As a guardian ad litem (GAL) and alternative dispute resolution (ADR) practitioner in New Mexico, I take special interest in unusual court cases involving children, and there are few child protection cases trickier than "ICWA" cases.
In CYFD v. Marlene C., 2011-NMSC-005, the New Mexico Supreme Court has recently ruled that the court must make certain findings at the adjudication stage, under the Indian Child Welfare Act of 1978 (ICWA), 25 USC Sec. 1901-1963 (2006): (a) the State has made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and such efforts and proved unsuccessful: and (b) there is clear and convincing evidence, such as that based on 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. See 25 USC Sec. 1902(e). The Court also held that Sec. 1913, regarding voluntary proceedings for placement and termination, only applies to proceedings initiated by the parent(s).
Overall, the case serves as an excellent primer for ICWA issues and pitfalls.
In CYFD v. Marlene C., 2011-NMSC-005, the New Mexico Supreme Court has recently ruled that the court must make certain findings at the adjudication stage, under the Indian Child Welfare Act of 1978 (ICWA), 25 USC Sec. 1901-1963 (2006): (a) the State has made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and such efforts and proved unsuccessful: and (b) there is clear and convincing evidence, such as that based on 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. See 25 USC Sec. 1902(e). The Court also held that Sec. 1913, regarding voluntary proceedings for placement and termination, only applies to proceedings initiated by the parent(s).
Overall, the case serves as an excellent primer for ICWA issues and pitfalls.
Factual Background
In Marlene C., mom had agreed to be placed with her child in a residence under a "safety-contract," and the family subsequently indicated to CYFD that they no longer wanted to help mom and child because of mom's behavior. Father was incarcerated at the time and throughout the facts at issue. Therefore, CYFD filed an abuse/neglect petition and proposed ex parte custody order, which was quickly granted. The petition alleged neglect and that the parents were "unable to discharge their responsibilities to and for child because of incarceration ... or other ... incapacity." Id. at Para. 4. The petition was supported by an affidavit that stated facts sufficient to establish probable cause that child was abused or neglected, and that also stated reasonable and active efforts had been made to avoid removal of the child from the home. Id. Mom, through counsel, filed a response challenging the allegations and statements in the petition and the affidavit.
A custody hearing was then held within ten days of the ex parte order, as required by state law. At the custody hearing, Mom voluntarily consented to continued temporary custody, without again challenging the allegations and statements in the affidavit. The court then signed a stipulated order stating there was probable cause to believe the parents are unable to provide adequate supervision and care for the child, and that "clear and convincing evidence existed to believe continued custody by mom would likely result in serious emotional or physical damage." Mom did not contest the findings in the stipulated order.
Thereafter, at the adjudication hearing, CYFD did not present "qualified expert testimony" as required under Sec. 1912, but instead relied on mom's previous stipulation to temporary custody, and the court's findings in support of its ex party custody order. At the close of the hearing, the court dismissed the abuse petition, but granted the neglected petition, finding "by clear and convincing" evidence that mom had neglected the child, and that she was "unable to discharge [her] responsibilities" as alleged in the petition, and that "a factual basis exists to support this finding." Id. at Para. 9.
Purpose and Policy of ICWA as compared to the NM Abuse and Neglect Act
In more typical cases, the judge's finding might well is only required to find at adjudication that abuse or neglect has occurred, on the basis of clear and convincing evidence.
However, as the court noted in Marlene C., ICWA is a remedial statute "enacted ... 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.'" Id., Para. 16, citing 25 USC Sec. 1901(4). Because it is remedial, it is to be liberally interpreted to facilitate and accomplish the intent and purpose of the statute .Id., Para. 17.
Analysis
Based on the formal requirements, purpose and intent of ICWA, the Court concluded that the proper point in the New Mexico proceedings to make the necessary ICWA findings regarding likely results of continued custody and active efforts to prevent the breakup of the family is at the adjudication stage.
Because such findings must be made on the basis of clear and convincing testimony, such as expert testimony, the ex parte, custody or disposition hearings are "ill-suited for making the Sec. 1912(d) and (e) findings." Id., Para. 32. Specifically, at these phases, the rules of evidence and due process protections apply, and the burden of proof is only a preponderance of the evidence. Additionally, the former are required under State law to be held within a very short period of time, so adequate notice and preparation time cannot be afforded the Respondents, as required under ICWA.
In contrast, at the adjudicatory phase, the rules of evidence do apply and there are constitutional due process protections. Additionally, the adjudication is an evidentiary hearing and the burden of proof is consistent with that required for these ICWA findings, clear and convincing, and it is held within 60 days, which is consistent to the time frame required under ICWA .
The court also rejected an argument that the required ICWA findings were similar to the findings required at a dispositional hearing, which addresses continued custody and the treatment plan. Instead, the court ruled they are more similar to the abuse findings made at the adjudication phase. Additionally, once a full adjudicatory hearing is held, it would "make[] little sense" to then "later make similar Sec. 1912(e) findings at disposition." Id., Para. 38.
Finally, the court noted "[t]he tribe's interest in its children is one more reason that the requirements of Sec. 1912 cannot be taken lightly or addressed in a cursory manner," in a lesser hearing. Id, Para. 44. "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." Id, Para. 45. Therefore, "[i]f a parent wishes to admit to the factual findings required by ICWA without full adjudicatory hearing, we must require procedural safeguards that meet the standards." Id.
Accordingly, in this case the court found the required ICWA findings were not established, and the matter was remanded for a new adjudicatory hearing bearing on the requiring findings.
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