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.
No. 28,352.
Court of Appeals of New Mexico.
May 12, 2009.
212 P.3d 1142 | 2009-NMCA-058
Certiorari Granted, No. 31,738, June 17, 2009.
{65} The City also objects to the recovery of costs for Rainhart, Dahlstrom, and Ricker. The trial court found that Rainhart and Ricker testified at trial as experts and that the City did not object. It was not therefore not an abuse of discretion to allow ACP to recover costs for those experts. See
III. CONCLUSION
{66} We affirm the trial court and the jury verdict on the Section 1983 claim and the award of damages, costs, and fees, with the exception of the award of post-judgment interest. We remand the matter to the trial court for an entry of judgment consistent with this opinion.
{67} IT IS SO ORDERED.
WE CONCUR: MICHAEL D. BUSTAMANTE, Judge and LYNN PICKARD, Judge Pro Tempore.
Jane B. Yohalem, Santa Fe, NM, for Appellant.
OPINION
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),
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,
{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
A. Preservation
{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}
[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
{7} We agree with the Department that under the
{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 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}
B. ICWA Requirements
{10} Mother‘s argument is focused on
[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.
{11} Our first question relates to the type of proceeding. We thus turn to consider what constitutes a “foster care placement.”
{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
{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
{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
{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:
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.
{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
{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
{18} Under these circumstances, where the Department was never required to prove its case under
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.
WE CONCUR: JAMES J. WECHSLER, and ROBERT E. ROBLES, Judges.