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. In CYFD v. Arthur C. and Angel J., 2011-NMCA-022, the New Mexico Court of Appeals* recently reconciled rule amendments, and an amendment to Section 32A-4-19 with Court Rule 10-343, to uphold a determination of abuse in the context of an Indian Child Welfare Act (ICWA) matter, and prior abuse of another child.
First, the Court concluded that Rule 10-343, rather than its predecessor Rule 10-320, applies because the court has authority to make new rules applicable to pending cases. The prior rule stated that an action must be brought within the time specified (60 days after service upon the Respondent), and Rule 10-343 makes dismissal for non-compliance discretionary.
Next, the Court concluded that Rule 10-343 trumps Section 32A-4-19, because court rules always trump legislative enactments concerning procedure. Section 32A-4-19, like the old Rule 10-320, also states that an action must be brought within 60 days after service upon the Respondent.
Finally, having concluded the adjudication was timely held, the Court concluded there was sufficient evidence to prove abuse, and active remedial efforts by CYFD, by beyond a reasonable doubt. While ordinary abuse/neglect cases require such proof be clear and convincing, ICWA imposes a higher standing for Indian children. To conclude there is sufficient evidence to meet the beyond a reasonable doubt standard, the "'evidence and inferences drawn from that evidence must be sufficiently compelling so that a hypothetical reasonable factfinder could have reached a subjective state of near certitude" about its conclusion." Id., citing State v. Maes, 2007-NMCA-089, ¶12, 142 NM 276.
In so concluding, the Court recounted from the record that, although Angelina was taken into CYFD custody upon birth, the Court could rely on abuse of other children, which showed father was incapable of properly caring for child. Additionally, Angelina herself suffered abuse as a result of domestic violence upon mother's body and stomach during pregnancy. As to remedial efforts, the Court recounted that father failed to attend parenting and substance abuse classes, or even the Termination of Parental Rights Hearing.
For the forgoing reasons, the termination of parental rights was affirmed.
If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
NOTES:
* Decision by Judge Roderick T. Kennedy. Judge Kennedy's opinions are particularly notable for their clarity and good sense, cutting various Gordian knots of legalese and jurisprudence.
