December 5, 2022- CYFD v. James M., No. A-1-CA-39480

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ______________	2
Filing Date: December 5, 2022	3
No. A-1-CA-39480	4
STATE OF NEW MEXICO ex rel.	5
CHILDREN, YOUTH & FAMILIES	6
DEPARTMENT,	7
Petitioner-Appellee,	8
v.	9
JAMES M.,	10
Respondent-Appellant,	11
and	12
FARRAH S.,	13
Respondent,	14
IN THE MATTER OF JOVAN M.,	15
JAMIA M., and JARROM M.,	16
Children.	17
APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY	18
Flora Gallegos, District Judge	19
Court of Appeals of New Mexico
Filed 12/5/2022 11:00 AM

Children, Youth & Families Department	1
Mary McQueeney, Chief Children’s Court Attorney	2
Santa Fe, NM	3
Kelly P. O’Neill, Assistant Children’s Court Attorney	4
Albuquerque, NM	5
for Appellee	6
Susan C. Baker	7
El Prado, NM	8
for Appellant	9
Victoria W. Doom	10
Las Vegas, NM	11
Guardian Ad Litem	12

OPINION	1
YOHALEM, Judge.	2
{1} 	The Appellee’s motion for rehearing was granted. The opinion filed in this	3
case on September 26, 2022 is hereby withdrawn, and this opinion is substituted in	4
its place.1
5
{2} 	James M. (Father) appeals the district court’s order terminating his parental	6
rights to his three children (Children).2 This case is subject to the Indian Child	7
Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 to 1963. ICWA sets “minimum	8
Federal standards” for the removal of an Indian child from their family, for continued	9
state custody of an Indian child, and, most relevant here, for the termination of	10
parental rights to an Indian child. 25 U.S.C. § 1902.	11
{3} 	Father raises two issues on appeal, which he contends require reversal of the	12
district court’s judgment terminating his parental rights. First, Father contends that	13
ICWA and New Mexico state law require the district court at the adjudicatory	14
hearing to find that Father abused or neglected Children by evidence beyond a	15
reasonable doubt, rather than by clear and convincing evidence. We conclude that	16
ICWA and New Mexico law together require that a district court’s findings of abuse	17
1
For the guidance of the reader, we note that only the order on remand has
been modified.
2 The parental rights of Farrah S. (Mother) were terminated in the same
proceeding. Mother has not appealed.

2
and neglect at an adjudication involving an Indian child be supported by clear and	1
convincing evidence, not evidence beyond a reasonable doubt. We, therefore, find	2
no error in the district court’s findings at adjudication. 3
3
{4} 	Father next contends that the district court’s finding pursuant to ICWA, 25	4
U.S.C. § 1912(d), that the Children, Youth & Families Department (CYFD) made	5
“active efforts” to reunite Father and Children and prevent the breakup of the Indian	6
family was not supported by sufficient evidence at the termination of parental rights	7
(TPR) hearing. We agree with Father that CYFD failed to present evidence sufficient	8
to support the district court’s finding beyond a reasonable doubt that the efforts	9
CYFD made to assist Father complied with the “active efforts” requirement of	10
ICWA. We reverse and remand on this basis for proceedings consistent with this	11
opinion.	12
3
We note that the New Mexico Legislature adopted a new statute governing
abuse and neglect and custody proceedings concerning Indian children in 2022: the
Indian Child Protection Act (ICPA), NMSA 1978, §§ 32A-28-1 to -42 (2022). This
case was filed in 2018; therefore, we rely on the provisions of the New Mexico
Abuse and Neglect Act (ANA), NMSA 1978, §§ 32A-4-1 to -35 (1993, as amended
through 2022), as well as ICWA, which were in place before the adoption of ICPA.
We note that there is no significant difference relevant to the issues discussed in this
opinion between the federal and state law applied in this opinion and ICPA.

3
BACKGROUND	1
{5} 	We briefly review the circumstances leading to Children being taken into	2
custody by CYFD, the facts supporting the adjudication of neglect by Father, and	3
Father’s treatment plan.	4
{6} 	Children were in the care of Mother when the abuse and neglect petition was	5
filed on February 14, 2019. Father was living in Louisiana and working as a long-	6
haul truck driver. Mother had previously been involved with Zuni Pueblo’s social	7
services agency due to substance abuse resulting in neglect of Children. She did not	8
successfully work her treatment plan.	9
{7} 	The two older Children had lived with Father from March 2018 until he	10
returned them to Mother eight months later in November 2018. Father testified at	11
the TPR hearing that he returned them, in part, because he believed Mother had	12
stopped using drugs and was doing better. Father knew that a tribal judge had	13
returned Mother’s other two children to her in June or July 2018, supporting his	14
belief that Mother was doing better. He hoped at that time to have an ongoing	15
relationship with her.	16
{8} 	Father testified at the TPR hearing that when he visited in November, he had	17
some concerns but did not see obvious signs that Mother was using drugs. Later,	18
when he called Mother, she started hanging up on him and sounded strange. Father	19
called the police to ask them to do a welfare check on Children. When he did not	20

4
hear anything about the welfare check, Father made a trip to New Mexico to check	1
on Children. Finding that Mother was drinking, he called CYFD. Although he	2
believed Mother’s behavior put Children at risk, he left Children with her and	3
returned to his home and job in Louisiana.	4
{9} 	In mid-February 2019 Father learned from Mother that Children had been	5
taken into state custody. Father contacted CYFD the next day. At the adjudicatory	6
hearing, Father testified 	that he did not have the ability to care for Children	7
immediately. He said he was looking for a new job that would allow him to work	8
locally so he could be home with Children. A CYFD investigator testified at the	9
adjudicatory hearing that Father had been able to obtain low-cost housing when	10
Children were living with him, but no longer qualified when he was living on his	11
own. The investigator reported that Father did not have appropriate housing to take	12
care of Children at the time of the adjudication. The district court found, by clear	13
and convincing evidence, that Father had neglected Children, pursuant to Section	14
32A-4-2(G)(2) (defining a “neglected child” to mean a parent’s inability to provide	15
adequate care because of the parent’s faults or habits), and found as well, also by	16
clear and convincing evidence, that continued custody of Children by Father was	17
“likely to result in serious emotional or physical damage” to Children, a finding	18
required by ICWA, 25 U.S.C. § 1912(e), because he had placed Children at risk by	19
leaving them with Mother, knowing Mother was drinking and using drugs.	20

5
{10} 	The district court’s findings state that the court was not persuaded that	1
Father’s calls to police and CYFD were adequate to protect Children. Father was	2
ordered to work a treatment plan that required him to obtain safe and stable housing,	3
participate in the Circle of Security parenting classes (a parenting program offered	4
by CYFD), participate in a psychological evaluation and follow the psychologist’s	5
recommendations, and participate in a domestic violence assessment and follow the	6
recommendations.	7
{11} 	We discuss additional evidence later, as necessary to our decision.	8
DISCUSSION	9
I. 	Proof of Neglect or Abuse at an Adjudicatory Hearing in an ICWA Case	10
in New Mexico Is by Clear and Convincing Evidence	11
{12} 	Father first alleges on appeal that the district court erred in its adjudicatory	12
judgment in failing to apply a beyond a reasonable doubt standard of proof to its	13
finding that Children were neglected by Father. The district court, in its adjudicatory	14
judgment, found by clear 	and convincing evidence that Father had neglected	15
Children, pursuant to Section 32A-4-2(G)(2) (defining a “neglected child” to mean	16
a parent’s inability to provide adequate care because of the parent’s faults or habits).	17
Father alleges that the district court applied the wrong standard of proof.	18
{13} 	Father’s 	argument 	conflicts 	with 	our precedent 	applying 	the clear 	and	19
convincing evidence standard of proof to all required findings at an adjudicatory	20
hearing involving an Indian child. In our decision in State ex rel. Children, Youth &	21

6
Families Department v. Maisie Y., 2021-NMCA-023, 489 P.3d 964, we held that the	1
state law requirement that the district court find abuse or neglect “on the basis of	2
clear and convincing evidence,” § 32A-4-20(H), applies to adjudicatory proceedings	3
concerning an Indian child. Maisie Y., 2021-NMCA-023, ¶ 21. We see no reason to	4
reconsider this precedent, and Father offers none.	5
{14} 	We note that the ICWA requirement for an additional finding that the return	6
to the parent’s custody and care is “likely to result in serious emotional or physical	7
damage to the child” must be proved at the adjudicatory hearing “by clear and	8
convincing evidence,” not by evidence beyond a reasonable doubt. 25 U.S.C.	9
§ 1912(e). 	It is only at the TPR hearing that ICWA requires proof beyond a	10
reasonable doubt of the likelihood of serious emotional or physical damage to the	11
child if returned to the parent’s care. See 25 U.S.C. § 1912(f) (providing that the	12
standard of proof at termination of parental rights is beyond a reasonable doubt); cf.	13
25 U.S.C. § 1912(e) (providing that standard of proof at adjudication must be	14
supported by clear and convincing evidence).	15
{15} 	New Mexico law adopts these same standards of proof, allowing proof by	16
clear and convincing evidence at an adjudication involving an Indian child, and	17
requiring that ICWA requirements and state law requirements alike be proved by	18
evidence beyond a reasonable doubt at a hearing to terminate parental rights to an	19
Indian child. See Maisie Y., 2021-NMCA-023, ¶ 19 (“[W]e hold that Section 32A-	20

7
4-29(I) dictates the grounds supporting termination of parental rights in ICWA cases,	1
including the determination that a child has been abused or neglected under Section	2
32A-4-28(B)(2), must be proved beyond a reasonable doubt.”).	3
{16} 	In this case, the district court properly found neglect by Father under Section	4
32A-4-2(G)(2) 	at the adjudicatory hearing, applying the clear 	and convincing	5
evidence standard of proof, and in contrast, made its finding of neglect at the TPR	6
hearing by evidence beyond a reasonable doubt.4 We do not see any error in these	7
findings or in the standard of proof applied by the district court at either the	8
adjudicatory hearing or the TPR hearing.	9
II. 	The District Court’s Finding That CYFD Made “Active Efforts” to Assist	10
Father 	Toward 	the 	Goal 	of 	Reunification 	Is 	Not 	Supported 	by	11
Substantial Evidence in the Record	12
{17} 	To terminate parental rights in proceedings brought under the ANA when	13
those proceeding are not subject to ICWA, the district court is generally required to	14
find that CYFD made “reasonable efforts” to “assist the parent in adjusting the	15
conditions that render the parent unable to properly care for the child.” Section 32A-	16
4-28(B)(2). 	In a termination 	of parental rights 	proceeding subject to 	ICWA,	17
4
We note that in addition to finding neglect or abuse beyond a reasonable
doubt under our state law, termination of parental rights under ICWA also requires
a finding beyond a reasonable doubt “that the continued custody of the child by the
parent . . . is likely to result in serious emotional or physical damage to the child,”
as required by 25 	U.S.C. 	§ 1912(f) 	of ICWA. 	Father’s 	argument on appeal
challenged only the district court’s finding of neglect under state law.

8
however, this standard is heightened: CYFD must prove that “active efforts have	1
been made to provide remedial services and rehabilitative programs designed to	2
prevent the breakup of the Indian family and that these efforts have proved	3
unsuccessful.” 25 U.S.C. § 1912(d).5
4
{18} 	We begin our discussion of the sufficiency of the evidence to establish that	5
CYFD 	made 	“active 	efforts” 	to 	provide Father 	with 	remedial 	services 	and	6
rehabilitative programs designed to prevent the breakup of Children’s family with a	7
review of the law defining “active efforts.” We then turn to the record to determine	8
whether the evidence is sufficient to support the district court’s finding that the	9
degree of certainty required by the beyond a reasonable doubt standard, CYFD made	10
“active efforts” toward the goal of reuniting Father and Children. Concluding that	11
the evidence is insufficient to support the court’s finding that “active efforts” were	12
made, we reverse.	13
A. 	ICWA’s “Active Efforts” Requirement	14
{19} 	This Court has held that the “active efforts” standard imposed by ICWA is a	15
“more involved and less passive standard than that of reasonable efforts.” State ex.	16
rel. Child., Youth & Fams. Dep’t v. Yodell B., 2016-NMCA-029, ¶ 20, 367 P.3d 881,	17
5 Section 1912(d) of ICWA reads as follows: “Any party seeking to effect
a . . . termination of parental rights to, an Indian child under [s]tate law shall satisfy
the court that active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family and that
these efforts have proved unsuccessful.” Id.

9
overruled on other grounds, Maisie Y., 2021-NMCA-023. Yodell B. describes the	1
distinction as follows:	2
Passive efforts are where a plan is drawn up and the client must develop	3
his 	or her own resources towards bringing 	it to fruition. 	Active	4
efforts . . . is where the state [permanency worker] takes the client	5
through the steps of the plan rather than requiring that the plan be	6
performed on its own.	7
2016-NMCA-029, ¶ 17 (internal quotation marks and citation omitted). “The term	8
active efforts, by definition, implies heightened responsibility compared to passive	9
efforts. Giving the parent a treatment plan and waiting for the parent to complete it	10
would constitute passive efforts. Active efforts require more than pointing the parent	11
in the right direction, it requires ‘leading the horse to water.’” State ex rel. Child.,	12
Youth & Fams. Dep’t v. Keon H., 2018-NMSC-033, ¶ 42, 421 P.3d 814 (alterations,	13
internal quotation marks, and citations omitted).	14
{20} 	When construing ICWA, we accord substantial weight to the federal ICWA	15
regulations and interpretive guidelines published by the Bureau of Indian Affairs.	16
See State ex rel. Child., Youth & Fams. Dep’t v. Marlene C., 2011-NMSC-005, ¶ 18,	17
149 N.M. 315, 248 P.3d 863; State ex rel. Child., Youth & Fams. Dep’t v. Douglas	18
B., 2022-NMCA-028, ¶ 16, 511 P.3d 357, cert. granted (S-1-SC-39139, Apr. 19,	19
2022). We therefore turn to the definition of “active efforts” found in the federal	20
ICWA 	regulations, 	25 	C.F.R. 	§ 	23.2 	(2018). 	That 	regulation 	gives 	eleven	21

10
nonexclusive examples of ways in which a state agency can meet the “active efforts”	1
requirement. The regulation reads, in relevant part, as follows:	2
Active efforts means affirmative, active, thorough, and timely efforts	3
intended primarily to maintain or reunite an Indian child with his or her	4
family. Where an agency is involved in the child-custody proceeding,	5
active efforts must involve assisting the parent . . . through the steps of	6
a case plan and with accessing or developing the resources necessary to	7
satisfy the case plan. To the maximum extent possible, active efforts	8
should be provided in a manner consistent with the prevailing social	9
and cultural conditions and way of life of the Indian child’s Tribe and	10
should be conducted in partnership with the Indian child and the Indian	11
child’s 	parents, extended 	family 	members, Indian custodians, and	12
Tribe. Active efforts are to be tailored to the facts and circumstances of	13
the case and may include, for example:	14
(1) 	Conducting a comprehensive assessment of the circumstances of	15
the Indian child’s family, with a focus on safe reunification as	16
the most desirable goal;	17
(2) 	Identifying 	appropriate services 	and helping 	the parents 	to	18
overcome barriers, including actively assisting the parents in	19
obtaining such services;	20
. . . .	21
(7) 	Supporting regular visits with parents or Indian custodians in the	22
most natural setting possible as well as trial home visits of the	23
Indian child during any period of removal, consistent with the	24
need to ensure the health, safety, and welfare of the child;	25
(8) 	Identifying community resources including housing, financial,	26
transportation, mental health, substance abuse, and peer support	27
services and actively assisting the Indian child’s parents or, when	28
appropriate, the child’s family, in utilizing and accessing those	29
resources;	30
(9) 	Monitoring progress and participation in services;	31

11
(10) 	Considering alternative ways to address the needs of the Indian	1
child’s 	parents 	and, 	where 	appropriate, 	the 	family, 	if 	the	2
optimum services do not exist or are not available.	3
{21} 	We next apply the standard set out in federal law and regulation to the	4
evidence concerning CYFD’s efforts to assist Father and reunite Children’s family.	5
B. 	The 	Undisputed 	Evidence 	Was 	Insufficient 	to 	Support the District	6
Court’s Finding That CYFD Made “Active Efforts”	7
{22} 	In reviewing the sufficiency of the evidence of CYFD’s efforts, we bear in	8
mind that CYFD was required to prove that it made “active efforts” by evidence	9
beyond a reasonable doubt: “[T]he evidence and inferences drawn from that	10
evidence 	must 	be 	sufficiently 	compelling 	so 	that 	a 	hypothetical 	reasonable	11
fact[-]finder could have reached a subjective state of near certitude” about its	12
conclusion. State v. Maes, 2007-NMCA-089, ¶ 12, 142 N.M. 276, 164 P.3d 975	13
(internal quotation marks and citation omitted). Our standard of review, therefore, is	14
whether, “viewing the evidence in the light most favorable to [CYFD], the fact[-	15
]finder could properly determine that the [beyond a reasonable doubt] standard was	16
met.” In re Termination of Parental Rights of Eventyr J., 1995-NMCA-087, ¶ 3, 120	17
N.M. 463, 902 P.2d 1066. “We review [the district] court’s application of the law to	18
the facts de novo.” State ex rel. Child., Youth & Fams. Dep’t v. Lisa A., 2008-	19
NMCA-087, ¶ 6, 144 N.M. 324, 187 P.3d 189.	20
{23} 	CYFD called only two witnesses to testify about the efforts made to assist	21
Father. Amber Gurule, Father’s CYFD permanency planning worker and Rebecca	22

12
Mathews-Geng, 	a New Mexico 	counseling provider who attempted 	to provide	1
Father an online parenting class. It was undisputed that Father lived outside New	2
Mexico both before and after Children were taken into CYFD custody. Ms. Gurule	3
testified that for the first six months following his adjudication of neglect on April	4
15, 2019, until September or October 2019, Father was difficult to pin down, and	5
CYFD spent time tracking him through Louisiana, Texas, Illinois, and North Dakota.	6
Father was a long-haul truck driver during this period with no permanent residence.	7
Ms. Gurule testified that she contacted the child protective agencies in several	8
different states to obtain referral lists for Father based on Father’s representation that	9
he was living in or planning to move to these states. Drawing all inferences in favor	10
of the district court’s finding of fact, it was reasonable based on this testimony for	11
the district court to conclude that CYFD did what it could to assist Father, and that	12
the failure to do more was excused by Father’s itinerant life and the inference that	13
Father did not stay in one place long enough for CYFD to offer him more substantial	14
assistance.	15
{24} 	In September or October 2019, however, nine months before his parental	16
rights were terminated, Father moved to North Dakota. He informed CYFD that he	17
had obtained a job in the local oil fields and would be living in Bismarck, North	18
Dakota. Despite this change in Father’s circumstances, Ms. Gurule did not describe	19
any greater effort to seek help for Father in obtaining services in North Dakota. She	20

13
reported calling the child protective services agency in North Dakota to obtain a	1
referral list for Father. She referred Father for a psychological evaluation in North	2
Dakota, which Father successfully completed in January 2020. The evaluation’s only	3
recommendation was parenting classes, something already part of Father’s treatment	4
plan. No local class was available, so CYFD offered Father an online parenting class	5
with a New Mexico provider. Father struggled with the computer technology to	6
access that class via an online platform called telehealth and was able to complete	7
only one of twelve sessions. The provider testified, and Father agreed, that he had	8
more difficulty than usual with the access instructions. CYFD tried to help with	9
computer access, but Father continued to struggle and was not able to complete the	10
class. CYFD sent Father the workbooks on anger management, domestic violence,	11
and parenting, usually used when parents are incarcerated, which Father completed.	12
CYFD, however, plainly did not believe that the workbooks were sufficient to satisfy	13
the requirement of Father’s treatment plan that he obtain training in those areas.	14
CYFD made no effort either to evaluate Father’s parenting skills after he completed	15
the workbooks or to find a local consultant in North Dakota who could work with	16
Father in person if he had not made sufficient progress through the workbooks.	17
{25} 	The only other effort CYFD described was arranging two video visits with	18
Children twice a week on Wednesdays and Thursdays. Father visited with Children	19
remotely about twice a week between twenty minutes and one hour. CYFD admitted	20

14
that Father was faithful in initiating calls to CYFD on visiting days and remaining	1
in contact with CYFD throughout the case.	2
{26} 	CYFD contends on appeal that the efforts described were the “affirmative,	3
active, thorough, and timely efforts” required to constitute “active efforts” under	4
ICWA 	to reunite Father and Children. We do not agree. 	The federal ICWA	5
regulations 	specify 	that 	“[a]ctive 	efforts 	are 	to 	be 	tailored 	to 	the 	facts 	and	6
circumstances 	of 	the 	case.” 	25 	C.F.R. 	§ 	23.2. 	“Active 	efforts” 	include 	a	7
“comprehensive 	assessment” 	of Father’s 	circumstances 	and 	needs, 25 	C.F.R.	8
§ 23.2(1), and active assistance in identifying community resources and overcoming	9
barriers to services, given the parent’s circumstances, 25 C.F.R. § 23.2(2), (8). If the	10
parent confronts barriers to services, CYFD is expected to offer alternative ways to	11
meet a parent’s needs, 25 C.F.R. § 23.2(10). CYFD must also monitor and report to	12
the court on a parent’s progress, 25 C.F.R. § 23.2(9).	13
{27} 	The undisputed evidence showed that CYFD (1) had not provided active	14
assistance in obtaining services for Father, (2) had not developed or proposed	15
alternative ways of meeting Father’s need for parenting classes in light of his	16
difficulty with computer technology, (3) had not facilitated in-person visits with	17
Children, (4) had not monitored Father’s progress, (5) provided no assistance to	18
Father in obtaining appropriate housing for him and Children, and (6) did not assess	19
either the home Father ultimately 	found without CYFD assistance prior to the	20

15
termination of his parental rights, or Father’s ability to care for Children in his North	1
Dakota home without creating a likelihood of serious emotional or physical damage	2
to Children. CYFD’s efforts to assist Father in North Dakota, where he lived for	3
eight months before the TPR hearing, were limited to calling that state’s child	4
protective agency to obtain referral lists to give to Father. Merely providing a referral	5
list and instructing the parent to contact the providers and arrange services and	6
provide their own progress reports—the primary effort CYFD made in this case—	7
have been held by both our Supreme Court and this Court to be insufficient to satisfy	8
the “active efforts” requirement of ICWA. See Keon H., 2018-NMSC-033, 	¶ 42	9
(“Active efforts require more than pointing the parent in the right direction, it	10
requires ‘leading the horse to water.’” (alteration, internal quotation marks, and	11
citation omitted)); see also Yodell B., 2016-NMCA-029, ¶ 26 (holding that CYFD	12
pointing the parent in the direction of service providers is not sufficient under	13
ICWA).	14
{28} 	CYFD never made any effort to assess Father’s progress, something which is	15
clearly required by the ICWA regulations defining active efforts. CYFD never	16
requested that a home study be performed by the child protective services agency in	17
North Dakota.6 When Father reported to the district court at a permanency hearing	18
6
Our Legislature has facilitated interstate cooperation in assessing both the
adequacy of housing and the ability to parent when placement of children out of state
is contemplated by adopting the Interstate Compact on the Placement of Children,

16
in December 2019, six months before the TPR hearing, that Father had found a social	1
services worker in North Dakota who had agreed to assist him and asked how he	2
should proceed, the court directed him to connect this person to Ms. Gurule, rather	3
than directing CYFD to make contact through North Dakota’s child protection	4
agency. Once again, Father was left to develop his own resources. This Court has	5
held that when “‘the client must develop his or her own resources’” to bring a case	6
plan to fruition, the agency has not made active efforts. Yodell B., 2016-NMCA- 029,	7
¶ 17 (quoting A.A. v. State, Dep’t of Fam. & Youth Servs., 982 P.2d 256, 261 (Alaska	8
1999)). By CYFD’s own admission, that is what was expected of Father.	9
{29} 	To the extent counsel for CYFD suggests that it is excused from making active	10
efforts to assist Father because he was not living in New Mexico, it misapprehends	11
the law. Living in another state does not excuse CYFD’s failure to follow both	12
federal and New Mexico law in a termination of parental rights proceeding any more	13
than it excuses CYFD from assisting a parent who is living in another country. See	14
State ex rel. Child., Youth & Fams. Dep’t v. Alfonso M.-E., 2016-NMCA-021, ¶ 64,	15
366 P.3d 282 (holding that “New Mexico law does not relieve CYFD of its statutory	16
mandate to make reasonable efforts to assist the parent in adjusting the causes and	17
conditions of neglect simply because the parent has been deported to another	18
NMSA 1978, §§ 32A-11-1 to -7 (1977, as amended through 1993). CYFD never
sought the assistance of Louisiana or North Dakota in assessing Father’s home, his
needs, or his progress.

17
country”). Where the parent remains in contact with CYFD, participates in their	1
treatment plan, and indicates a desire to reunite with their children, as Father did in	2
this case, the burden remains on CYFD to meet statutory requirements.7 See id.	3
{30} 	We conclude that the undisputed evidence presented by CYFD of the efforts	4
made to reunite Father and Children is not sufficient to reasonably support the	5
district court’s finding that CYFD made the “active efforts” to provide Father with	6
remedial services and rehabilitative programs designed to prevent the breakup of the	7
family, as required by 25 U.S.C. § 1912(d).	8
CONCLUSION	9
{31} 	For the stated reasons, we reverse the termination of Father’s parental rights.	10
We remand to the district court with direction to require CYFD to promptly assess	11
both Father’s home and his ability to care for Children without a likelihood of serious	12
emotional or physical damage to Children and to initiate active efforts to transition	13
Children to Father’s care. If after good faith, active efforts are made to transition	14
Children to Father’s custody, it becomes apparent that return to Father’s custody	15
would likely result in serious emotional or physical damage to Children, CYFD is	16
7 We notice a significant difference between the active efforts made with
Children’s mother, who is a tribal member, and with Father, who is not. CYFD is
required by ICWA to make “active efforts” to reunite an Indian child with that
child’s family. The “active efforts” requirement is not limited to the Indian parent.
25 U.S.C. § 1912(d); 25 C.F.R. § 23.2 (“Active efforts means affirmative, active,
thorough, and timely efforts intended primarily to maintain or reunite an Indian child
with his or her family.”).

18
not foreclosed from pursuing a second motion to terminate parental rights. See State	1
ex rel. Child. Youth & Fams. Dep’t v. William C., 2017-NMCA-058, ¶ 25, 400 P.3d	2
266 (following reversal of an order terminating parental rights, CYFD is permitted	3
to file a second motion relying on the existing adjudication of neglect or abuse, as	4
well as on new evidence).	5
{32} 	IT IS SO ORDERED.	6
_____________________________	7
JANE B. YOHALEM, Judge	8
WE CONCUR:	9
_________________________________	10
KRISTINA BOGARDUS, Judge	11
_________________________________	12
GERALD E. BACA, Judge	13