Termination of Parental Rights and Duty of Tribal Enrollment

The New Mexico Court of Appeals case of State ex rel. Children, Youth & Families Dep‘t v. Marsalee P. concerns an important issue of the termination of parental rights under the Indian Child Welfare Act (ICWA) and the New Mexico‘s Abuse and Neglect Act.

In short, when a defendant and her children are eligible for enrollment in an Indian tribe, is the district court obligated to make sure that the Department of Children, Youth and Families has pursued that enrollment for the children so that the ICWA applies to the termination proceedings?

The answer according to the Court of Appeals is yes, there is a duty to pursue tribal enrollment of the children.

In this case, the Children, Youth and Families Department filed a neglect/abuse petition against the defendant regarding her three children. The Department filed the petition based on unsanitary living conditions and the defendant‘s illegal drug use.

When the district court held a custody hearing, it referenced the Department‘s report, which stated that the ICWA applied to the children because they were eligible for enrollment with the Navajo Nation. However, the district court said that the ICWA didn‘t apply to the children, and the Department agreed. The issue on appeal surrounds the applicability of the ICWA.

At the beginning of the trial for the defendant‘s termination of parental rights, the defendant‘s counsel requested a continuance, explaining that the defendant was in the process of enrolling with the Navajo Nation. As a result, the ICWA would apply. The Department argued that the defendant and children weren‘t enrolled at the beginning of the case, so the ICWA couldn‘t apply. The district court agreed to apply the ICWA if the defendant arrived at the hearing with a certificate of Indian blood (CIB) issued by the Bureau of Indian Affairs (BIA).

However, the defendant did not have the CIB when she arrived at the hearing. The defendant indicated that her application for the Navajo Nation was delayed because of a complicated history of her own adoption and the difficulties in tracing her lineage. Since the defendant wasn‘t enrolled in the Navajo nation at the time of the trial, the district court proceeded as if the ICWA didn‘t apply. The district court terminated the defendant‘s parental rights.

The defendant appealed, arguing that the district court erred when it didn‘t apply the protections of the ICWA. First, she argued that the district erred when it determined the children were not Indian children as defined by the ICWA, which would have given preferential foster placement to extended family and required a higher standard of proof than in non-IWCA termination proceedings. Second, the defendant argued that the Department had an obligation to pursue enrollment on behalf of the children under the Abuse and Neglect Act, and that the district court shouldn‘t have conducted the trial when the Department failed in this obligation.

The Court of Appeals began by emphasizing that the ICWA is a remedial statute designed to “promote the stability and security of Indian tribes and families.” It went on to explain how the ICWA provides substantive and procedural protections to ensure that Indian children are placed in foster or adoptive situations that “reflect the unique values of Indian culture.” Specifically, the ICWA requires the state to give preferential foster placement to “a member of the child‘s extended family, with the tribe, or with another Indian family.” In order to do otherwise, the state must show “good cause,” and the tribe must receive notice in order to intervene in the proceedings.

The New Mexico Abuse and Neglect Act has provisions to effectuate the ICWA. Specifically, it requires the state to make reasonable efforts to determine if a child is an Indian child. If ICWA does apply, the Department has to show that it has notified the Indian tribe and that it has taken actions to comply with the ICWA placement preferences. The district court then must ensure that termination complies with the ICWA.

The Court of Appeals first had to determine whether the defendant‘s children were Indian children under the ICWA and the Abuse and Neglect Act. It explained that the defendant and her children were eligible for enrollment, but were not enrolled members in the Navajo Nation. Since they weren‘t members, the children aren‘t defined as Indian children for legal purposes. The issue in dispute is whether eligibility for enrollment in an Indian tribe means that the Department has an obligation to pursue their enrollment, such that the protections of the ICWA attach.

The Court reasoned that the Department knew the children were eligible for enrollment, but that it “had no concerns about going forward with the trial at that time without applying ICWA.” As such, the Department failed in its statutory obligation to “pursue the enrollment on the children‘s behalf.” Since the Department failed its obligation, the Court explained that the district court shouldn‘t have gone forward with the trial.

The Court emphasized the Department‘s “affirmative obligation” to pursue enrollment prior to the termination of parental rights, and for the district court to make sure this affirmative obligation is met. In short, the Court concluded that the district court erred by terminating the defendant‘s parental rights before it made sure that the Department had fulfilled its obligation to pursue the children‘s enrollment in the Navajo Nation.


Related Reading:
New Mexico Child Custody Issues Involving Native American Children
Termination of Parental Rights in New Mexico – Family Members Must be Considered for Placement

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