In Re Esther
248 P.3d 863
N.M.2011Background
- ICWA applies to a New Mexico abuse/neglect case involving a Navajo mother and an Indian child eligible for Navajo enrollment.
- CYFD sought ex parte custody based on an abuse/neglect petition, claiming active efforts to avoid removal and probable cause of abuse/neglect.
- Mother consented to temporary CYFD custody at a custody hearing; adjudicatory hearing was later held.
- The district court found neglect based on incarceration/physical/mental incapacity, relying on the earlier stipulation and ex parte order.
- Court of Appeals reversed, holding §1912(e) required expert testimony at adjudication and that the consent did not convert the matter to a §1913 voluntary proceeding; this Court granted review.
- The Supreme Court ultimately held that §1912(d) and (e) findings must be made at the adjudicatory hearing and remanded for a proper ICWA-compliant adjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When must §1912(d) and (e) findings be made in a contested ICWA case? | CYFD urged earliest stage findings (ex parte/custody). | Findings should be addressed at adjudication. | Findings must be made at the adjudicatory hearing. |
| Does a parent's stipulation to temporary custody convert the case to a voluntary proceeding under §1913? | Stipulation could be treated under §1913(a). | §1913 applies only to voluntary proceedings initiated by the parent. | §1913 applies only to voluntary proceedings initiated by the parent; stipulation did not convert the case. |
| What remedy is proper where §1912(d)/(e) findings were not made at adjudication? | Reversal and remand for ICWA-compliant adjudication; allow new evidence. | Dismiss or proceed without proper ICWA findings. | Reverse adjudication and remand for a new adjudicatory hearing to address §1912(d)/(e). |
| Can a parent admit to §1912(d)/(e) findings, and under what safeguards? | Admissions may be allowed with procedural safeguards. | Admissions require strict safeguards; involuntary admission is risky. | Admissitions require safeguards; a mere stipulation at custody is insufficient; court must ensure factual basis and voluntary understanding. |
Key Cases Cited
- Kathleen D.C., In re Damion M.C., 141 N.M. 535, 157 P.3d 714 (N.M. 2007) (due process in neglect/abuse proceedings; ICWA interplay; admissions require safeguards)
- In re S.B., 130 Cal. App. 4th 1148 (Cal. App. 2005) (emergency removal and ICWA considerations outside reservation context)
- In re Jade Charles, 70 Or.App. 10, 688 P.2d 1354 (Or. App. 1984) (emergency removal and ICWA provisions in non-reservation context)
- Doe v. Mann, 415 F.3d 1038 (9th Cir. 2005) (§1913 applies to voluntary proceedings initiated by parent; distinction from involuntary actions)
- Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597 (Sup. Ct. 1989) (ICWA purpose and tribal interests in child custody)