STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellant,
TANISHA G. and ISAAC G., Respondents-Appellees. IN THE MATTER OF DAMIAN G., Child.
FROM THE DISTRICT COURT OF BERNALILLO COUNTY John J. Romero,
Children, Youth & Families Department Rebecca J. Liggett,
Chief Children's Court Attorney Santa Fe, NM Kelly P.
O'Neill, Children's Court Attorney Albuquerque, NM
Offices of Jane B. Yohalem Jane B. Yohalem Santa Fe, NM for
Appellee Tanisha G.
Roybal-Mack & Cordova, P.C. Antonia Roybal-Mack
Albuquerque, NM for Appellee Isaac G.
G. Tasso Albuquerque, NM Guardian Ad Litem
P. DUFFY, JUDGE.
The district court dismissed with prejudice the New Mexico
Children, Youth and Families Department's (CYFD) abuse
and neglect petition against Tanisha G. (Mother) and Isaac G.
(Father, and collectively, Parents) for failure to timely
adjudicate the petition within sixty days as required by Rule
10-343 NMRA and NMSA 1978, Section 32A-4-19(A) (2009) of the
Abuse and Neglect Act, NMSA 1978, §§ 32A-4-1 to -35
(1993, as amended through 2018). CYFD appeals the district
court's dismissal and contemporaneous refusal to grant
CYFD's oral motion for an extension of time pursuant to
Rule 10-343(D). We affirm.
CYFD took Child, then age four, into custody on January 26,
2018, after the Bernalillo County Sheriffs Office executed a
warrant for Father's arrest, leaving no caregiver in the
home to care for Child. On January 30, 2018, CYFD filed an
abuse and neglect petition alleging that Mother was homeless
and had left Child in Father's care, and that Mother had
tested positive for certain controlled substances. CYFD
further alleged that the conditions in Father's home were
dangerous. A CYFD investigator provided a detailed
description, stating that the home was heated by a single
space heater and was very cold; that the home was
"extremely cluttered and in disarray"; that there
was uneaten old, moldy food on the kitchen counter and no
clean place for Child to sleep; and that drug paraphernalia
(needles and pipes) were found inside the home and in the
yard, and potentially dangerous tools ("axes[, ]
hatchets, screwdrivers, and knives") were strewn
throughout the yard. Father argued that the police had
"torn up" the home when executing the warrant and
CYFD's impressions were inaccurately based on conditions
as altered by the police.
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. The following day, Parents
attended a custody hearing before a special master, who, in
compliance with the Indian Child Welfare Act of 1978 (ICWA),
25 U.S.C. §§ 1901 to 1963 (2018), and Rule
10-315(D) NMRA, asked about Parents' Native American
ancestry to determine whether ICWA applied in this case.
See 25 C.F.R. § 23.107(a) (2018) (stating that
state courts must ask whether participants in a custody
proceeding know or have reason to know that the child is an
Indian child). Father testified about his Native American
ancestry, stating that his mother is
"Navajo-Apache," that his maternal grandmother was
"full" and his maternal grandfather Was
"half." Based on this testimony, the special master
found that there was "reason to know" that Child is
an Indian child and that ICWA applies. See §
1903(4) (defining "Indian child" as "any
unmarried person who is under age eighteen and is either (a)
a member of an Indian tribe or (b) is eligible for membership
in an Indian tribe and is the biological child of a member of
an Indian tribe"); NMSA 1978, § 32A-1-4(L) (2016)
(same). CYFD's attorney stated that it would
"abide" by the ICWA finding. The district court
adopted the special master's recommendations, as set
forth in an order prepared by CYFD during the hearing, and
entered a temporary custody order on February 8, 2018, which
included a finding that Child is an Indian child. The court
further ordered that "[b]ecause there is reason to know
[C]hild meets the definition of Indian child as set forth in
ICWA, the [c]ourt shall treat [C]hild as an Indian child
subject to [ICWA] unless and until it is determined on the
record that [C]hild does not meet the definition of an Indian
child under applicable law." The custody order stated
that Child shall remain in CYFD's custody pending
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 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 CYFD had failed to commence the adjudication
within sixty days as required by the Abuse and Neglect Act.
Section 32A-4- 19(A) (stating that "[t]he adjudicatory
hearing in a neglect or abuse proceeding shall be commenced
within sixty days after the date of service on the
respondent"); see also Rule 10-343(A) (same).
CYFD finally filed proof of service of the ICWA notices on
April 26, 2018, but filed no response to either of the
motions to dismiss.
The district court heard the motions to dismiss on the
morning of May 24, 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 ...