370 P.3d 782
N.M. Ct. App.2016Background
- Three minor children removed from mother’s custody after parents’ incarceration and reports of neglect; CYFD obtained temporary legal custody in April 2012.
- Father (a member of the Navajo Nation) pled no contest to neglect based on incarceration, was placed on a treatment plan, and had intermittent contact and visits while repeatedly incarcerated between 2012–2014.
- CYFD notified Navajo ICWA unit and investigated maternal lineage; attempts to obtain maternal birth records and contact maternal relatives were largely unsuccessful.
- The Navajo Nation and Southern Ute tribe responses (after CYFD’s inquiries) indicated the children were not eligible for enrollment; CYFD concluded ICWA did not apply and the district court agreed.
- At trial the district court found Father had not secured appropriate housing, completed recommended substance‑abuse/parenting treatment, or maintained required visits/calls; it terminated Father’s parental rights under NMSA 1978 § 32A‑4‑28(B)(2). The court of appeals affirmed.
Issues
| Issue | Father’s Argument | CYFD’s Argument | Held |
|---|---|---|---|
| Does ICWA apply? | ICWA possibly applies because Father is an enrolled Navajo member and the children might be eligible; ICWA standards should govern. | Children are not enrolled and are not shown to be eligible for Navajo or Ute enrollment after investigation. | ICWA does not apply—the children are not eligible for enrollment in Navajo Nation or Ute tribe. |
| Did CYFD adequately investigate ICWA eligibility under NMSA § 32A‑4‑22(I)? | CYFD’s efforts were insufficient; it should have used more measures (subpoenas, depositions, exhaustive record searches). | CYFD repeatedly sought maternal lineage info, contacted tribes and vital records, and pursued reasonable avenues given mother’s non‑cooperation. | CYFD complied with the statutory duty; its investigation was adequate on the record. |
| Was there clear and convincing evidence to terminate under § 32A‑4‑28(B)(2)? | Father argues evidence was stale or insufficient—his incarcerations impeded but should not be dispositive; he had some treatment and contact. | Father repeatedly failed to complete treatment, secure safe housing, and maintain consistent contact; conditions were unlikely to change in foreseeable future. | Substantial evidence supports the district court: clear and convincing evidence that conditions causing neglect were unlikely to change. |
Key Cases Cited
- In re Esther V., 149 P.3d 863 (N.M. 2011) (ICWA ambiguities must be resolved in favor of the Indian parent/tribe)
- In re Guardianship of Ashley Elizabeth R., 863 P.2d 451 (N.M. Ct. App. 1993) (ICWA applies regardless of tribal registration)
- Montana v. United States, 450 U.S. 544 (1981) (Indian tribes retain inherent power to determine tribal membership)
- In re Desiree F., 99 Cal. Rptr. 2d 688 (Ct. App. 2000) (tribal enrollment decision can be determinative where agency failed to give proper notice)