May 23, 2019- CYFD v. Helen G., No. A-1-CA-37886

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO, ex rel.
3 	CHILDREN, YOUTH & FAMILIES
4 	DEPARTMENT,
5 	Petitioner-Appellee,
6 v. 	No. A-1-CA-37886
7 	NELEH G. AND ARMANDO G.,
8 	Respondents,
9 and
10 	IN THE MATTER OF HELEN G.,
11 	Child-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 	John Julio Romero, Jr., District Judge
14 Children, Youth & Families Department
15 	Rebecca J. Liggett, Chief Children' s Court Attorney
16 	Santa Fe, NM
17 Kelly P. O'Neill
18 	Albuquerque, NM
19 	for Appellee
20 Roybal-Mack & Cordova, P.C.
21 	Antonia Roybal-Mack
22 Albuquerque, NM
23 	for Appellant
Court of Appeals of New Mexico
Filed 5/23/2019 10:13 AM

1 Deborah Gray
2 	Albuquerque, NM
3 	Guardian Ad Litem
4 	MEMORANDUM OPINION
5 	HANISEE, Judge.
6 	{I} 	The 	Guardian 	ad 	Litem 	(GAL) 	appeals 	from 	the 	district 	court's 	order
7 	adjudicating Child neglected. We issued a notice of proposed summary disposition
8 proposing to affirm, and appellate counsel has responded with a timely memorandum
9 	in opposition and motion to amend the docketing statement. We remain unpersuaded
10 that our initial proposed disposition was incorrect, and we therefore affirm the district
11 	court.
12 	{2} 	The GAL continues to challenge the district court finding that there is "reason
13 	to know" that Child is an Indian child within the meaning of the Indian Child Welfare
14 Act (ICWA). [MIO 2-4]
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In its adjudicatory order, the district court stated the following:
There is reason to know the child is an Indian child, based upon
testimony from the CYFD Permanency Planning Worker, Rebecca
Eisenberg, that Respondent Armando Gallegos told her that he believes
he 	has 	"some 	Navajo 	heritage" 	from 	a 	relative. 	However, 	it 	is
undetermined at this time whether the Indian Child Welfare Act applies
to the proceedings, as the investigation of the child's heritage by the
Navajo Nation is still pending. The parties are required to inform the
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Court of any subsequently received information concerning whether the
child is an Indian Child.
3 	[RP 168]
4 	{3} 	The GAL argues that Father's statement that he believes he has some Navajo
5 heritage is insufficient to create "reason to know" that Child is an Indian Child, citing
6 to a provision in the Code ofF ederal Regulations specifying how a state court should
7 determine if there is "reason to know" that a child is an Indian child. See 25 C.F .R.
8 	§ 23.107(c) (2018). [MIO 2-4] The GAL contends that the district court should not
9 have concluded that there was "reason to know" because Father's statement, without
10 more, does not give rise to a "reasonable belief' that Child is an Indian child and is
11 	merely speculative and conjectural. [MIO 3]
12 	{4} 	In our notice of proposed summary disposition, we questioned whether review
13 	of this finding was appropriate at this stage of the proceedings, noting that the district
14 court has not yet made a determination as to whether ICW A applies to this case
15 	because, as stated in the neglect adjudication, "the investigation of the child's
16 heritage by the Navajo Nation is still pending." [RP 160] Rather, the district court has
17 reserved ruling on the applicability of ICWA until information that it anticipates
18 	receiving becomes available. We therefore indicated that we were inclined to view
19 the district court's finding that "there is reason to know that Child is an Indian Child"
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1 as a non-final interlocutory determination and not subject to review at this time. See
2 Roarkv. Farmers Group, Inc., 2007-NMCA-074, 141, 142 N.M. 59, 162 P.3d 896
3 (recognizing that this Court's appellate jurisdiction is generally limited to final
4 judgments or decisions, interlocutory orders or decisions which practically dispose
5 of the merits ·of the action, or any final order after entry of judgment which affects
6 substantial rights, in any civil action in the district court).
7 	{5} 	In the memorandum in opposition, appellate counsel responds, citing to a
8 different portion of the C.F.R., which states in its entirety,
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If there is reason to know the child is an Indian child, but the court does
not have sufficient evidence to determine that the child is or is not an
"Indian child," the court must:
( 1) 	Confirm, 	by way 	of a report, 	declaration, 	or testimony
included in the record that the agency or other party used due diligence
to identify and work with all of the Tribes of which there is reason to
know the child may be a member (or eligible for membership), to verify
whether the child is in fact a member ( or a biological parent is a member
and the child is eligible for membership); and
(2) Treat the child as an Indian child, unless and until it is
determined on the record that the child does not meet the definition of
an "Indian child" in this part.
22 25 C.F.R. § 23.107(b) (2018).
23 	{6} 	We understand appellate counsel to argue that the district court erred when it
24 	stated that it was undetermined whether ICWA applied in this case, and that 25
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1 C.F.R. § 23.107(b )(2) required the district court to find that ICWA does apply based
2 on its finding that there is "reason to know" that Child is an Indian child. [MIO 3]
3 Appellate counsel argues further that, because the district court was compelled to
4 make a finding that ICWA applied, its finding that there is "reason to know" Child
5 is an Indian child is appealable under NMSA 1978, Section 39-3-2 (1966), because
6 it is a judgment affecting a substantial right. [MIO 2-3]
7 {7} 	We disagree. Contrary to appellate counsel's assertion, the portion of the
8 C.F .R. cited does not require the district court to find that ICWA applies when it finds
9 that there is "reason to know" a child is an Indian child. Rather, it requires the district
10 court to "treat the child as an Indian child," unless and until it is determined that the
11 	child does not meet the definition of an Indian child. We therefore reject the argument
12 that the district court was compelled to make a legal conclusion as to the applicability
13 	of ICWA on the basis of its finding. Moreover, the regulation affirmatively requires
14 the district court to "work with all of the Tribes of which there is reason to know the
15 	child may be a member (or eligible for membership), to verify whether the child is in
16 fact a member (or a biological parent is a member and the child is eligible for
17 membership)." 25 C.F.R. § 23.107(b)(l). Such an investigation, in cooperation with
18 the Navajo Nation, is exactly what the district court's order contemplates.
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1 {8} 	For these reasons, we remain of the opinion that there has been no entry of a
2 final order or judgment affecting Child's substantial rights as far as any ICWA issue
3 is concerned. As the district court's order makes clear, a determination as to the
4 applicability of ICWA is forthcoming, but has not yet been made. While the GAL
5 takes issue with the district court's statement that "there is reason to know" that Child
6 	is 	an Indian child, that statement has not been used as a basis for any final
7 determination in this matter. To the extent that the district court's use of the phrase
8 "reason to know" is not technically correct, this circumstance is insufficient to
9 	convert the district court's interlocutory determination into an appealable order.
10 	{9} 	In summary, the district court's decision to reserve ruling on the applicability
11 	of ICWA pending the outcome of the investigation by the Navajo Nation appears
12 principled and appropriate, and we see no basis or reason for the appellate court to
13 	interfere with the normal course of proceedings below or to issue a determination
14 affecting the applicability or non-applicability 	of ICWA at this juncture. We
15 	emphasize, however, that once the district court rules on the ICWA question, such a
16 determination is appealable. See Cherino v. Cherino, 2008-NMCA-024, 117-12, 143
17 N.M. 452, 176 P.3d 1184 (reviewing on appeal the district court's determination that
18 	ICWA applies); see also State ex rel. CYFD v. Nathan H., 2016-NMCA-043, 1112-
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1 23, 370 P.3d 782 (reviewing on appeal the district court's determination that ICWA
2 does not apply).
3 	{10} 	The GAL next continues to challenge the district court's determination that
4 Father did not abandon Child. [MIO 4-5] To reiterate the relevant facts on this issue,
5 in its adjudicatory judgment and dispositional 	order, the district court found
6 specifically as to Father:
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[A.G.] is the father of [Child]. [Father] failed to intervene and left the
child in an unsafe situation with the Respondent [Mother]- exposing
[Child] to a risk of suffering serious harm. There was violence in the
home between the [Father] and [Mother], including an incident of
domestic violence occurring between [Father] and [Mother] while
[Mother] was holding the young child in her arms. [Father] did not
attempt to provide resources for [Child], he failed to demonstrate
sufficient protective capacities to ensure [Child's] safety and well-being,
he consciously disregarded his responsibilities and duties to [Child], and
he is in need of additional parenting skills to safely parent [Child].
17 [RP 169] On these findings, the district court determined that, as to Father, Child was
18 	an abused child as defined by Section 32A-4-2(B)(4) (2018) (defining "whose parent,
19 guardian or custodian has knowingly, intentionally or negligently placed the child in
20 a situation that may endanger the child's life or health), and that Child was a
21 	"neglected child" as defined by Section 32A-4-2(G)(4) (2018) (defining "neglected
22 child" as one "whose parent, guardian or custodian is unable to discharge that
23 	person's responsibilities to and for the child because ofincarceration, hospitalization
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1 or physical or mental disorder or incapacity). [RP 169] However, the district court
2 also specifically declined to find that Father abandoned Child under a statutory
3 provision defining "abandonment" as "instances when the parent, without justifiable
4 cause ... left the child with others, including the other parent or an agency, without
5 provision for support and without communication for a period of three months if the
6 child was under six years of age at the commencement of the three-month period."
7 See§ 32A-4-2(A)(2). [RP 169]
8 	{11} 	In our notice of proposed summary disposition, we proposed to affirm, in part
9 because the GAL had failed to comply with our rules of appellate procedure by
10 including only a recitation of the evidence favorable to her position in the docketing
11 	statement. Specifically, although the record indicated that several witnesses testified
12 at the hearing, the GAL only informed this Court of those portions of Mother's
13 	testimony tending to show that Father abandoned Child. See Crutchfield v. NM Dept.
14 of Taxation and Revenue, 2005-NMCA-022, 1 17, 137 N.M. 26, 106 P.3d 1273
15 	(recognizing that where an appellant fails to include the substance of all evidence
16 bearing on a proposition, this Court will not consider a challenge to the sufficiency
17 of the evidence); see also Rule 12-208(D)(3) NMRA (requiring an appellantto set out
18 	all facts 	material to a consideration of the issues raised); Loverin 	v. 	Debusk,
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1 1992-NMCA-023,, 3, 114 N.M. 1, 833 P.2d 1182 ("In this [C]ourt's calendaring
2 system, it is important to have all the facts, including those that support what the trial
3 court did.").
4 	{12} 	Appellate counsel now asks that she be granted leave to amend the docketing
5 statement or that this matter be placed on the General Calendar for a full review of
6 the hearing at issue. [MIO 4-5] We first decline to place this matter on the General
7 Calendar. The GAL does not argue, either in the docketing statement or the
8 memorandum in opposition, that the district court's factual findings are not supported
9 by sufficient evidence. Rather, the GAL appears only to challenge the district court's
10 conclusion, based on those findings, that CYFD had not met its burden to show that
11 	Father abandoned Child as defined by Section 32A-4-2(A)(2). See State ex rel.
12 	Children, Youth and Families v. Scott C. 2016-NMCA-012, , 	14, 365 0.3d 27,
13 	( stating that CYFD has the burden in an abuse and neglect proceeding). Our review
14 	of the district court's factual findings supports its determination that Father did not
15 	abandon Child, as there are no findings to indicate either that Father acted "without
16 justifiable cause" or that he left Child without provision or support for the statutorily
17 	defined time period of more than three months. See§ 32A-4-2(A)(2) (defining that
18 	applicable definition of abandoned).
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1 {13} 	However, even if testimony to support such findings was introduced at the
2 hearing, the district court was not required to believe it or accept it. See Jaynes v.
3 	Wal-Mart Store No. 824, 1988-NMCA-076, 18, 107 N.M. 648, 763 P.2d 82 ("It is
4 for the trier of fact to weigh the evidence, determine the credibility of witnesses, .
5 reconcile inconsistent statements of the witnesses, and determine where the truth
6 lies."); see also Williams v. Williams, 1989-NMCA-072, 17, 109 N.M. 92, 781 P.2d
7 1170 (explaining that the duty to weigh the credibility of witnesses and to resolve
8 conflicts in the evidence lies with the [district] court, not the appellate court).
9 Additionally, under our standard of review, we do not review the evidence to
10 determine whether different factual findings could have been made. See Mayeux v.
11 	Winder, 2006-NMCA-028, 111, 139 N.M. 235, 131 P.3d 85 (recognizing that on
12 review of the district court's factual findings, the presence of evidence supporting the
13 	opposite result is not relevant).
14 	{14} 	Accordingly, review of the hearing at this stage to discover whether such
15 	evidence or testimony occurred below will not result in a reversal of the district court,
16 because, on appeal, we do not review the evidence to make additional factual findings
17 or determine if evidence existed that would have supported different findings. See
18 Blaze Constr. Co. v. Taxation & Revenue Dep't, 1994-NMSC-110, 124, 118 N.M.
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1 647, 884 P.2d 803 ("It is well established that an appellate court will not find facts
2 on 	appeal."); 	Hudson 	v. 	Village 	Inn 	Pancake 	House 	of Albuquerque, 	Inc.,
3 2001-NMCA-1 04, 18, 131 N.M. 308, 35 P.3d 313 ("The fact that other evidence
4 existed which would have supported different findings does not require reversal.").
5 We therefore also deny the request for leave to amend the docketing statement, as
6 appellate counsel has not demonstrated that amending the docketing statement would
7 result in a viable issue. See State v. Ibarra, 1993-NMCA-040, 113, 116 N.M. 486,
8 864 P.2d 302 (denying the motion to amend the docketing statement where the issue
9 the defendant sought to raise was not viable).
10 	CONCLUSION
11 	{15} 	For these reasons, we affirm the district court.
12 	{16} 	IT IS SO ORDERED.
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15 	WE CONCUR:
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J. MILES HANISEE, Judge
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