State ex rel. Children, Youth & Families Department v. Marsalee P., 2013 NMCA 062

Department filed a neglect/abuse petition in Aug 2010 seeking custody of three children, Da’Vondre P., Whitley P., and Jordan P., due to unsanitary living conditions and parental drug use.
District court granted custody in Aug 2010 and the Department stipulated ICWA applied because the children were Navajo Nation-eligible.
Adjudicatory hearing in Oct 2010 adjudicated the children as abused with Department custody; court later stated the children were not subject to ICWA.
Predispositional and other reports acknowledged Navajo eligibility for enrollment; the court later maintained that the children were not ICWA-subject.
At termination trial, Mother sought a continuance to allow ICWA enrollment processes; the Department maintained ICWA did not apply because enrollment had not occurred.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ICWA applies when children are Navajo-eligible but not enrolled	Mother argues children are ICWA Indian children due to eligibility	Department argues ICWA does not apply without enrollment	ICWA does not apply as to status, but enrollment obligations remain under NM Act
Whether the Department fulfilled its enrollment duties under Section 32A-4-22(I)	Mother claims the Department failed to pursue enrollment on the children’s behalf	Department contends it investigated but did not need enrollment to proceed	District court erred by terminating before the Department fully complied with 32A-4-22(I)
Whether termination of parental rights was proper without ICWA-compliance considerations	Mother asserts proper ICWA protections were not applied	Department argues ICWA not triggered due to eligibility status	Termination reversed; district court must ensure 32A-4-22(I) compliance before termination

State ex rel. Children, Youth & Families Dep’t v. Marlene C., 149 N.M. 315, 248 P.3d 863 (2011) (2011-NMSC-005) (recognizes district court's duty to ensure Act compliance in termination)
State ex rel. Children, Youth & Families Dep’t v. Hector C., 144 N.M. 222, 185 P.3d 1072 (2008) (2008-NMCA-079) (termination implicates parental rights; district court has affirmative duty)
State ex rel. Children, Youth & Families Dep’t v. Maria C., 136 P.3d 796 (N.M. Ct. App. 2004) (2004-NMCA-083) (protects due process rights of parent throughout termination)
In re Guardianship of Ashley Elizabeth R., 116 N.M. 416, 863 P.2d 451 (Ct. App. 1993) (1993) (enrollment status can determine eligibility concepts under ICWA)
Nielsen v. Ketchum, 640 F.3d 1117, 1124 (10th Cir. 2011) (2011) (enrollment status used to define Indian child under ICWA)