are not formally enrolled. The parties do dispute, however, whether the
eligibility for enrollment of Mother and the children in the Navajo Nation is sufficient to
make either Mother or the children “member[s]” for purposes of ICWA. Id.

{19} As we have discussed, the district court premised its determination that ICWA does
not apply on the failure of Mother and the children to be formally enrolled at the time of the
trial. Apparently, it was the district court’s view that in order to be a “member” Mother or

                                              6
the children must be formally enrolled in the Navajo Nation. Mother argues that the district
court erroneously based its refusal to apply ICWA on the fact that Mother had not yet
obtained her CIB or was not formally enrolled by the Navajo Nation. Mother contends that
“member,” in the context of ICWA’s definition of Indian child, is a flexible term, not limited
to persons formally enrolled with an Indian tribe or those issued a CIB by the BIA. See
Cohen’s Handbook of Federal Indian Law § 11.02[2], at 827 (2005) (“[T]he term ‘member’
is flexible, not limited to persons formally enrolled or possessing a [CIB] issued by the
BIA.”).

{20} Mother fails to argue or explain how or why she and the children are to be considered
“members” of the Navajo Nation other than arguing that the term “member” is flexible. We
reject Mother’s argument that either she or the children are “members” of the Navajo Nation
on this basis alone. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M.
339, 110 P.3d 1076 (stating that we will not review unclear or undeveloped arguments).
Even if we were to address Mother’s argument, it appears that, at least in the context of the
Navajo Nation and ICWA, enrollment with the Navajo Nation is synonymous with
membership in this case. See In re Guardianship of Ashley Elizabeth R., 116 N.M. 416, 417,
863 P.2d 451, 452 (Ct. App. 1993) (characterizing children not registered with the Navajo
Nation as “eligible for membership”); see also Nielson v. Ketchum, 640 F.3d 1117, 1124
(10th Cir. 2011) (holding that a child did not fit the definition of Indian child because neither
the child nor the mother was enrolled in the Indian tribe).

{21} We therefore proceed under the assumption that Mother and the children are not
“members” of the Navajo Nation and instead are eligible to be members subject to the
completion of the enrollment process. Because neither Mother nor the children are
“members” of the Navajo Nation, the children do not meet either definition of “Indian
child[ren]” under ICWA. See 25 U.S.C. § 1903(4) (defining Indian child as when the child
is a member of an Indian tribe or the child is eligible to be a member and is the biological
child of a member). We must nevertheless determine the requirements of ICWA and the
New Mexico Abuse and Neglect Act regarding children who are not technically Indian
children under ICWA but who are eligible for enrollment as members in an Indian tribe.

Section 32A-4-22(I)

{22} In this regard, Mother argues that the Department failed in its obligation under
Section 32A-4-22(I) of the Abuse and Neglect Act to pursue enrollment on behalf of the
children who were eligible for enrollment. Section 32A-4-22(I) states that “[w]hen a child
is placed in the custody of the [D]epartment, the [D]epartment shall investigate whether the
child is eligible for enrollment as a member of an Indian tribe and, if so, the [D]epartment
shall pursue the enrollment on the child’s behalf.” Mother contends that the record does not
reflect that the Department made any efforts in pursuing the enrollment of the children
despite knowing early in the proceedings that the children were eligible for enrollment.

{23}    As we have discussed, the Department stipulated prior to the August 24, 2010

                                               7
custody order that the children were eligible for enrollment in the Navajo Nation, and the
district court memorialized this stipulation in the custody order. Likewise, the Department
acknowledged in the predispositional reports adopted by the district court that the children
were eligible for enrollment. Although the Department essentially argues that something
happened between the custody hearing and the adjudicatory hearing that led it to believe that
ICWA does not apply to the children, it acknowledges that the reason it reached the
conclusion is unclear from the record. Mother testified during the adjudication that she was
not currently registered with the Navajo Nation in response to a question from the
Department. From this point forward, the district court’s judicial review and status review
orders stated that the children were not subject to ICWA. However, at the beginning of the
trial, Mother disclosed to the district court that she received a letter from the Navajo Nation
tribal enrollment services stating that she and the children were eligible for enrollment and
that Mother was pursuing enrollment.

{24} Despite this information, the Department stated that it had no concerns about going
forward with the trial at that time without applying ICWA. By taking this position despite
knowing early in the case that the children were in fact eligible for enrollment and learning,
at least at trial, that Mother had started the enrollment process, the Department failed to
fulfill its obligation under Section 32A-4-22(I) that it “shall pursue the enrollment on the
child[ren]’s behalf.” Under this circumstance, the Department should not have pursued
going forward with the trial and should have agreed to the continuance requested by Mother
in order to investigate the children’s eligibility for enrollment and help Mother pursue
enrollment if necessary.

{25} We hold that the district court erred by terminating Mother’s parental rights before
it ensured that the Department fully complied with Section 32A-4-22(I). The district court
has an affirmative obligation to make sure that the requirements of the Abuse and Neglect
Act are followed prior to the termination of something as fundamental as the parental rights
to a child. See State ex rel. Children, Youth & Families Dep’t v. Hector C.,
2008-NMCA-079, ¶ 11, 144 N.M. 222, 185 P.3d 1072 (“Terminating parental rights
implicates rights of fundamental importance.”); cf. State ex rel. Children, Youth & Families
Dep’t v. Maria C., 2004-NMCA-083, ¶ 52, 136 N.M. 53, 94 P.3d 796 (holding that the
district court has an affirmative duty to protect a parent’s due process right throughout a
termination proceeding). The record is largely devoid of any attempts the Department made
to facilitate the enrollment of the children prior to trial. By then, it was clear to the
Department that the children were eligible, that Mother had undertaken efforts to attempt to
achieve her and their enrollment, and that Mother was delayed due at least in part to a unique
circumstance associated with Mother’s own adoption and information recorded on one or
more of her birth certificates. Thus, we are unable to ascertain the extent the Department
complied with Section 32A-4-22(I)’s mandate over the course of the proceedings leading up
to the trial. At a minimum, the Department should not have contested the continuance
requested by Mother upon learning that Mother had begun the enrollment process with the
children.


                                              8
{26} This case illustrates the important need for district courts to ensure that the
Department strictly complies with Section 32A-4-22(I). Had the Department fulfilled its
obligation to pursue enrollment on behalf of the children, the children’s status would have
been determined by the start of the trial. Instead, the district court was faced with an
untenable situation in which, on the day of the trial, the status of the children still was not
conclusively determined by the Navajo Nation, the children remained merely eligible for
enrollment, and the Department wished to press forward with trial by opposing Mother’s
request for a continuance. It was error for the district court to terminate Mother’s parental
rights before the Department fulfilled its obligation. Because of our disposition, we do not
reach Mother’s argument regarding whether the Navajo Nation was entitled to notice of the
proceedings under ICWA.

CONCLUSION

{27} We hold that the district court has an affirmative obligation to ensure that the
Department complies with Section 32A-4-22(I) before terminating a parent’s parental rights.
Because the district court terminated Mother’s parental rights before the Department fulfilled
its obligation under Section 32A-4-22(I), we reverse the judgment terminating Mother’s
parental rights.

{28}   IT IS SO ORDERED.

                                               ____________________________________
                                               JAMES J. WECHSLER, Judge

WE CONCUR:

___________________________________
LINDA M. VANZI, Judge

___________________________________
J. MILES HANISEE, Judge

Topic Index for State ex rel. CYFD v. Marsalee P., No. 31,784

APPEAL AND ERROR
Standard of Review

CHILDREN
Termination of Parental Rights

CONSTITUTIONAL LAW
Due Process


                                              9
INDIAN LAW
Indian Child Welfare Act

STATUTES
Interpretation
Legislative Intent




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