Certiorari Granted, No. 31,738, June 17, 2009

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-058

Filing Date:    May 12, 2009

Docket No. 28,352

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

Petitioner-Appellee,

v.

MARLENE C.,

       Respondent-Appellant,

and

IN THE MATTER OF ESTHER V.,

       a Child.

APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY
Louis E. DePauli, Jr., District Judge

New Mexico Children, Youth and Families Department
Oneida L’Esperance, Acting Chief Children’s Court Attorney
Rebecca J. Liggett, Children’s Court Attorney
Santa Fe, NM

for Appellee

Jane B. Yohalem
Santa Fe, NM

for Appellant

                                     OPINION

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CASTILLO, Judge.

{1}     Mother appeals from an adjudication of neglect. Mother is a member of the Navajo
Nation, and the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963 (2006),
applies to Child. Although the parties to this case agree that ICWA does apply, they
disagree about its specific application to issues of preservation and evidentiary requirements.
We hold that under the circumstances of this case, ICWA permits Mother to challenge on
appeal the sufficiency of the evidence presented at the adjudicatory hearing, and we further
hold that the Children, Youth, and Families Department (Department) did not provide
sufficient evidence to satisfy the requirements of ICWA. Accordingly, we reverse the
adjudication of neglect and remand for further proceedings.

I.     BACKGROUND

{2}     When Child was one month old, she and Mother were living as guests with a family
as part of a safety contract with the Department. Father was incarcerated. On August 21,
2007, the Department received a referral regarding Mother and Child because the family had
asked Mother and Child to leave, thereby rendering them homeless. On the same day, the
Department filed an abuse and neglect petition against both parents and filed a motion for
an ex parte custody order. The petition acknowledged that Child was Native American and
that ICWA applied to the proceedings. The district court granted the motion for an ex parte
custody order, and the Department was given legal and physical custody of Child. Mother,
through her appointed counsel, filed a response to the petition, and she denied all allegations
of abuse and neglect. Notice of the proceedings was sent to the Navajo Nation, as required
under ICWA, Section 1912(a).

{3}    A temporary custody hearing was held on September 12, 2007. At that hearing,
Mother stipulated to the Department’s continued custody of Child. An adjudicatory hearing
was held over two days in October and November 2007. The district court entered an order
adjudicating Child to be neglected by both Mother and Father and continued Child’s custody
with the Department. Mother appeals the order.

II.    DISCUSSION

{4}      Mother argues that the district court failed to make certain required findings under
Section 1912 of ICWA and that, based on the record developed in this case, we should
dismiss the abuse and neglect petition. The Department contends that Mother failed to
preserve her ICWA challenges for review in this Court and, in the alternative, that the
district court made the requisite findings at the earliest possible opportunity thus meeting the
requirements of ICWA. In order to address these arguments, we must review and interpret
the provisions of ICWA, and we conduct statutory construction de novo. See Cherino v.
Cherino, 2008-NMCA-024, ¶ 7, 143 N.M. 452, 176 P.3d 1184 (filed 2007). We first address
the preservation issue and then turn to the applicability of ICWA to the present controversy.

A.      Preservation


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{5}     Mother asserts three bases for preservation: (1) that Mother’s arguments below
sufficiently questioned the district court’s findings even though she did not specifically refer
to ICWA, (2) that ICWA permits a parent or a tribe to challenge violations of certain
provisions of ICWA at any time, and (3) that the district court’s failure to abide by ICWA
amounted to fundamental error. Because we conclude that ICWA permits Mother to raise
this particular challenge on appeal in the circumstances of this case, we need not address the
remaining arguments.

{6}    Section 1914 provides that

               [a]ny Indian child who is the subject of any action for foster care
       placement or termination of parental rights under [s]tate law, any parent or
       Indian custodian from whose custody such child was removed, and the Indian
       child’s tribe may petition any court of competent jurisdiction to invalidate
       such action upon a showing that such action violated any provision of
       [S]ections 1911, 1912, and 1913 of this title.

Mother contends that because her substantive argument on appeal concerns an alleged
violation of Section 1912, Section 1914 permits her to raise the issue at this time. The
Department responds that Section 1914 is designed to address cases in which the district
court completely ignores or fails to address ICWA in any way. In the present case, the
district court acknowledged that ICWA applied to the proceedings, and the Department
argues that Mother was therefore required to make her specific substantive challenge related
to Section 1912 to the district court at the adjudicatory hearing. The Department asserts that
absent a specific challenge, the district court “had no reason to believe that ICWA was not
properly followed.”

{7}      We agree with the Department that under the New Mexico Rules of Appellate
Procedure, to “preserve a question for review it must appear that a ruling or decision by the
district court was fairly invoked.” Rule 12-216(A) NMRA. The parties agree that Mother
did not raise at the adjudicatory hearing the issue of the Department’s failure to provide
evidence as required by ICWA. Mother acknowledges the preservation requirement in Rule
12-216(A), but argues that the language of Section 1914 allows this Court to consider the
issue nevertheless. Mother cites In re S.M.H., 103 P.3d 976 (Kan. Ct. App. 2005) for the
proposition that a failure of preservation does not automatically prevent an appellate court
from evaluating alleged violations of ICWA. In that case, the parent challenged the removal
of the children based on state laws but failed to argue to the district court that the stricter
provisions of ICWA applied. Id. at 981. The Kansas court of appeals nevertheless permitted
the parent to raise substantive challenges to the proceedings based on a failure to abide by
ICWA because the state and the district court “could have had no doubt that . . . ICWA was
applicable.” Id. at 982.

{8}    The Department attempts to distinguish In re S.M.H. by arguing that in that case,
ICWA clearly applied to the proceedings, but the district court failed to follow ICWA
requirements. At this stage in our analysis, such a distinction is unpersuasive. We have yet


                                               3
to determine whether the district court followed ICWA requirements. Instead, we are
attempting to determine whether that issue is properly before us. In order to make that
determination, we turn to the language of the statute. Santillo v. N.M. Dep’t of Pub. Safety,
2007-NMCA-159, ¶ 17, 143 N.M. 84, 173 P.3d 6 (“The plain language of the statute is our
primary guide to legislative intent[.]”).

{9}     Section 1914 explicitly permits a parent to challenge—in any court of competent
jurisdiction—three types of violations: (1) Section 1911, which concerns tribal court
jurisdiction; (2) Section 1912, which concerns the proof required to substantiate a
termination of parental rights or a foster care placement; or (3) Section 1913, which concerns
the validity of a parent’s consent to termination or foster care placement. A district court is
not able to evaluate whether the requirements of these statutes are being met without first
being aware that ICWA is the governing law. Thus, Section 1914 assumes that the
applicability of ICWA has already been raised and determined. After that, ICWA places a
duty on the district court to apply Sections 1911, 1912, and 1913 regardless of the positions
taken by the parties. Accordingly, we conclude that Mother’s failure to expressly raise
violations of ICWA at the adjudicatory hearing does not prevent us from reviewing the
record to determine if the district court fulfilled its obligation to abide by the requirements
of ICWA.

B.     ICWA Requirements

{10} Mother’s argument is focused on Section 1912(d) and (e) of ICWA. Section 1912(d)
requires that

               [a]ny party seeking to effect a foster care placement of, or termination
       of parental rights to, an Indian child under [s]tate law 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.

Section 1912(e) outlines the proof necessary for these types of proceedings: “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.” For ease of discussion, we shall refer to the Section
1912(d) provision as the “active efforts requirement” and the Section 1912(e) provision as
the “serious damage requirement.”

{11} Our first question relates to the type of proceeding. We thus turn to consider what
constitutes a “foster care placement.” Section 1903(1)(i) of ICWA defines a “foster care
placement” as “any action removing an Indian child from its parent or Indian custodian for
temporary placement in a foster home or institution or the home of a guardian or conservator
where the parent or Indian custodian cannot have the child returned upon demand, but where
parental rights have not been terminated.” Under the New Mexico Abuse and Neglect Act,
NMSA 1978, §§ 32A-4-1 to -34 (1993, as amended through 2005), there are several stages
and different kinds of proceedings between the initial ex parte custody order and a


                                              4
termination proceeding. We briefly review those stages in order to determine at what stage
in the current abuse and neglect proceeding the district court was required to make ICWA
findings.

{12} The Department may take initial custody of a child based on an ex parte custody
order entered any time after a petition for abuse and neglect is filed. See § 32A-4-16. In that
event, a temporary custody hearing is held within ten days of the filing of petition to
determine whether the child should remain in the Department’s custody pending
adjudication. See § 32A-4-18(A). The next proceeding is adjudication, at which the district
court considers the merits of the abuse and neglect petition. See § 32A-4-19; § 32A-4-20(G).
Either at the conclusion of the adjudicatory hearing or within thirty days, the district court
must make a custody determination—either the court awards custody to the Department, an
agency, or an individual or temporary custody ends and the child is returned to a parent. See
§ 32A-4-22(A), (B). If the district court vests custody in the Department, an agency, or an
individual who is not the child’s parent, this dispositional custody placement remains in
force for no more than two years, with the possibility of one-year extensions as the court sees
fit. See § 32A-4-24(A)-(E).

{13} The Department contends that the district court made both the active efforts and the
serious damage determinations at the earliest opportunity—at the ex parte custody order and
the temporary custody hearing—and therefore satisfied its obligation under ICWA. In the
order granting the Department’s motion for ex parte custody, the court stated that
“reasonable and active efforts have been made to avoid removal of [C]hild from the home.”
Because Mother did not contest this finding, the Department argues that the language in the
ex parte custody order satisfies the active efforts requirement of ICWA. In addition, the
Department points out that Mother stipulated to the following finding in the temporary
custody order: “Clear and convincing evidence exists to believe that continued custody of
[C]hild by the parent or guardian is likely to result in serious emotional or physical damage
to [C]hild.” This finding, the Department argues, satisfies ICWA serious damage
requirement. According to the Department, because the temporary custody proceedings
resulted in a “foster care placement,” the requirements under Section 1912(d) and (e) were
met.

{14} Mother argues that the district court was required to make ICWA findings at the
adjudicatory stage of the abuse and neglect proceedings. Specifically, Mother contends that
because the custody determination made after adjudication is a “foster care placement” as
contemplated by Section 1912(d) and (e), the district court must make findings regarding
both ICWA requirements at the adjudicatory hearing. The arguments are thus about timing:
whether the district court must make ICWA findings at the earliest opportunity or whether
the district court is obligated to make ICWA findings each time a decision is made regarding
a child’s placement with anyone other than the Indian parent. Based on the circumstances
of the present case, however, we are not obliged to determine whether Section 1912 findings
must be made at the adjudication stage of every abuse and neglect proceeding.

{15} At the temporary custody hearing, Mother stipulated to the Department’s custody of
Child. ICWA includes a provision governing a parent’s consent to a foster care placement:


                                              5
                Where any parent or Indian custodian voluntarily consents to a foster
        care placement or to termination of parental rights, such consent shall not be
        valid unless executed in writing and recorded before a judge of a court of
        competent jurisdiction and accompanied by the presiding judge’s certificate
        that the terms and consequences of the consent were fully explained in detail
        and were fully understood by the parent or Indian custodian. The court shall
        also certify that either the parent or Indian custodian fully understood the
        explanation in English or that it was interpreted into a language that the
        parent or Indian custodian understood. Any consent given prior to, or within
        ten days after, birth of the Indian child shall not be valid.

Section 1913(a). Assuming that Mother’s consent at the temporary custody hearing was a
valid consent under Section 1913(a), the Department was not required at that time to
establish the requirements under Section 1912.

{16} The record reveals that Mother’s consent was limited in time. Indeed, at the
temporary custody hearing, Mother’s counsel explained to the court Mother’s reasons for
consenting to temporary custody of Child with the Department: “She is actively looking for
a home and seeking ultimately to have [C]hild—of course, all three children—returned to
her. So, at this point, she has no place to go. . . . The practicalities of the situation are that
somebody’s got to take care of [C]hild.” Mother’s answer to the abuse and neglect petition
denied all of the allegations of the petition, including the allegation that it was “contrary to
the welfare of [C]hild that she remain in the custody of [her parents].” Additionally, Mother
was assured at the temporary custody hearing that she would have an opportunity to dispute
the Department’s continued custody of Child. Based on Mother’s continued resistance to
the Department’s permanent custody of Child, the Department could not rely on Mother’s
consent to temporary custody to vitiate ICWA requirements under Section 1912(d) and (e).
See Cherokee Nation v. Nomura, 2007 OK 40, ¶ 24, 160 P.3d 967, 976 (“[C]ompliance with
[ICWA] is required in voluntary and involuntary child custody proceedings.” (internal
quotation marks omitted)).

{17} The record further demonstrates that the Department did not establish the Section
1912 requirements during the initial proceedings. As we have explained, there are two parts
to the Section 1912 requirements: active efforts and serious damage. See § 1912(d), (e).
The record reflects that the district court made findings based on the ex parte order regarding
active efforts, but it failed to abide by the mandate under Section 1912(e), directing that the
serious danger requirement be established by qualified expert testimony. Because Mother
stipulated to temporary custody, the Department did not put on evidence at the temporary
custody hearing. The Department secured expert testimony regarding Mother’s mental
health for the adjudicatory hearing, but acknowledges on appeal that the doctor was not
offered “as a ‘qualified expert’ pursuant to ICWA.” Nothing in Section 1912(e) suggests
that the Department is relieved of its burden of proof if a parent initially consents to a foster
care placement and then later contests the placement at the adjudicatory stage.

{18} Under these circumstances, where the Department was never required to prove its
case under Section 1912(e) because Mother initially consented to a foster care placement,


                                                6
we hold that the Department must establish the serious danger requirement pursuant to
ICWA before the Department may continue to keep [C]hild in a contested foster care
placement. Because we conclude that the Department failed to prove by “clear and
convincing evidence, including testimony of qualified expert witnesses, that the continued
custody of [C]hild by the parent or Indian custodian is likely to result in serious emotional
or physical damage to [C]hild,” we reverse the adjudication of neglect as to Mother because
it was not based on sufficient evidence.

C.      Remand

{19} As we have explained in the past, after an adjudication of abuse and neglect is
reversed on appeal, “the district court, on remand, retains jurisdiction to determine whether
the parent prevailing on appeal should regain custody of the child.” State ex rel. Children,
Youth & Families Dep’t v. Benjamin O., 2007-NMCA-070, ¶ 35, 141 N.M. 692, 160 P.3d
601. While there is a presumption that a fit parent should receive custody, “a court may
deny custody if extraordinary circumstances are found to exist.” Id. ¶ 36. In addition, the
Department is not precluded from continuing to seek termination of parental rights if it
brings “new or current allegations of abuse, neglect, or abandonment to the district court’s
attention.” Id. ¶ 39. Regardless of what the Department chooses to do, the requirements of
ICWA must be observed.

III.    CONCLUSION

{20} We reverse the district court and remand for proceedings in accordance with this
opinion.

{21}    IT IS SO ORDERED.

                                              ______________________________________
                                              CELIA FOY CASTILLO, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
ROBERT E. ROBLES, Judge

Topic Index for State of NM ex rel CYFD v. Marlene C., No. 28,352

AE                     APPEAL AND ERROR
AE-PA                  Preservation of Issues for Appeal

CL                     CRIMINAL LAW
CL-CN                  Child Abuse and Neglect

                                             7
EV      EVIDENCE
EV-SS   Substantial or Sufficient Evidence

IL      INDIAN LAW
IL-IW   Indian Child Welfare Act

ST      STATUTES
ST-IP   Interpretation




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