## Facts

- Marlene C., a Navajo Nation member, lived with her month-old child, Esther V., who qualified as an “Indian child” under the Indian Child Welfare Act (ICWA).
- After concerns were raised by others in the home, the New Mexico Children, Youth and Families Department (CYFD) filed an abuse-and-neglect petition and obtained an ex parte emergency custody order placing the child in CYFD’s legal custody.
- The ex parte paperwork and order asserted that CYFD had made ICWA “active efforts” to prevent breakup of the Indian family.
- At an initial custody hearing, the court did not take evidence or make ICWA findings; Mother stipulated to CYFD’s temporary legal custody pending adjudication.
- At the adjudicatory hearing, the district court found neglect (and dismissed the abuse allegation) and continued CYFD’s legal custody, but made no findings under ICWA § 1912(d) or § 1912(e).
- CYFD did not present testimony from a “qualified expert witness” addressing whether continued parental custody was likely to cause serious emotional or physical damage to the child, as required by ICWA § 1912(e).

## Issues

1. In a contested abuse-and-neglect adjudication involving an Indian child, must the district court make the factual findings required by ICWA § 1912(d) (active efforts) and § 1912(e) (clear and convincing evidence, including qualified expert testimony, of likely serious damage) at or by the adjudicatory stage?
2. Does a parent’s stipulation to temporary state custody pending adjudication convert an involuntary abuse-and-neglect case into a voluntary proceeding under ICWA § 1913, thereby displacing § 1912(d) and (e)?

## Decision

- The New Mexico Supreme Court affirmed the Court of Appeals’ reversal of the neglect adjudication.
- The court held that, in a contested adjudication governed by ICWA, the district court must make the § 1912(d) and § 1912(e) findings at the adjudicatory stage, based on evidence in the adjudicatory record (which may include qualifying evidence from earlier hearings).
- The court held that a parent’s temporary custody stipulation does not transform an involuntary abuse-and-neglect proceeding into a voluntary ICWA § 1913 proceeding and does not relieve the state of § 1912(d) and (e).
- Because CYFD failed to satisfy § 1912(e), including the qualified-expert-testimony requirement, the neglect adjudication could not stand.

## Legal Principles

- In state abuse-and-neglect proceedings involving an Indian child, ICWA’s foster-care-placement protections apply and require compliance with § 1912(d) and § 1912(e).
- By the time a contested adjudication is entered, the court must find:
  - Active efforts were made to provide remedial services and rehabilitative programs designed to prevent breakup of the Indian family, and those efforts were unsuccessful (§ 1912(d)); and
  - Clear and convincing evidence, including testimony of qualified expert witnesses, that continued custody by the parent is likely to result in serious emotional or physical damage to the child (§ 1912(e)).
- Ex parte or preliminary custody stages, standing alone, are insufficient to satisfy ICWA’s heightened adjudicatory requirements.
- A temporary stipulation to state custody pending adjudication is not a “voluntary” placement under ICWA § 1913 and does not waive § 1912 protections.

## Conclusion

The court required ICWA § 1912(d) active-efforts findings and § 1912(e) clear-and-convincing evidence—including qualified expert testimony of likely serious harm—by the adjudicatory stage in contested abuse-and-neglect cases, and held that a temporary custody stipulation does not convert the case into a voluntary ICWA proceeding.


In re Esther V., 248 P.3d 863 (N.M. 2011)