State Ex Rel. Children, Youth & Families Department v. Marlene C.

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 12:47:37 2011.04.27

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMSC-005

Filing Date: January 21, 2011

Docket No. 31,738

In the Matter of Esther V., a child,

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

Petitioner-Petitioner and Cross-Respondent,

v.

MARLENE C.,

Respondent-Respondent and Cross-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Louis E. DePauli, Jr., District Judge

New Mexico Children, Youth & Families Department
Rebecca J. Liggett
Santa Fe, NM

for Petitioner and Cross-Respondent

Law Offices of Jane B. Yohalem
Jane B. Yohalem
Santa Fe, NM

for Respondent and Cross-Petitioner

OPINION

DANIELS, Chief Justice.

{1} This case addresses the relationship between the Indian Child Welfare Act of 1978
(ICWA), 25 U.S.C. §§ 1901-1963 (2006), which sets “minimum Federal standards for the
removal of Indian children from their families,” § 1902, and the New Mexico Abuse and
Neglect Act, NMSA 1978, Sections 32A-4-1 to -34 (1993, as amended through 2009), which

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governs the State’s transfer of custody of a child in cases of abuse or neglect. More
specifically, we are asked to determine when and how a district court in an abuse and neglect
proceeding must make the two factual findings required by § 1912(d) and (e) of ICWA.
Subsection 1912(d) provides,

Any party seeking to effect a foster care placement of, or termination of
parental rights to, an Indian child under State 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.

Subsection 1912(e) provides,

No foster care placement may be ordered in such proceeding in the absence
of a determination, supported by 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.

{2} In this case, the district court entered an order finding that Marlene C. (Mother)
neglected her month-old baby (Child) and gave legal custody to the Children, Youth and
Families Department (CYFD). Mother appealed, arguing that the district court failed to
make the factual findings required by § 1912(d) and (e) of ICWA at the adjudicatory
hearing. State ex rel. Children, Youth & Families Dep’t v. Marlene C., 2009-NMCA-058,
¶¶ 1, 10, 14, 146 N.M. 588, 212 P.3d 1142. The Court of Appeals reversed the adjudication
of neglect, holding that CYFD failed to prove the § 1912(e) requirement by clear and
convincing evidence as required by the statute. Id. ¶¶ 18, 20. The Court of Appeals did not
decide whether the findings required by § 1912(d) and (e) must always be made at the
adjudicatory hearing. See id. ¶ 14. We hold that, in a contested adjudication to which ICWA
applies, the district court must always make the findings of fact required under § 1912(d) and
(e) of ICWA at the adjudication stage, founded either on evidence of record or admissions
supported by a factual basis. We therefore reverse the district court’s adjudication of neglect
and remand to that court for further hearing.

I. BACKGROUND

{3} Mother, a member of the Navajo Nation, and Child, who is eligible for enrollment
in the Navajo Nation, were living with a Gallup-based family pursuant to a safety contract
with CYFD in which the family agreed to provide a residence for Mother and Child and
“ensur[e] the child’s safety.” Child’s father (Father) was incarcerated at the time. On
August 21, 2007, CYFD received a referral indicating that the safety-contract family no
longer wanted to help Mother and Child because Mother “was causing family discord,
making [false] allegations, leaving with the baby on foot and in the extreme heat, and
bringing items into the home that [were] against [the family’s] religious beliefs.”

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{4} In response to the referral, CYFD immediately faxed to the district court a petition
alleging abuse and neglect, a motion for an ex parte custody order with a supporting
affidavit, and a proposed ex parte custody order to be signed by the district judge. CYFD’s
petition alleged that Mother and Father neglected Child, contrary to Section 32A-4-2(E)(4),
“in that [they] are unable to discharge their responsibilities to and for [C]hild because of
incarceration, hospitalization or other physical or mental disorder or incapacity,” and that
Mother and Father abused Child, contrary to Section 32A-4-2(B)(1), “in that [C]hild has
suffered or is at risk of suffering serious harm because of the action or inaction of the child’s
parent, guardian or custodian.” The petition also noted that ICWA applies to Child because
Child is Native American. The supporting affidavit contained facts to establish probable
cause that Child was abused or neglected, and it stated that “reasonable and active efforts
ha[d] been made to avoid removal of the child from the home.”

{5} The district court signed the submitted ex parte custody order within ten minutes of
receiving CYFD’s request, thereby commanding the immediate removal of Child from
Mother’s care, granting “legal and physical custody of the child” to CYFD, and appointing
a guardian ad litem for Child. The district court’s order found that there was “probable cause
to believe that . . . [C]hild [was] abused or neglected,” that CYFD custody was “necessary,”
and that CYFD had made “active efforts . . . to avoid removal of [C]hild from the home.”

{6} On August 24, 2007, the district court appointed counsel to represent Mother, and,
on August 27, the court set a custody hearing within ten days of the ex parte order as
required by Section 32A-4-18(A). In response to CYFD’s abuse and neglect petition,
Mother’s counsel filed a response denying “all allegations of neglect or abuse” and disputing
that CYFD made “reasonable efforts . . . to avoid removing the child.” The temporary
custody hearing was postponed several days to accommodate the various parties and the
excusal of the district court judge and was ultimately held on September 12, 2007.

{7} At the thirty-minute custody hearing, counsel for Mother asked the court to allow
him five minutes to consult with Mother before the hearing began, explaining that he had not
had an opportunity to talk to his client. After conferring with counsel, Mother neither
renewed her denial of the alleged abuse and neglect nor challenged the portion of CYFD’s
affidavit that stated CYFD had made active and reasonable efforts to keep the family
together. Instead, she stipulated to temporary CYFD custody of Child pending the
adjudicatory hearing, which was scheduled for October 5, 2007. The court verified Mother’s
understanding of the stipulation in open court as follows:

Judge: . . . We are here today for a hearing to determine whether or not
reasonable grounds exist to allow the State of New Mexico to keep your
child and take legal custody of your child. . . . If you want a hearing, you
can have a hearing to dispute that there is not reasonable grounds for the
government to keep your child from you. . . . Do you understand?

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 Mother: Yes.

Judge: Are you willing to give up that right?

Attorney: In other words, are you willing to not have a hearing today,
but to say okay, they can keep the child on a temporary basis?

Mother: No, I want to get them back.

Attorney: I understand you want to get them back. The question is do
you want a hearing today on whether you should have them temporarily back
now. Because you’re going to have a hearing later on what’s called an
adjudication. Do you understand that?

Mother: Yes.

Attorney: Temporarily they’re going to be with the State, understand?
You’re going to have visitation. I think she understands, your honor.

Judge: Alright. So with your permission, we will not have a hearing to
determine whether or not at this time you should get your kids back. We’re
not going to have that hearing. Do you understand that?

Mother: Yes. . . .

Judge: And . . . down the line we can have a further hearing called an
adjudication to see if your child will remain with the State for a longer period
of time. We’re not going to have that right now. Do you understand that?

Mother: Um-hum.

{8} The court then signed the stipulated order, which stated that “[t]here is probable
cause to believe that the [parents] are not able to provide adequate supervision and care for
the child” and that “[c]lear and convincing evidence exists to believe that continued custody
of the child by the parent or guardian is likely to result in serious emotional or physical
damage to the child.” Mother did not contest the findings contained in the stipulated order.

{9} The district court held an adjudicatory hearing on October 29 and November 28.
Father did not contest the proceedings, but Mother disputed the allegations of abuse and
neglect. Relying on Mother’s earlier stipulation and the ex parte custody order, CYFD did
not present “qualified expert testimony” as required by § 1912(e) of ICWA or otherwise
address the § 1912 requirements at the adjudicatory hearing. At the close of the hearing, the
judge dismissed the abuse allegation but found neglect on the part of Mother. The judge’s
written order stated that “[t]he Court finds by clear and convincing [evidence that Mother]

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has neglected the child . . . in that [she] is unable to discharge [her] responsibilities to and
for the child because of incarceration, hospitalization or other physical or mental disorder
or incapacity; and a factual basis exists to support this finding.”

{10} Mother appealed to the Court of Appeals, arguing that the requirements of § 1912(d)
and (e) of ICWA were not satisfied. Marlene C., 2009-NMCA-058, ¶¶ 4, 14. Mother argued
that the “active efforts” finding required by § 1912(d) and the “likely to result in serious .
. . damage” finding required by § 1912(e) must be made at the adjudicatory stage of the
abuse and neglect proceedings. Marlene C., 2009-NMCA-058, ¶¶ 13-14. CYFD countered
“that Mother failed to preserve her ICWA challenges for review . . . and, in the alternative,
that the district court made the requisite findings” before the adjudicatory hearing, thereby
satisfying § 1912(d) and (e). Id. ¶ 4.

{11} Although Mother raised CYFD’s failure to satisfy § 1912(d) and (e) for the first time
on appeal, the Court of Appeals allowed her challenge pursuant to § 1914 of ICWA, which
provides in relevant part that “any parent or Indian custodian from whose custody [an
Indian] child was removed . . . 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.” Marlene C., 2009-NMCA-058, ¶¶ 5-6 (alteration in original)
(internal quotation marks omitted). CYFD does not renew its preservation argument before
this Court.

{12} On the merits of Mother’s appeal, the Court of Appeals agreed with CYFD that §
1912(d)’s requirement that “active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family” was satisfied
by the ex parte custody order, in which the district court stated that CYFD had made “active
efforts . . . to avoid removal of [C]hild from the home.” See id. ¶ 17. The Court of Appeals
disagreed, however, with CYFD’s contention that Mother stipulated to the finding required
by § 1912(e) by signing the temporary custody order, which stated that “[c]lear 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.” Marlene C.,
2009-NMCA-058, ¶ 13 (alterations in original) (internal quotation marks omitted). The
Court reasoned that CYFD did not and could not “prove its case under Section 1912(e)” at
the temporary custody hearing because Mother’s consent at that hearing transformed it into
a “voluntary proceeding” pursuant to § 1913(a), rendering § 1912’s requirements for
involuntary proceedings inapplicable at that stage. See Marlene C., 2009-NMCA-058, ¶¶
15, 18; 25 U.S.C. § 1913(a) (providing requirements for valid parental consent to foster care
placement or termination of parental rights). Because Mother voluntarily consented to
temporary custody pending adjudication, the Court of Appeals held that CYFD was
obligated to establish at the adjudicatory hearing the likelihood of serious damage through
the presentation of qualified expert testimony as required by § 1912(e). See Marlene C.,
2009-NMCA-058, ¶ 17.

{13} CYFD petitioned this Court for review of the Court of Appeals opinion, and Mother

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cross-petitioned. We granted both petitions for certiorari to review three issues: (1) did the
Court of Appeals err by holding that Mother’s consent to temporary custody pending the
adjudicatory hearing transformed the involuntary custody hearing into a voluntary
proceeding governed by § 1913 of ICWA; (2) in a contested adjudication, does the trial court
always need to make the factual findings required by § 1912(d) and (e) of ICWA at the
adjudicatory hearing on abuse and neglect, or can those findings be made at an earlier stage
of the proceedings; and (3) if the § 1912(d) and (e) findings must be made at the adjudication
stage, should we reverse the adjudication and dismiss the petition for lack of proof, or should
we remand for additional proceedings in which that proof may be presented?

II. DISCUSSION

A. Standard of Review

{14} The interpretation of ICWA and its relationship to our state statute on abuse and
neglect present questions of law that we review de novo. See Cherino v. Cherino, 2008-
NMCA-024, ¶ 7, 143 N.M. 452, 176 P.3d 1184 (“[T]he applicability of the ICWA requires
us to interpret statutory language, which is . . . subject to de novo review.”); State ex rel.
Children, Youth & Families Dep’t v. Benjamin O., 2007-NMCA-070, ¶ 24, 141 N.M. 692,
160 P.3d 601 (interpreting the Abuse and Neglect Act de novo).

{15} Our overarching goal when interpreting ICWA is to effectuate Congress’s intent.
The text of ICWA is the primary indicator of congressional intent, and to the extent that the
language of the statute is “clear and unambiguous, we must give effect to that language and
refrain from further statutory interpretation.” Quynh Truong v. Allstate Ins. Co., 2010-
NMSC-009, ¶ 37, 147 N.M. 583, 227 P.3d 73 (internal quotation marks and citation
omitted). Where a statute is ambiguous, we seek a construction that will harmonize all
relevant statutory provisions and avoid absurd results. See State v. Nick R.,
2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (explaining that statutory construction
must be done in a manner that avoids absurd results); State v. Smith, 2004-NMSC-032, ¶ 10,
136 N.M. 372, 98 P.3d 1022 (noting that statutory subsections “must be considered in
reference to the statute as a whole” (internal quotation marks and citation omitted)).

B. The Purpose and Policy of ICWA

{16} Congress enacted ICWA upon finding that “an alarmingly high percentage of Indian
families” were broken up by the often unwarranted removal and placement of Indian
children in “non-Indian foster and adoptive homes and institutions.” 25 U.S.C. § 1901(4).
Congress noted that “there is no resource . . . more vital to the continued existence and
integrity of Indian tribes than their children” and that the states, through their administrative
and judicial bodies, “have often failed to recognize the essential tribal relations of Indian
people and the cultural and social standards prevailing in Indian . . . families.” § 1901(3),
(5). In light of those historic facts, Congress enacted ICWA to “protect the best interests of
Indian children and to promote the stability and security of Indian tribes and families by the

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establishment of minimum Federal standards for the removal of Indian children from their
families.” § 1902.

{17} ICWA is a remedial statute in that it was enacted to stem the “alarmingly high
percentage of Indian families” being separated by removal of children through custody
proceedings. § 1901(4). We interpret remedial statutes “liberally to facilitate and
accomplish [their] purposes and intent.” State ex rel. Stratton v. Gurley Motor Co., 105
N.M. 803, 808, 737 P.2d 1180, 1185 (Ct. App. 1987). Furthermore, “statutes enacted for the
benefit of Indians must be liberally construed with all doubts resolved in favor of the
Indians.” Preston v. Heckler, 734 F.2d 1359, 1369 (9th Cir. 1984); accord Bryan v. Itasca
Cnty., Minn., 426 U.S. 373, 392 (1976).

{18} When construing ICWA we are also informed by the Bureau of Indian Affairs
interpretive guidelines, which were published to assist state courts tasked with interpreting
ICWA within the context of their own child welfare procedures. See Guidelines for State
Courts; Indian Child Custody Proceedings (ICWA Guidelines), 44 Fed. Reg. 67,584, 67,584
(Nov. 26, 1979) (noting that state courts have primary responsibility for interpreting ICWA
and that Congress intended to give state courts flexibility); see also In re Guardianship of
Ashley Elizabeth R., 116 N.M. 416, 419, 863 P.2d 451, 454 (Ct. App. 1993) (noting that the
guidelines are persuasive authority). According to the ICWA Guidelines,

Congress through [ICWA] has expressed its clear preference for keeping
Indian children with their families . . . . Proceedings in state courts involving
the custody of Indian children shall follow strict procedures and meet
stringent requirements to justify any result in an individual case contrary to
these preferences. . . . [T]he Act shall be liberally construed in favor of a
result that is consistent with these preferences. Any ambiguities in any of
such statutes, regulations, rules or guidelines shall be resolved in favor of the
result that is most consistent with these preferences.

44 Fed. Reg. at 67,585 to -86 (emphasis added).

{19} In short, when construing ICWA we must resolve all ambiguities liberally in favor
of the Indian parent and the tribe in order to effectuate the purpose of the Act, which is to
prevent the unnecessary removal of Indian children.

C. A Parent or Custodian’s Consent to Temporary Custody Does Not Transform an
Involuntary Proceeding into a Voluntary Proceeding to Which § 1913 of ICWA
Applies.

{20} Initially, we address the Court of Appeals’ characterization of Mother’s stipulation
at the custody hearing as a “consent to a foster care placement” within the meaning of §
1913(a) of ICWA. See Marlene C., 2009-NMCA-058, ¶¶ 15-18. Section 1913 details the
requirements for valid parental consent in situations where a “parent or Indian custodian

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voluntarily consents to a foster care placement or to termination of parental rights.” CYFD
argues that this portion of the Court of Appeals opinion is inconsistent with the purpose of
§ 1913, which is to establish procedures for voluntary proceedings that are distinguishable
from those used for involuntary proceedings. For the reasons that follow, we agree with
CYFD and hold that § 1913 applies only to circumstances in which the parent or Indian
custodian has initiated a voluntary proceeding.

{21} The characterization by the Court of Appeals that Mother’s stipulation at the initial
custody hearing was a voluntary consent within the meaning of § 1913(a) is problematic
because, under § 1913(b), a parent can withdraw consent to a voluntary foster care
placement at any time and regain custody of the child. The Court of Appeals’ construction
relies on the plain language of § 1913(a), which details the requirements for a valid parental
consent in situations where “any parent or Indian custodian voluntarily consents to a foster
care placement or to termination of parental rights.” We decline to adopt the Court of
Appeals’ construction.

{22} By enacting § 1913, entitled “Parental rights; voluntary termination,” we believe that
Congress intended to establish a separate set of requirements for cases where a parent or
Indian custodian voluntarily initiates a proceeding in order to relinquish parental or custodial
rights to a child. Section 1913 does not contain the same procedural due process protections
found in § 1912, such as notice to the parents and tribe, expert testimony, the appointment
of counsel, and proof by clear and convincing evidence. Instead, § 1913 details the
requirements for a valid consent to voluntary foster care placement or termination of parental
rights, in Subsection (a), and provides mechanisms allowing a parent to have the child
returned, even in some instances after a final decree of termination or adoption has been
entered, in Subsections (b) through (d).

{23} Our conclusion that § 1913 applies only to voluntary proceedings initiated by the
parent harmonizes two otherwise contradictory provisions within ICWA that define the term
“foster care placement.” Section 1903(1)(i) defines a foster care placement as “any action
removing an Indian child from its parent or Indian custodian for temporary placement . . .
where the parent . . . cannot have the child returned upon demand.” Section 1913(b)
provides that a parent “may withdraw consent to a foster care placement under State law at
any time and, upon such withdrawal, the child shall be returned to the parent.” We conclude
that a foster care placement made in a voluntary proceeding is governed by § 1913 and is
unaffected by § 1903(1)(i)’s definition, which applies only to involuntary proceedings. See
§ 1903 (providing that the definitions apply “except as may be specifically provided
otherwise”).

{24} Additional authority supports our conclusion that § 1913 applies only to voluntary
proceedings. The ICWA Guidelines clearly distinguish § 1913, discussed under the heading
“Voluntary Proceedings,” from § 1912, discussed under “Involuntary Placements,
Adoptions, or Terminations . . . of Parental Rights.” See ICWA Guidelines, 44 Fed. Reg.
at 67,592 to -93. Other jurisdictions have treated involuntary placements differently than

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voluntary placements and have held that § 1913 applies only to voluntary proceedings
initiated by the parent. See, e.g., Doe v. Mann, 415 F.3d 1038, 1063 (9th Cir. 2005) (noting
that Ҥ 1913 establishes parental rights in voluntary child custody proceedings involving
Indian children”); In re J.M., 218 P.3d 1213, 1217 (Mont. 2009) (holding that § 1913(a) “has
no application to the involuntary termination proceedings initiated by the [state]”); In re
Adoption of K.L.R.F., 515 A.2d 33, 37 (Pa. Super. Ct. 1986) (“We construe § 1913(b) as
applying to situations . . . wherein a consensual foster care placement was made in the first
place and there is no inherent bar to a withdrawal of the consent.”); In re Welfare of MG, 201
P.3d 354, 357 (Wash. Ct. App. 2009) (“Different requirements apply for the voluntary
placement as opposed to involuntary removal of an Indian child. . . . [I]n a voluntary
proceeding, if an Indian parent desires to withdraw his/her consent to placement, the child
must be returned to his/her care.”). Because § 1913 does not apply to involuntary
proceedings like the one before us, we must look elsewhere for guidance.

D. In a Contested Adjudication of Abuse or Neglect of an Indian Child, the Court
Always Must Make the Factual Findings Required by § 1912(d) and (e) of ICWA at the
Adjudicatory Hearing.

1. Overview of New Mexico Abuse and Neglect Proceedings

{25} The primary issue before this Court is when, within the procedural framework
established by New Mexico’s Abuse and Neglect Act, the district court should address §
1912(d)’s “active efforts . . . to prevent the breakup of the Indian family” requirement and
§ 1912(e)’s “likely to result in serious . . . damage” requirement. To provide context for our
discussion, we begin our analysis with a brief overview of the relevant stages of an abuse
and neglect proceeding, including the ex parte custody stage, custody hearing, adjudicatory
hearing, and dispositional hearing.

{26} CYFD initiates a proceeding by filing a petition alleging abuse or neglect with the
district court. See § 32A-4-15; Rule 10-312 NMRA. To obtain immediate custody of the
child, CYFD must also file a motion for an ex parte custody order, including an affidavit
showing probable cause that custody is necessary and that the child has been abused or
neglected. See § 32A-4-16(A)-(B); Rule 10-311(A) NMRA. If the district court finds
probable cause, it may issue an order giving CYFD interim legal custody of the child until
an initial custody hearing is held. See §§ 32A-4-16(A), -18(A). The rules of evidence do
not apply to the issuance of an ex parte custody order. Section 32A-4-16(C); Rule 11-
1101(D)(2) NMRA. At the inception of the abuse and neglect proceedings, the district court
must appoint counsel for the parent and a guardian ad litem for the child. Section 32A-4-
10(B)-(C).

{27} The district court must hold a custody hearing within ten days of the date the petition
is filed “to determine if the child should remain in or be placed in [CYFD]’s custody pending
adjudication.” Section 32A-4-18(A). CYFD must give the parent “reasonable notice of the
time and place of the custody hearing.” Section 32A-4-18(B). The parent must be informed

9
of the allegations in the petition, potential consequences if those allegations are found true,
and the rights to counsel and an adjudicatory hearing. Section 32A-4-10(G); Rule 10-314
NMRA. The rules of evidence do not apply at the custody hearing. Section 32A-4-18(H);
Rule 11-1101(D)(2). If the court finds that there is probable cause to believe there has been
abuse or neglect, the court determines custody of the child pending the adjudicatory hearing
on the merits of the petition. See § 32A-4-18(A), (D).

{28} At the adjudicatory hearing the court determines whether the allegations in the
petition are true. The adjudicatory hearing is an evidentiary hearing on the merits of the
abuse or neglect case, complete with due process protections.

[A]t a minimum, due process in neglect and abuse proceedings requires
timely notice reasonably calculated to inform the person concerning the
subject and issues involved in the proceeding; a reasonable opportunity to
refute or defend against a charge or accusation; a reasonable opportunity to
confront and cross-examine adverse witnesses and present evidence on the
charge or accusation; representation by counsel, when such representation is
required by constitution or statute; and a hearing before an impartial
decisionmaker.

State ex rel. Children, Youth & Families Dep’t v. Kathleen D.C. (In re Damion M.C.),
2007-NMSC-018, ¶ 12, 141 N.M. 535, 157 P.3d 714 (internal quotation marks and citation
omitted). The adjudicatory hearing must be “commenced within sixty days after the date of
service” of the petition upon the respondent. Section 32A-4-19(A); see also Rule 10-343
NMRA (detailing triggering events for the sixty-day time limit). If the respondent denies
the allegations in the petition,1 the court must hear evidence on the petition and make
findings on whether the child is abused, neglected, or both. Section 32A-4-20(G). Unlike
the ex parte and custody hearing stages, the rules of evidence apply at the adjudicatory
hearing. Rule 10-141 NMRA; see also Rule 11-1101(A), (D). The court must determine,
in the absence of a valid admission, whether the child is abused or neglected “on the basis
of clear and convincing evidence, competent, material and relevant in nature.” Section 32A-
4-20(H).

{29} If the court concludes on the basis of clear and convincing evidence that the child is
abused or neglected, the next stage is the dispositional hearing, which can either be included
within the adjudicatory hearing or conducted separately within thirty days after the
adjudication of abuse or neglect. Sections 32A-4-20(H), -22(A). At disposition the court
makes factual findings relevant to a custody determination, determines custody of the child,
and establishes a treatment plan. Section 32A-4-22. The court must make multiple findings

1
Pursuant to Rule 10-342(A) NMRA, “The respondent may make an admission by:
(1) admitting sufficient facts to permit a finding that the allegations of the petition are true;
or (2) declaring the respondent’s intention not to contest the allegations in the petition.”

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regarding the interests of the child, the wishes of the child and parent, and the ability of the
potential custodians. Section 32A-4-22(A). The rules of evidence do not apply at
disposition; the court is instead allowed to consider “all relevant and material evidence
helpful in determining the questions presented, including oral and written reports, . . . even
though not competent had it been offered during the part of the hearings on adjudicatory
issues.” Section 32A-4-20(I); Rule 11-1101(D)(2).

2. The § 1912(d) and (e) Findings in the Context of New Mexico’s Procedural Framework

{30} With New Mexico’s procedural framework in mind, we consider which procedural
stage is best suited for addressing the requirements of § 1912(d) and (e) of ICWA. See
R.A.C.P. v. State (In re Interest of D.S.P.), 480 N.W.2d 234, 238 (Wis. 1992) (noting that
state statutes should be read to harmonize with ICWA); San Diego Cnty. Health & Human
Servs. Agency v. Francisco Z. (In re Matthew Z.), 95 Cal. Rptr. 2d 343, 349 (Cal. Ct. App.
2000) (explaining that the state proceeding best suited for addressing ICWA is the
proceeding that requires findings that parallel the ICWA findings). CYFD’s regular practice
has been to address the findings required by § 1912(d) and (e) at the earliest possible
procedural stage. Accordingly, CYFD asserts in this case that the district court, by issuing
the ex parte custody order, made the “active efforts” finding required by § 1912(d) and that
Mother’s stipulation at the temporary custody hearing satisfied § 1912(e)’s “serious . . .
damage” requirement. CYFD argues in the alternative that the dispositional hearing is the
appropriate procedural stage for addressing the requirements of ICWA. Mother argues that
the factual findings required by § 1912(d) and (e) must always be made at the adjudicatory
hearing. We agree with Mother that § 1912(d) and (e) findings must be made at the
adjudicatory hearing because the adjudicatory hearing is the procedural phase that affords
the Indian parent and tribe the most procedural due process protection and best
accommodates the requirements of § 1912.

{31} To construe ICWA within the procedural framework of New Mexico’s Abuse and
Neglect Act, we begin with a textual analysis to determine whether the plain meaning of the
relevant ICWA provisions addresses the question at hand. The plain language of § 1912(d)
and (e) specifies what is required to be shown: (1) that “active efforts have been made” and
(2) that “the continued custody of the child . . . is likely to result in serious emotional or
physical damage.” But the text gives only a vague indication of when the findings must be
made: prior to a “foster care placement,” which ICWA defines as “any action removing an
Indian child from its parent or Indian custodian for temporary placement in a foster home
. . . where the parent or Indian custodian cannot have the child returned upon demand, but
where parental rights have not been terminated.” § 1903(1)(i). This language does not
unambiguously indicate which procedural phase within a foster care placement proceeding
is the proper time for the § 1912(d) and (e) findings to be made. Accordingly, we resort to
the policy and purpose of ICWA and our tools of statutory construction as we attempt to
effectuate Congress’s intent.

11
3. New Mexico’s Ex Parte and Custody Hearing Stages Are Unsatisfactory Procedural
Stages for Addressing the Requirements of § 1912(d) and (e) of ICWA.

{32} New Mexico’s ex parte and custody hearing stages are ill-suited for making the §
1912(d) and (e) findings because they are emergency proceedings that do not provide
sufficient due process protections. New Mexico’s ex parte and custody hearing stages are
expedited emergency proceedings that enable the State to remove a child and take temporary
custody in order to ensure the child’s safety until a full hearing on the merits is held. See
Yount v. Millington, 117 N.M. 95, 101, 869 P.2d 283, 289 (Ct. App. 1993) (“[W]hen a
child’s safety is threatened, that is a sufficient basis to justify postponing the parent’s hearing
until after the child has been taken into protective custody.”). Congress has expressly
recognized a state’s power to implement emergency removal and placement actions for
Indian children in § 1922 of ICWA which states, in pertinent part:

Nothing in this subchapter shall be construed to prevent the emergency
removal of an Indian child who is a resident of or is domiciled on a
reservation, but temporarily located off the reservation, from his parent or
Indian custodian or the emergency placement of such child in a foster home
or institution, under applicable State law, in order to prevent imminent
physical damage or harm to the child.

{33} Although § 1922 expressly refers only to Indian children who are residents of or
domiciled on the reservation, we conclude that CYFD must necessarily have the power to
take emergency custody of any Indian child who is physically located off the reservation.
ICWA gives an Indian tribe exclusive jurisdiction “over any child custody proceeding
involving an Indian child who resides or is domiciled within the reservation of such tribe.”
§ 1911(a). But when an emergency arises with respect to a child who is physically located
off a reservation, the time-sensitive nature of the emergency may require CYFD to take
immediate action to remove the child from harm’s way without first establishing whether the
child is subject to exclusive tribal jurisdiction. See ICWA Guidelines, 44 Fed. Reg. at
67,589 to -90. Once the child is safe, § 1922 requires CYFD to “expeditiously initiate a
child custody proceeding subject to the provisions of this subchapter, transfer the child to
the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian
custodian, as may be appropriate.” Section 1922 thus allows CYFD to secure the child first
and ask questions about the child’s residence and domicile later in order to ensure the child’s
safety.

{34} The ICWA guidelines, the statute’s legislative history, and the decisions of other
jurisdictions support our conclusion. Other states have recognized their ability to perform
an emergency removal of an Indian child without first adhering to the requirements of §
1912. See San Bernardino Cnty. Dep’t of Children’s Servs. v. Jeannie V. (In re S.B.), 30
Cal. Rptr. 3d 726, 735-36 (Cal. Ct. App. 2005) (explaining that § 1922 should be read to
apply to Indian children who are not residents of or domiciled on a reservation); State ex rel.
Juvenile Dep’t of Multnomah Cnty. v. Charles (In re Jade Charles), 688 P.2d 1354, 1358 n.2

12
(Or. Ct. App. 1984) (explaining that “it is implicit that ‘emergency removal’ authority
extends to non-reservation Indian children”). ICWA’s legislative history explains that §
1922 was intended to “permit, under applicable state law, the emergency removal of an
Indian child from his parent or Indian custodian or emergency placement of such child in
order to prevent imminent physical harm to the child notwithstanding the provisions of
[ICWA].” H.R. Rep. No. 95-1386, at 25 (1978). The ICWA Guidelines confirm that
although “emergency action must be taken without the careful advance deliberation normally
required,” the “court shall be required to comply with the requirements of [ICWA] and reach
a decision within 90 days unless there are ‘extraordinary circumstances’ that make additional
delay unavoidable.” 44 Fed. Reg. at 67,590. We conclude that New Mexico’s ex parte and
custody hearings are emergency proceedings under § 1922 to which the requirements of §
1912 do not apply.

{35} Additionally, the ex parte and custody hearing stages are unsatisfactory settings in
which to make the § 1912(d) and (e) findings because the timing of those stages does not fit
within the notice timeline provided by § 1912 and because they require a lesser standard of
proof than that required by ICWA. Under ICWA, a “foster care placement or termination
of parental rights proceeding” cannot be held “until at least ten days after receipt of notice
by the parent or Indian custodian and the tribe,” and the parent, Indian custodian, or tribe is
entitled to “up to twenty additional days to prepare for such proceeding.” § 1912(a). In
contrast, New Mexico’s ex parte stage allows CYFD to obtain a court order for immediate
removal of a child without any notice to the parent or tribe. See § 32A-4-16. CYFD must
provide the parent with “reasonable notice” of the custody hearing, but the hearing must be
held within ten days of the date the petition is filed. Section 32A-4-18(A)-(B). Section 32A-
4-18’s ten-day time frame does not allow notice to reach the tribe and parent at least ten
days and up to thirty days before the custody hearing as required by § 1912(a). The ten-day
period does not allow the parent to consult fully with counsel and prepare a complete defense
on the merits of serious legal and factual issues. And it does not allow CYFD to adequately
prepare to present the expert witness testimony required by § 1912(e). At the ex parte and
custody hearing stages, a denial of parental custody under New Mexico law requires only
a showing of probable cause indicating abuse or neglect, see §§ 32A-4-16(A), -18(C), while
§ 1912(e) of ICWA expressly requires clear and convincing evidence that “serious emotional
or physical damage to the child” is likely. These divergent timelines and standards of proof
distinguish the ex parte and custody hearing stages from the adjudication stage, which
comports with the requirements of § 1912.

4. The Adjudicatory Hearing Is the Best Procedural Stage in Which to Make the § 1912(d)
and (e) Findings.

{36} New Mexico’s adjudicatory hearing incorporates procedural due process protections
and a stringent standard of proof that parallel those required by ICWA. The adjudicatory
hearing must be held within sixty days after the date the petition is served on the parent.
Section 32A-4-19(A). This time frame comports with ICWA’s requirement that the parent
and tribe receive notice at least ten days and up to thirty days before the commencement of

13
a foster care placement proceeding. See § 1912(a). The timing of the adjudicatory hearing
allows for the notice required by § 1912(a) while meeting the ICWA requirement that CYFD
“expeditiously” initiate a foster care placement proceeding following an emergency removal
or placement proceeding. See § 1922. If a parent denies allegations of abuse or neglect at
the adjudicatory hearing, the court must hear all evidence bearing on the issue. Section 32A-
4-20(G). Because the adjudicatory hearing is an evidentiary hearing, it is a practical time
to satisfy the ICWA requirement that CYFD present the “testimony of qualified expert
witnesses.” See § 1912(e). At a contested adjudication, the State is required to prove abuse
or neglect by “clear and convincing evidence, competent, material and relevant in nature.”
Section 32A-4-20(H). Consistently, § 1912(e) of ICWA requires a showing by “clear and
convincing evidence . . . 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.” The
similarities between New Mexico’s requirements for an adjudicatory hearing and the ICWA
requirements for the involuntary placement of an Indian child in foster care make the
adjudicatory hearing the best procedural phase for the court to make the findings required
by § 1912(d) and (e).

{37} More importantly, requiring courts to make the factual findings prescribed by §
1912(d) and (e) at the adjudicatory hearing furthers the purposes and policies behind ICWA
because both the parent and the tribe are able to participate meaningfully in the process.
Parents have a fundamental liberty interest in the care and custody of their children; due
process of law is required before parents can be deprived of that right. See Kathleen D.C.,
2007-NMSC-018, ¶ 12. ICWA also protects the interests of both the Indian child and the
tribe by preventing the unwarranted removal of Indian children from their unique culture and
heritage. See § 1901(3)-(5). Because we must construe ICWA by resolving all ambiguities
liberally in favor of the Indian parent and tribe, we conclude that the findings required by
§ 1912(d) and (e) always must be made at the adjudicatory hearing, which incorporates due
process protections.

5. New Mexico’s Dispositional Hearing Does Not Comport with ICWA’s § 1912(d) and (e)
Requirements.

{38} Compared with the adjudicatory hearing, the dispositional hearing stage is less
compatible with the requirements of § 1912(d) and (e). The dispositional stage occurs later
in the process, after the court has already ruled on the allegations of abuse and neglect.
Sections 32A-4-20(H), -22(A). CYFD asserts that the § 1912 findings do not factor into
whether a child is abused or neglected but are instead “more a dispositional type of issue.”
We disagree. The § 1912(e) finding is closely analogous to a finding of abuse under New
Mexico law. Compare § 1912(e) (requiring “a determination . . . 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”), with § 32A-4-2(B)(1) (defining an abused child as any child
“who has suffered or who is at risk of suffering serious harm because of the action or
inaction of the child’s parent, guardian or custodian”). It makes little sense for the court to

14
address the merits of an abuse allegation at the adjudicatory hearing and then later make the
similar § 1912(e) finding at disposition.

{39} The parties before us agree that the dispositional stage does not provide the parent
with due process protections afforded the parent at adjudication. The rules of evidence do
not apply at disposition; in fact, the court can receive and rely upon information that would
not have been considered competent evidence had it been offered at the adjudicatory hearing.
See § 32A-4-20(I); Rule 11-1101(D)(2). The Abuse and Neglect Act does not specify the
standard of proof that applies at disposition. These non-evidentiary procedures are
inconsistent with ICWA’s requirements of “clear and convincing evidence” and “testimony
of qualified expert witnesses.” § 1912(e). They are likewise inconsistent with a parent’s
right to contest that “active efforts have been made . . . to prevent the breakup of the Indian
family.” See § 1912(d). We conclude that the dispositional hearing is an unsatisfactory
stage at which to address the requirements of § 1912(d) and (e) of ICWA.

6. A Parent Can Admit to the Factual Findings Required by § 1912(d) and (e) Only If the
Court Adheres to Procedural Safeguards Protecting the Rights and Interests of the Parent,
Child, and Tribe.

{40} Parental stipulations to temporary CYFD custody pending adjudication are not
unusual in abuse and neglect proceedings. Our holding does not preclude stipulations to
temporary custody pending adjudication, so long as the court ensures that the parent
knowingly enters into the stipulation. Although we differ from the view expressed in the
Court of Appeals opinion that § 1913(a) controls voluntary stipulations made in involuntary
proceedings, we agree that § 1913(a) provides helpful guidance on what should be required
for a valid parental stipulation in involuntary proceedings. See Marlene C., 2009-NMCA-
058, ¶ 15. Under § 1913(a), a parent’s consent is valid only if the court ensures “that the
terms and consequences of the consent were fully explained in detail and were fully
understood by the parent or Indian custodian.” It is reasonable that the same underlying
principle should govern valid parental consent to temporary custody pending adjudication:
A parent must understand what the consent really means.

{41} At the custody hearing in this case, Mother’s newly appointed counsel explained to
her that Child was temporarily going to be in State custody, and the judge explained that
there would be a later hearing called an adjudication to determine whether Child would
remain with the State for a longer period of time. Mother does not contest that she intended
to stipulate to temporary custody pending adjudication. But nothing in the record indicates
that Mother understood her stipulation to temporary custody to amount to a permanent
waiver of the substantive rights afforded by § 1912(d) and (e). The stipulation order entered
at the custody hearing did not purport to waive any of Mother’s statutory rights under
ICWA.

{42} Admission to the factual findings required by § 1912 invokes more stringent
procedural safeguards than a parental stipulation to temporary custody. Unlike the custody

15
hearing, which is a preliminary emergency proceeding, the adjudicatory hearing addresses
the ultimate merits of the case, and a parent’s admission to allegations of either abuse or
neglect or to the factual findings required by § 1912(d) and (e) has much more serious
consequences than a stipulation to temporary custody. The result of a stipulation to abuse
or neglect may well be a permanent severance of the relationship between the parent and
child. Accordingly, the court must adhere to stricter procedural safeguards at adjudication
to ensure that parents do not casually surrender either their fundamental liberty interest in
the care and custody of their children or the substantive rights protected by ICWA. See
Kathleen D.C., 2007-NMSC-018, ¶ 12 (providing that the “interest of parents in the care,
custody, and control of their children is a fundamental liberty interest” (internal quotation
marks and citation omitted)); Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36
(1989) (discussing the “important substantive requirement[s]” that ICWA imposes on state
courts).

{43} Congress enacted ICWA to protect the rights and interests of the parent, the tribe, and
the child. See Miss. Band of Choctaw Indians, 490 U.S. at 32, 34, 52-53 (holding that a
parent cannot defeat ICWA’s provision of exclusive tribal jurisdiction over an Indian child
domiciled on the reservation by simply giving birth off the reservation and placing the child
for adoption). Congress intended ICWA to “protect the rights of the Indian child as an
Indian and the rights of the Indian community and tribe in retaining its children in its
society.” Id. at 37 (internal quotation marks and citation omitted). When enacting ICWA,
Congress knew that removing Indian children from their family and tribe could negatively
impact the tribe’s “long-term . . . survival and [have] damaging social and psychological
impact[s] on many individual Indian children.” Id. at 50 (internal quotation marks and
citation omitted). ICWA therefore protects a child’s interest in retaining “his or her tribal
and cultural heritage.” Id. at 50 n.24 (internal quotation marks and citation omitted). And
ICWA furthers tribal sovereignty by ensuring that tribes are able to raise their children with
their own cultural and societal values. Id. at 34.

{44} The tribe’s interest in its children is one more reason that the requirements of § 1912
cannot be taken lightly or addressed in a cursory manner. ICWA is replete with provisions
designed to protect the tribe’s interest in child custody proceedings affecting the tribe’s
children, including § 1911(a) (providing exclusive tribal jurisdiction over reservation
domiciliaries), § 1911(b) (providing presumptive tribal jurisdiction over non-domiciliaries),
§ 1911(c) (giving tribes the right to intervene in state court proceedings), § 1912(a)
(providing for the tribe’s right to notice of involuntary state court proceedings), § 1914
(providing for the tribe’s right to petition for invalidation of state court actions), § 1915(c)
(allowing tribes to reorder the placement priorities applicable to state court actions), §
1915(e) (giving the tribe the right to obtain placement records), and § 1919 (giving tribes the
authority to enter agreements with states). ICWA protects the tribe’s interest primarily
through its jurisdictional provisions and child placement preferences. See §§ 1911
(establishing ICWA’s jurisdictional scheme), 1915 (establishing placement preferences for
Indian children); see also Miss. Band of Choctaw Indians, 490 U.S. at 36 (explaining that
ICWA’s jurisdictional provisions are “the heart” of ICWA and that § 1915, establishing

16
placement preferences for Indian children, is the most important substantive requirement that
ICWA imposes on state courts).

{45} While an abuse and neglect proceeding is designed to protect the best interests of the
child and the rights of the parents, ICWA goes further by protecting the unique relationship
between a tribe and its children. That relationship is not to be severed casually or without
good cause. If a parent wishes to admit to the factual findings required by ICWA without
a full adjudicatory hearing, we must require procedural safeguards that meet the standards
New Mexico law requires for admissions in ordinary abuse and neglect proceedings. The
New Mexico Children’s Court Rules provide that a parent can admit to abuse or neglect, by
“admitting sufficient facts to permit a finding that the allegations of the petition are true,”
Rule 10-342(A) NMRA, and give details of the procedural safeguards required for an
admission to be valid, Rule 10-342(C)-(D). We hold that similar procedural requirements
apply when a parent admits to the factual findings prescribed under § 1912(d) and (e).
Before the court accepts a parent’s admission to the § 1912(d) and (e) findings, the court
must make “such inquiry as shall satisfy the court that there is a factual basis for the
admission.” Rule 10-342(D). CYFD must be prepared to offer evidence to satisfy the court
that such a basis exists. Cf. State ex rel. Children, Youth & Families Dep’t v. Stella P.,
1999-NMCA-100, ¶ 35, 127 N.M. 699, 986 P.2d 495 (explaining that to meet CYFD’s
burden of proof in a termination of parental rights proceeding, CYFD must present
“sufficient testimony to allow the court to make the required statutory findings”).

{46} Additionally, before accepting an admission, the court must ensure that the admission
is voluntary and that the parent understands (1) the allegations of the petition, (2) the
possible dispositions should the allegations of the petition be found true, (3) the right to deny
the allegations and have a full adjudicatory hearing, and (4) that the admission waives the
parent’s right to contest the § 1912(d) and (e) findings in a full adjudicatory hearing. See
Rule 10-342(C). In this case, Mother’s stipulation to temporary custody pending
adjudication did not meet the requirements for a valid evidentiary admission to the factual
findings required by § 1912(d) and (e).

E. The Proper Remedy in This Case is Reversal of the Adjudication of Neglect and
Remand for Further Proceedings.

{47} CYFD asks this Court to reverse the Court of Appeals’ decision and, if ICWA
requirements were not satisfied in this case, to remand this case to the district court to hold
an additional hearing regarding the ICWA requirements. Mother argues that the adjudication
of neglect must be reversed based on insufficiency of the evidence. While we agree with
Mother that the adjudication of neglect must be reversed because the findings required by
§ 1912(d) and (e) of ICWA were not made at the adjudicatory hearing on abuse and neglect,
we conclude that remanding to the district court for further proceedings is appropriate in this
case.

17
{48} Ordinarily, appellate reversal on substantive grounds of an adjudication of abuse or
neglect results in the dismissal of the petition and a remand to the district court, which
“retains jurisdiction to determine whether the parent prevailing on appeal should regain
custody of the child.” Benjamin O., 2007-NMCA-070, ¶ 35. If CYFD does not believe that
reunification is in the best interests of the child, “it can bring new or current allegations of
abuse, neglect, or abandonment to the district court’s attention,” id. ¶ 39, and argue that such
“allegations of abuse or neglect are sufficient to establish abuse or neglect by clear and
convincing evidence,” id. ¶ 40.

{49} In this case, we are deciding issues of first impression regarding proper
implementation of the ICWA requirements in New Mexico courts. CYFD asserts that it has
made a good faith effort to comply with the letter and spirit of ICWA by addressing §
1912(d) and (e) at the earliest possible procedural stage. We recognize that if we were to
order dismissal of the abuse and neglect petition for lack of proof on the ICWA
requirements, CYFD would be precluded from bringing the same potentially meritorious
allegations in a new petition but instead would have to decide whether it had grounds to
supplement the original petition or file a new petition with different allegations of abuse or
neglect. We conclude that requiring CYFD to begin the process anew in this case by
bringing new allegations of abuse or neglect neither promotes judicial economy nor protects
Child’s best interests. Accordingly, we remand this case to the district court for a new
adjudicatory hearing so that CYFD can present any evidence, including qualified expert
testimony, that bears on the findings required by § 1912(d) and (e).

III. CONCLUSION

{50} In child abuse and neglect proceedings to which ICWA applies, the findings required
by § 1912(d) and (e) always must be addressed at the adjudicatory hearing. They were not
in this case. Accordingly, we reverse the adjudication of neglect and remand this case to the
district court for a new adjudicatory hearing that satisfies the requirements of § 1912(d) and
(e) of ICWA.

{51} IT IS SO ORDERED.

__________________________________
CHARLES W. DANIELS, Chief Justice

WE CONCUR:

__________________________________
PATRICIO M. SERNA, Justice

__________________________________
PETRA JIMENEZ MAES, Justice

18
__________________________________
RICHARD C. BOSSON, Justice

__________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for Children, Youth & Families Dep’t v. Marlene C. (In re Esther V.),
Docket No. 31,738

CD CHILDREN
CD-CC Children’s Code
CD-CR Children’s Court
CD-CT Children’s Court Rules
CD-CS Custody

CL CRIMINAL LAW
CL-CN Child Abuse and Neglect

IL INDIAN LAW
IL-IW Indian Child Welfare Act

ST STATUTES
ST-IP Interpretation
ST-LI Legislative Intent

19