New Mexico Notice and Time Frame Case from Court of Appeals [ICWA]

Children, Youth & Families Department v. Tanisha G. and Isaac G.

This is an interesting and remarkable case, and a way to deal with continued notice violations and delay by an agency. Here are the highlights of this disturbing case of agency overreach:

CYFD took Child, then age four, into custody on January 26, 2018, after the 12 Bernalillo County Sheriffs Office executed a warrant for Father’s arrest, leaving no caregiver in the home to care for Child.

***

Parents were served with the petition on February 6, 2018. By that time, Father  had been released from custody and the charges against him dropped; his arrest was apparently the product of mistaken identity.

Meanwhile,

In the ensuing seventy-seven days, the parties appeared for three hearings: a status conference on February 27, 2018, and two adjudicatory hearings that had been set for April 2, 2018, and April 24, 2018, respectively. The district court declined to 14 commence the adjudication on either April 2 or April 24, however, because although CYFD had mailed ICWA notices to several tribal entities on February 8, 2018, and the tribal entities had received those notices shortly thereafter, CYFD had not filed proof of service to establish receipt in the record.

On April 25, 2018, Parents filed separate motions to dismiss, arguing that 19 CYFD had failed to commence the adjudication within sixty days as required by the Abuse and Neglect Act.

THEN,

The district court heard the motions to dismiss on the morning of May 24, 6 2018, at which time CYFD orally moved for an extension of time to commence the adjudicatory hearing. The district court denied CYFD’s request, noting that the court and parties had attempted multiple times to commence the adjudication, that CYFD’s failure to comply with ICWA’s notice requirements had precluded the court from timely adjudicating the matter, that the court had reminded CYFD that the time limits were running, and that CYFD had failed to file a motion to extend the time limits when the parties were last in court.  The district court granted the Parents’ motions to dismiss the petition with prejudice.

Hours later, Father filed an emergency motion for contempt of court, stating that arrangements had been made for Child to be reunited with Parents at 11: 15 a.m., but CYFD refused to return Child. The district court conducted an emergency hearing at 3:00 p.m., during which CYFD stated that it intended to file a motion to reconsider or, alternatively, to stay the judgment. The district court admonished CYFD for keeping Child without jurisdiction and ordered reunification before 5:00 p.m. that day, which occurred. CYFD appeals the district court’s dismissal order.

The Court of Appeals upholds the lower courts dismissal and ADDS THIS:

Finally, we briefly address CYFD’s assertion that the district court “was … inexplicably dismissive of [CYFD]’s concerns for Child’s welfare, which is not only an abuse of discretion, but demonstrates a conscious disregard by the [district] court of its statutory duty to ensure that ‘a child’s health and safety shall be the paramount concern.'” Contrary to CYFD’s characterization, however, we note that the district court heard from Father’s attorney that the conditions in the home had been remedied. The guardian ad litem (GAL) reiterated that Parents’ attorneys had suggested that the home was now clean and safe for Child. The GAL stated that Child and Parents share a strong bond and that Child was suffering from anxiety due to his separation from Parents. The GAL believed it was safe to return Child to  Parents. Moreover, the criminal allegations against Father, which had brought Child into CYFD’s custody in the first place, were a product of mistaken identity and had been dismissed months earlier. Based upon this testimony, we disagree with CYFD’s characterization that the district court disregarded Child’s health and safety.

New Mexico COA Allows Isleta Casino Worker’s Comp Claim to Proceed over Tribal Immunity Defense

Here is the opinion in Mendoza v. Isleta Resort & Casino & Hudson Ins. (N.M. Ct. App.):

CA35,520

Determination of Indian Child Case out of New Mexico Court of Appeals

Here.

Based on the difficulties CYFD experienced in receiving evidence on Mother’s lineage and the Navajo Nation’s determination that Children are ineligible, we hold that Children are not eligible for enrollment with the Navajo Nation. Nevertheless, Father asserts that the status of Children does not need to be certain to implement the ICWA and the district court must only examine whether the ICWA possibly applies, relying on In re Desiree F., 99 Cal. Rptr. 2d 688 (Ct. App. 2000). We conclude that Desiree F. does not assist Father.

Active Efforts and Burden of Proof ICWA Case out of NM Court of Appeals

Here.

The court held that the burden for active efforts is clear and convincing evidence. In addition, that active efforts consists of more than reasonable efforts, citing to the 2015 Guidelines and other state court decisions. In this case, the court held there was not clear and convincing evidence that the state provided active efforts:

The testimony at the TPR demonstrates that the Department took the affirmative steps of meeting with Father to create a treatment plan, and referring Father to a parenting class. It appears the Department pointed Father in the direction of service providers, but did little else to assist Father in implementing the treatment plan. Father was not offered services aside from the one parenting class. The Department took a passive role by shouldering Father with the burden of not only independently locating and obtaining services, but also ensuring the service providers were communicating with the Department about his progress.

State ex rel Attorney General v. Grand River Enterprises — New Mexico

From April:

2014-32-091

An excerpt:

Defendant Grand River Enterprises Six Nations, Ltd., a tobacco company, appeals the district court’s denial of its motion to set aside a default judgment entered against it in an action brought by the State to force Grand River to contribute money into New Mexico’s  tobacco escrow fund. On appeal, Grand River argues that the default judgment must be set aside because (1) the State failed to comply with the rules governing the service of process on foreign corporations; and (2) the district court did not have personal jurisdiction over Grand River when it entered the default judgment. Because we agree with Grand River that the district court lacked personal jurisdiction, we conclude that the district court’s default judgment is void and must be set aside.

New Mexico COA Remands Sandia Police Sexual Harassment Suit

Here is the opinion in South v. Lujan:

CA32,015

An excerpt:

Plaintiff-Appellant Tiffany South—a former officer with the Sandia Pueblo Police Department (Plaintiff) filed a complaint for violation of the New Mexico Human Rights Act (NMHRA), retaliatory discharge, and tortious inference with contract against Defendants-Appellees Isaac Lujan, William Duran, and Mary-Alice Brogdon (collectively, Defendants) in their individual capacities. The district court granted Appellees’ motion to dismiss based on lack of jurisdiction. Because the record on appeal is insufficient to permit review, we reverse and remand for factual development on the issues relevant to state court jurisdiction.

New Mexico Court of Appeals Affirms Conviction of Non-Indian Arrested by Tribal Police

Here is the opinion in State v. Sanchez (N.M. App.).

An excerpt:

Defendant Ronald Sanchez was arrested by a Tesuque Pueblo police officer on property of the Tesuque Pueblo and charged in Santa Fe County Magistrate Court with aggravated driving while under the influence of intoxicating liquor or drugs (DWI), first offense, contrary to NMSA 1978, Section 66–8–102 (2010). The officer was cross-commissioned as a Santa Fe County special deputy sheriff. His salary was paid by the Tesuque Pueblo Police Department, and it included incremental pay financed from a grant to assist the department in targeting the motoring public. On appeal to the district court, Defendant was again convicted. He appeals his conviction to this Court, contending that the district court (1) erred in denying his motion to suppress by holding that the tribal officer who conducted the arrest was properly cross-commissioned and had authority to arrest Defendant under the Motor Vehicle Code; and (2) erred in denying Defendant’s defense, pursuant to NMSA 1978, Section 66–8–137(B) (1978), and holding that the tribal officer did not have financial incentive motivating his arrest of Defendant. We hold that (1) the tribal officer was properly cross-commissioned and could properly arrest Defendant while wearing the uniform of and receiving his salary from the Tesuque Pueblo Police Department, and (2) the tribal officer’s receipt of pay from a grant and his obligation under the grant to make monthly statistical reports did not give rise to a defense under Section 66–8–137(B). We affirm Defendant’s conviction.