June 22, 2015 – State of New Mexico ex rel. Children, Youth & Families Department v. Casey J. and In the Matter of Tichelle J., Raziel, J. and Caleb J., NO. 33,409

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: JUNE 22, 2015

NO. 33,409
STATE OF NEW MEXICO, ex rel.,
CHILDREN, YOUTH AND FAMILIES
DEPARTMENT,

Petitioner Appellee,
V.
CASEY J.,

Respondent- Appellant,

IN THE MATTER OF TICHELLE J.,
RAZIEL J., and CALEBJ.,

Children.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
William E. Parnall, District Judge

Children, Y outh & Families Department

Charles E. Neelley, Jr., Chief Children’s Court Attomey
Rebecca J. Liggett, Assistant Children’s Court Attomey
Santa Fe, NM

for Appellee

Casey Jim
Farmington, NM

Pro Se Appellant

W. Karen Cantrell
Placitas, NM

Guardian Ad Litem

OPINION
ZAMORA, Judge.
{1} 	Casey J. (Father) appeals the termination of his parental rights to T.J., R.J., and
C.J. (Children) not for purposes of restoring his parental rights in the Children, but
rather to require the Children, Youth and Families Department (the Department) to
place Children with a specific relative, or alternatively any interested relative. Father
argues that the Department failed to comply with New Mexico’s Abuse and Neglect
Act, NMSA 1978, §§ 32A-4-1 to -34 (1993, as amended through 2014), and the
federal Indian Child Welfare Act (the ICWA), 25 U.S.C. §§ 1901 to 1963 (2013), with
regard to the placement of Children. Father also argues that he was denied due process
as well as a fair and impartial termination proceeding. We hold that the Department’s
placement of Children complied with the state and federal requirements. As to the
termination proceedings, we hold that Father was afforded due process, and was not
deprived of fair and impartial proceedings. Accordingly, we affirm.
BACKGROUND
{2} 	The Department filed a neglect/abuse petition against Father and Andrea T.
(Mother) regarding Children. The Department took Children into custody in February
2011 due to ongoing concerns related to each parent’s issues with substance abuse and
domestic violence. At the time Children were taken into custody, Father was

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incarcerated. The district court held a custody hearing on March 1, 2011. The district
court found that the ICWA applied because Father, Mother, and Children are all
registered members of the Navajo Nation.
{3} 	At the adjudicatory/dispositional hearing on April 6, 2011, both Father and
Mother entered pleas of no contest to the allegations in the neglect/abuse petition,
pursuant to Section 32A-4-2(E)(2). The court adopted treatment plans for both
parents, designed to address the domestic violence and substance abuse issues. The
treatment plans also required supervised visitation and regular communication with
the Department.
{4} 	Father was incarcerated sporadically throughout the pendency of the case.
Father attended most of the monthly meetings with the Department permanency
planning worker when he was not incarcerated, but did not complete parenting
training, domestic violence or substance abuse counseling, and was twice discharged
for noncompliance. Father was inconsistent in his visits with Children and his last visit
with Children was June 29, 2012. After the June 29, 2012 visit, Father called for a few
weeks with excuses for missing visits and after that the Department permanency
planning worker did not hear from Father again.
{5} 	On January 31, 2013, the Department filed a motion for termination of parental
rights of Mother and Father, both members of the Navajo Nation. On April 24, 2013,

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Mother voluntarily relinquished her parental rights. The case proceeded to trial. Father
was present, but did not challenge the evidence that he had failed to participate in his
treatment plan and that he had abandoned Children. Father did challenge the
compliance of Children’s foster placements with the requirements of the ICWA.
However, Father argued that the Department’s failure to place Children according to
the ICWA’s placement preferences constituted a failure to make active efforts to
prevent the breakup of the Indian family, as required by the ICWA.
{6} 	At the conclusion of the termination of parental rights trial, the district court
announced its decision indicating it was granting the Department’s motion to
terminate Father’s parental rights. Father filed a motion for reconsideration, which
was heard on August 1, 2013. On October 29, 2013, the district court entered a
judgment terminating Father’s parental rights to Children. This appeal followed.
DISCUSSION
{7} 	Father makes a number of arguments in support of reversal for purposes of
mandating a relative placement for Children and not the restoration of his parental
rights. The majority of these arguments relate to the fact that Children were never
placed in foster care with relatives, members of the Navajo Nation, or other Indian
families. Father argues that the Department failed to make active efforts to prevent the
breakup of the Indian family and to comply with the relative placement preferences

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under the ICWA and the New Mexico Abuse and Neglect Act. Father also contends
that in the absence of full compliance with the placement preferences, he was denied
due process of law.
{8} 	To the extent that any of Father’s claims relate to the current placement of
Children, we decline to address them. Father may not challenge the placement of
Children after the termination. See § 32A-4-29(L) (“A judgment of the court
terminating parental rights divests the parent of all legal rights and privileges.”).
Accordingly, our analysis of Father’s claims is limited to the foster care placement of
Children prior to the termination of Father’s parental rights.
Children’s Placement Under the ICWA and the New Mexico Abuse and Neglect
Act
{9} 	Interpretation of the ICWA and the New Mexico Abuse and Neglect Act
presents questions of law that we review de novo. State ex rel. Children, Youth &
Families Dep’t v. Marsalee P., 2013-NMCA-062, ¶ 12, 302 P.3d 761. “[The] ICWA
is a remedial statute in that it was enacted to stem the alarmingly high percentage of
Indian 	families 	being 	separated 	by 	removal 	of 	children 	through 	custody
proceedings[,]” and we therefore construe it liberally in order to effectuate its purpose.
State ex rel. Children, Youth & Families Dep’t v. Marlene C., 2011-NMSC-005, ¶ 17,
149 N.M. 315, 248 P.3d 863 (internal quotation marks and citation omitted).

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{10} 	The ICWA was enacted to address the consequences of abusive child welfare
practices that separated Indian children from their families and tribes through adoption
or foster care placement, usually in non-Indian homes. Miss. Band of Choctaw Indians
v. Holyfield, 490 U.S. 30, 32-33 (1989). The stated purpose of the ICWA is
to protect the best interests of Indian children and to promote the stability
and security of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children from their
families and the placement of such children in foster or adoptive homes
which will reflect the unique values of Indian culture, and by providing
for assistance to Indian tribes in the operation of child and family service
programs.
25 U.S.C. § 1902. The overarching concern of Congress and the proponents of the
ICWA, was the maintenance of the family and tribal relationships existing in Indian
homes. Holyfield, 490 U.S. at 37.
One of the most serious failings of the present system is that Indian
children are removed from the custody of their natural parents by
nontribal government authorities who have no basis for intelligently
evaluating the cultural and social premises underlying Indian home life
and childrearing. Many of the individuals who decide the fate of our
children are at best ignorant of our cultural values, and at worst
contemptful of the Indian way and convinced that removal, usually to a
non-Indian household or institution, can only benefit an Indian child.
Id. at 34-35 (internal quotation marks and citation omitted). At the core of the ICWA
is the tribal interest in the impact that the large numbers of adoptions of Indian
children by non-Indians have on the tribes themselves. Id. at 49-52. The ICWA
“recognizes that the tribe has an interest in the child which is distinct from but on a

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parity with the interest of the parents.” Id. at 52 (internal quotation marks and citation
omitted).
{11} 	The 	ICWA 	establishes 	federal 	standards 	for 	state-court 	child 	custody
proceedings involving Indian children. Id. at 36-37. As relevant here, the ICWA
conditions involuntary termination of parental rights with respect to Indian children
on a showing that active efforts have been made to prevent the “breakup of the Indian
family,” 25 U.S.C. § 1912(d); and provides preferences for the foster care placement
of Indian children with a member of the Indian child’s extended family; a foster care
home licensed, approved and specified by the Indian child’s tribe; an Indian foster
care home licensed or approved by an authorized non-Indian licensing authority; or
an institution for children approved by the Indian child’s tribe or operated by an
Indian organization that has a program suitable to meet the Indian child’s needs.
25 U.S.C. § 1915(b). The New Mexico Abuse and Neglect Act has incorporated the
ICWA’s placement preferences. See NMSA 1978, § 32A-4-9(A) (1993).

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Active Efforts Designed to Prevent the Breakup of the Indian Family
{12} 	Father contends that the Department did not make active efforts to prevent the
breakup of his family because Children were not placed with relatives and because
Children were not always placed together in one foster home. We understand the basis
of Father’s argument to be the requirements for preservation of the Indian family as
set forth in 25 U.S.C. § 1912(d).
{13} 	Section 1912(d) of the ICWA provides that a party seeking to terminate parental
rights to an Indian child under state 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.” Adoptive Couple v. Baby Girl, ___U.S. ___, ___,133 S. Ct. 2552, 2562
(2013) (emphasis, internal quotation marks and citation omitted). Efforts to provide
remedial services under this section are intended to “alleviate the need to remove the
Indian child from his or her parents or Indian custodians.” Id. at 2563 (internal
quotation marks and citation omitted).
{14} 	Section 1912(d) of the ICWA should be read in harmony with Ҥ 1912(e) and
§ 1912(f), both of which condition the outcome of proceedings on the merits of an
Indian child’s ‘continued custody’ with his parent.” Adoptive Couple, 133 S. Ct. at
2563. Thus, 25 U.S.C. § 1912(d) requires that Indian parents be “provided with access

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to remedial services and rehabilitative programs . . . so that their custody might be
continued in a way that avoids foster-care placement under § 1912(e) or termination
of parental rights under § 1912(f).” Adoptive Couple, 133 S. Ct. at 2563 (internal
quotation marks omitted). “[T]he provision of remedial services and rehabilitative
programs under § 1912(d) supports the continued custody that is protected by §
1912(e) and § 1912(f).” Adoptive Couple, 133 S. Ct. at 2563 (internal quotation marks
omitted). It does not apply to facilitate the placement of the child in compliance with
the placement preferences listed in § 1915. Adoptive Couple, 133 S. Ct. at 2558.
{15} 	Here, Father’s argument is focused on Children’s foster placements throughout
the case, not on the Department’s efforts to prevent a disruption in custody or parental
rights as contemplated by 25 U.S.C. § 1915(d). Father does not address the
Department’s efforts to provide him with remedial services and rehabilitative
programs prior to the removal of Children from the home, or the Department’s efforts
to engage him in such services and programs through his treatment plan. As a result,
whether the Department made active efforts to prevent the breakup of the Indian
family, as required by 25 U.S.C. § 1912(d), is not an issue in this appeal. See In re
Doe, 1982-NMSC-099, ¶ 3, 98 N.M. 540, 650 P.2d 824 (recognizing that appellate
courts should not reach issues not raised by the parties). Our relevant inquiry is

9
whether the ICWA placement preferences were followed, and if not, whether good
cause existed to deviate from them.
The ICWA Placement Preferences
{16} 	The ICWA and the New Mexico Abuse and Neglect Act specify that, absent
good cause to the contrary, foster care placement shall be with: “[(1)] a member of the
Indian child’s extended family; [(2)] a foster home licensed, approved, or specified
by the Indian child’s tribe; [(3)] an Indian foster home licensed or approved by an
authorized non-Indian licensing authority; or [(4)] an institution for [the] children
approved by an Indian tribe or operated by an Indian organization which has a
program suitable to meet the Indian child’s needs.” See 25 U.S.C. § 1915(b); Section
32A-4-9(A). The party seeking to deviate from the placement preferences bears the
burden of establishing the existence of good cause to do so. Bureau of Indian Affairs,
Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584,
67594 (Nov. 26, 1979). In determining whether good cause exists for deviating from
the placement preferences, a court is required to examine the reasons for deviation in
light of “the prevailing social and cultural standards of the Indian community.”
25 U.S.C. § 1915(d). The recently issued Bureau of Indian Affairs Guidelines (BIA
Guidelines) recognize that any party may raise the issue of whether good cause not to

10
follow the ICWA placement preferences exists. 80 Fed. Reg. 10150, § F(4) (February
25, 2015).
{17} 	In this case, the district court found that good cause to deviate from the ICWA
placement preferences existed, beyond a reasonable doubt. This standard applies to
termination of parental rights under the ICWA. See 25 U.S.C. § 1912(f) (“No
termination of parental rights may be ordered in such proceeding in the absence of a
determination, supported by evidence beyond a reasonable doubt including testimony
of qualified expert witnesses, that the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or physical damage to the
child.”). However, neither 25 U.S.C. § 1915(b) nor Section 32A-4-9(A) of the Abuse
and Neglect Act identify a standard of proof for the good cause exception to the
placement preferences identified in the statute. We are also unaware of any New
Mexico case law that has established a standard as it relates to the good cause
exception. We need not decide on a standard for two reasons. First, the issue is not
squarely before us as neither party has raised the issue. See In re Doe, 1982-NMSC-
099, ¶ 3 (recognizing that appellate courts should not reach issues not raised by the
parties). Second, under the facts of this case, we conclude that the district court’s
findings of good cause to deviate from the ICWA placement preferences are

11
appropriate whether the burden of proof was preponderance of the evidence, clear and
convincing, or beyond a reasonable doubt.
Deviation From The Placement Preferences Was Supported by Good Cause
{18} 	Father argues that the district court’s determination that good cause existed to
deviate from the ICWA placement preferences was not supported by the evidence.
The ICWA does not define “good cause.” However, the BIA Guidelines for state
courts to use in Indian child custody proceedings provide that a determination of good
cause not to follow the placement preferences should be based on one or more of the
following considerations: a “request of the biological parents or the child when the
child is of sufficient age”; the “extraordinary physical or emotional needs of the child
as established by testimony of a qualified expert witness”; and the “unavailability of
suitable families for placement after a diligent search has been completed for families
meeting the preference criteria.” Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. at 67,594.
{19} 	There are some courts that limit their good cause analysis to the considerations
listed in the BIA Guidelines. See In re Custody of S.E.G., 521 N.W.2d 357, 362
(Minn. 1994) (stating that simply applying the best interests standard is contrary to the
plain language of the ICWA read as a whole, and to its legislative history); see also
In re Adoption of Riffle, 922 P.2d 510, 514 (Mont. 1996) (deciding it is improper to

12
apply best interest when determining good cause because the ICWA expresses
presumption that it is in the Indian child’s best interest to be placed in conformance
with the preferences).
{20} 	Other courts have held that the considerations listed in the BIA Guidelines are
not exhaustive. See In re Adoption of M., 832 P.2d 518, 522 (Wash. Ct. App. 1992)
(“Good cause is a matter of discretion, and discretion must be exercised in light of
many factors. These include but are not necessarily limited to the best interests of the
child, the wishes of the biological parents, the suitability of persons preferred for
placement, the child’s ties to the tribe, and the child’s ability to make any cultural
adjustments necessitated by a particular placement.” (citations omitted)); see also In
re Adoption of F.H., 851 P.2d 1361, 1363-64 (Alaska 1993) (“Whether there is good
cause to deviate in a particular case depends on many factors including, but not
necessarily limited to, the best interests of the child, the wishes of the biological
parents, the suitability of persons preferred for placement and the child’s ties to the
tribe.”).
{21} 	NMSA 1978, § 32A-1-3(A), (B) (2009) provide, in pertinent part, that the
Children’s Code shall be interpreted and construed to effectuate the following
legislative purposes:
A. 	[F]irst to provide for the care, protection and wholesome mental
and physical development of children coming within the provisions of

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the Children’s Code and then to preserve the unity of the family
whenever possible. A child’s health and safety shall be the paramount
concern. Permanent separation of a child from the child’s family,
however, would especially be considered when the child or another child
of the parent has suffered permanent or severe injury or repeated abuse.
It is the intent of the [L]egislature that, to the maximum extent possible,
children in New Mexico shall be reared as members of a family unit;
B. 	[T]o provide judicial and other procedures through which the
provisions of the Children’s Code are executed and enforced and in
which the parties are assured a fair hearing and their constitutional and
other legal rights are recognized and enforced[.]
(Emphasis added.) Thus, in determining the existence of good cause to deviate from
the ICWA placement preferences, the court must give primary consideration to the
children’s best interests, but must ensure that the constitutional and other legal rights
of all the parties are considered.
{22} 	We recognize that parents have a “fundamental liberty interest in the care,
custody, and management of their children.” State ex rel. Children, Youth & Families
Dep’t v. Amanda M., 2006-NMCA-133, ¶ 18, 140 N.M. 578, 144 P.3d 137. Parents
also have a right to pursue familial relationships with their children. See Roberts v.
U.S. Jaycees, 468 U.S. 609, 618-20 (1984) (holding that familial associations are
included in the fundamental right to freedom of association); see also Lucero v.
Salazar, 1994-NMCA-066, ¶¶ 6-9, 117 N.M. 803, 877 P.2d 1106 (recognizing the
fundamental right of familial association or right to intimate familial relationship).

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As discussed above, the Indian tribe has an interest in Indian children that is in parity
with that of the parents. Holyfield, 490 U.S. at 52.
{23} 	However, it is well established that these rights are not absolute; rather, they
must yield to the “best interests and welfare of the children.” State ex rel. Children,
Youth & Families Dep’t v. John R., 2009-NMCA-025, ¶ 27, 145 N.M. 636, 203 P.3d
167 (internal quotation marks and citation omitted). In assessing the children’s best
interests, it is imperative that the children are recognized as people who have
fundamental interests of their own that are constitutionally protected. See In re Gault,
387 U.S. 1, 13, (1967) (holding that the Fourteenth Amendment and the Bill of Rights
apply to children.); see also In re Guardianship of Victoria R., 2009-NMCA-007,
¶ 11, 145 N.M. 500, 201 P.3d 169 (stating that a child is a person for purposes of the
Fourteenth Amendment). The children have the fundamental right to be protected
from abuse and neglect, and to have a permanent and stable placement. Id. They “are
not simply chattels belonging to the parent, but have fundamental interests of their
own that may diverge from the interests of the parent.” Id. (internal quotation marks
and citation omitted).
Standard of Review for Good Cause Determinations
{24} 	The determination of good cause to deviate from the ICWA placement
preferences is a legal standard. See Dep’t of Human Servs. v. Three Affiliated Tribes

15
of Fort Berthold Reservation, 238 P.3d 40, 50 (Or. Ct. App. 2010). Accordingly, “we
must determine whether the facts, as found by the trial court and as supported by
evidence in the record, are legally sufficient to establish ‘good cause’ to depart from
[the] ICWA’s placement preferences.” Id. “On appeal, this Court does not re-weigh
the evidence, rather, we view the evidence in the light most favorable to the prevailing
party.” State ex rel. Children, Youth & Families Dep’t v. Jerry K., 2015-NMCA-047,
¶ 24, ___P.3d___. “Our overarching goal when interpreting the ICWA is to effectuate
Congress’s intent.” Marlene C., 2011-NMSC-005, ¶ 15.
The District Court’s Findings of Good Cause
{25} 	The district court heard evidence related to Children’s placement at the
adjudicatory/dispositional hearing, the initial judicial review hearing, five permanency
hearings, the termination of parental rights trial, and the hearing on Father’s motion
to reconsider. The district court consistently found that good cause existed to deviate
from the ICWA’ s placement preferences.
The Adjudication and the Initial Judicial Review
{26} 	The adjudicatory/dispositional hearing was held on April 6, 2011. The ICWA
qualified expert witness (QEW) working for the Navajo Nation Children and Family
Services testified that she was aware of Children’s current placements and that the
placements did not meet the ICWA placement preferences, but that good cause existed

16
to deviate from the preferences. The district court found that the ICWA placement
preferences had not been followed because the Department had been unable to find
an ICWA approved home, and that the Department was working with the Navajo
Nation to determine an appropriate relative placement.
{27} 	The testimony of the QEW, that good cause existed to deviate from the ICWA
placement preferences, was sufficient to meet any standard. Under the ICWA, no
foster care placement for an Indian child may be ordered “in the absence of a
determination, supported by clear and convincing evidence, including testimony of
qualified expert witnesses, that the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or physical damage to the
child.” § 1912 (e). The best interests of Indian children will often be directly linked
to their tribal culture. Guidelines for State Courts; Indian Child Custody Proceedings,
44 Fed. Reg. at 67593. The purpose of the QEW is to provide testimony related to the
Indian child’s best interests from the perspective of someone with expert knowledge
of tribal culture and childrearing practices. Id.
{28} 	In this case, the QEW was a social worker for the Navajo Nation Children and
Family Services who had been employed with the Navajo Nation for over a year-and-
a-half, and who was knowledgeable about the provisions of the ICWA. The QEW
explained that she was knowledgeable about the practices and traditions of the Navajo
Nation as a registered member of the tribe and as an active participant in the Navajo

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practices and traditions. The district court did not err in relying on her testimony that,
at the time of the adjudicatory/dispositional hearing, good cause existed to deviate
from the ICWA placement preferences.
{29} 	On June 3, 2011, the district court held an initial judicial review hearing.
Information was presented that the Department was not able to find a placement for
Children together. Children were placed in two separate foster homes and were
visiting with each other. The Department was working with Mother, Father, and the
Navajo Nation to determine an appropriate placement. The QEW testified that the
Department was looking at two relatives, who did not live on the reservation, for
possible placement. The Department permanency planning worker explained that three
relatives had come forward: (1) a member of the Zia Pueblo, but the Zia Pueblo would
not allow the Department to conduct a home study because Children were not Zia
members; (2) Children’s paternal uncle who withdrew for health reasons; and (3) a
paternal aunt, Bernice Strait (Aunt), for whom the Department was working on
approval to go forward with the home study process.
{30} 	The district court encouraged the Department and the QEW to stay in touch and
work out a suitable placement. The QEW did not identify any special needs of
Children, and stated her approval of Children’s placement. The district court found
that, at that time, there was good cause not to follow the ICWA placement
preferences.

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{31} 	In light of the Department’s efforts to find relative placements for Children, the
unavailability of ICWA-compliant placements, and the QEW’s approval and statement
of good cause, we conclude that the district court did not err in determining that good
cause existed to deviate from the ICWA placement preferences at the time of the
initial judicial review.
The Permanency Hearings
{32} 	The initial permanency hearing was held on November 30, 2011. The
Department reported that it was continuing to look for a placement that met the ICWA
placement preferences and was working with the Navajo Nation to identify an
appropriate relative. The Guardian Ad Litem (GAL) testified that Children were doing
well in their respective foster homes, but that when there was visitation, there was
some troublesome sibling interaction that may need to be dealt with therapeutically.
{33} 	The CASA volunteer, who was a member of the Navajo Nation, reported that
she was helping to foster Children’s cultural connections. She stated that she was able
to provide Children with traditional outfits including jewelry and moccasins, and that
she was helping out with T.J.’s coming of age ceremony, which was a big part of T.J’s
life. The Department indicated that Aunt had a good relationship with Children, and
that she had been very supportive and had been visiting them. The Department also
reported that Aunt had provided traditional items for Children to wear on feast days,
which was very meaningful to Children.

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{34} 	A new social worker from the Navajo Nation, also admitted as a QEW, had
been assigned to the case. She requested that Mother and Father provide names of
relatives on the reservation for consideration as potential placements for Children.
Mother and Father were present and both indicated that they wanted Children to be
placed with Aunt. The Department explained that a home study was started with Aunt,
but that Aunt had withdrawn from consideration because she was caring for her
mother. However, at the time of the hearing, Aunt was again expressing an interest in
having Children placed with her and the Department was pursuing that placement. The
court stated its support for pursuing and finalizing placement of Children with Aunt.
The Navajo Nation did not object to Aunt as a possible placement.
{35} 	In its first permanency hearing order, the district court found that the ICWA
placement preferences were not being followed because the Department had been
unable to locate an ICWA approved home. However, the court also found that the
Department was working with the Navajo Nation to determine an appropriate relative
placement, and that the Department was working with the Navajo Nation and the
family to preserve and maintain Children’s cultural connection. The evidence
presented at the first permanency hearing showed that the Department was actively
pursuing relative placement options for Children, and that placement in accordance
with the ICWA had not yet been possible due to the unwillingness or unavailability
of relative placements. The Department also showed that it was making efforts toward

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addressing the special needs of Children and promoting their connections with their
heritage. Father’s request, that Aunt be considered as a placement option, was being
actively pursued by the Department. We conclude that the district court did not err in
finding there was good cause to deviate from the ICWA placement preferences at the
first permanency hearing.
{36} 	A second permanency hearing was held on February 22, 2012. Father was not
present. Father’s attorney could not reach Father and did not know his location. At the
February 2012 hearing, it was reported that Children were doing relatively well in
their current placements. R.J. and C.J. were receiving speech and language therapy.
No other special needs were identified.
{37} 	It was also reported that Aunt had again withdrawn from the home study
process and the Department had been actively trying to find other relatives. The
permanency planning worker stated that she had requested names of relatives from
Father, Mother, and Aunt, and had even asked Children if there were relatives that
they would like to see more often. The relatives that had been considered for
placement at the time of the hearing had been ineligible due to their backgrounds.
{38} 	When asked, the QEW indicated that she did not believe there was ever good
cause to deviate from the ICWA placement preferences, but that she understood that
the Department could not find Navajo or Native American foster homes for Children.
The Department indicated that it would accept help from the Navajo Nation in

21
locating potential relative or Navajo placements for Children. The district court asked
the Navajo Nation to assist the Department in finding a suitable ICWA placement. The
district court found that good cause existed to deviate from the ICWA placement
preferences, and encouraged the Navajo Nation and the Department to work together
in finding a suitable, ICWA-compliant placement for Children.
{39} 	The evidence presented at the second permanency hearing showed the
unavailability of suitable relatives, Navajo, or other Native American placements. The
absence of appropriate ICWA approved placements, along with the continued efforts
by the Department and the Navajo Nation, constituted good cause to deviate from the
ICWA placement preferences. Additionally, there was no indication by the GAL or
the Navajo Nation that Children’s needs were not being met in their placements at that
time. We conclude the district court did not err in finding good cause to deviate from
the placement preferences at the second permanency hearing.
{40} 	A third permanency hearing was held on August 20, 2012. Father was not
present and his attorney was unable to contact or locate him. The Department reported
that Children were all placed together in a new foster placement. The new placement
was not an adoptive home for Children and the Department indicated that it wanted
to get Children free for adoption so that the Department could start the adoption
recruitment effort. The GAL reported that Children were doing well in the new
placement where they were all together. She also stated Children were involved in

22
therapy and with cultural activities through the Native American Community
Academy (NACA), where T.J. attended school.
{41} 	The Department reported that it had located some paternal relatives that were
willing to be considered for placement, but they had withdrawn from the home study
process because it was too invasive. The permanency planning worker then explained
that several relatives had been located for possible placement but that none wanted to
step forward because they were fearful of Father and Mother. She also explained that
the Department had considered Aunt as a placement three times, and Father’s brother
had also indicated that he would be a placement option, but twice withdrew. The
Department also informed the court that it had maintained contact with Aunt and that
Aunt had provided the name of a third cousin that the Department could contact
regarding placement. The Department had also asked Aunt to look into clan members
that may provide potential placements.
{42} 	The Department asked for assistance from the Navajo Nation in locating
potential Navajo placements. The QEW indicated that she still needed to rule out any
proposed placements by their adoption unit and requested a photograph and profile
of Children so that a request for certified homes to consider placement of Children
could be made.
{43} 	The district court found that the ICWA placement preferences had not been
followed; however, “good cause exist[ed] for deviating from the . . . placement

23
preferences because no relative, no Navajo, and no Indian homes [had] been identified
and approved for placement.” The court further found that the “Department [was,]
through its treatment plan, . . . ensuring that [C]hildren’s cultural ties [were] being
protected and fostered.”
{44} 	The Department’s inability to place Children in compliance with the ICWA
placement preferences stemmed primarily from the unavailability of suitable families
for placement. There was no testimony to indicate Children had special needs that
were unmet in their current placement. We also note that there was no objection to the
placement by the parents or the Navajo Nation. We conclude that the district court
appropriately found that there was good cause to deviate from the placement
preferences at the third permanency hearing.
{45} 	On February 19, 2013, a fourth permanency hearing was held. Father was not
present and his attorney was unable to locate him. At that hearing, the Department
reported that R.J. and C.J. had been placed in treatment foster care because they
needed a higher level of care. The Department also indicated that it had been
unsuccessful in finding and qualifying a suitable relative or Native American
placement for Children. The GAL reported that R.J. and C.J. had experienced
significant and troubling behaviors that necessitated their transition to a treatment
foster care facility. She informed the court that T.J. remained placed in her original

24
foster home and that she was doing well in that placement and at school where her
cultural ties were being protected and fostered.
{46} 	The district court asked the QEW what the Navajo Nation’s position was on the
efforts of the Department and on whether good cause existed to deviate from the
ICWA placement preferences. The QEW stated that the Navajo Nation supported the
Department’s efforts to find permanency for Children; however, the Navajo Nation
was still looking for possible relative placements on the reservation, and that a referral
had been made to the Navajo Nation’s adoption unit. The Navajo Nation had given
approval for the Department to conduct a nationwide search for an ICWA preferred
home suitable for permanent placement.
{47} 	The district court found that the Department had made active efforts to comply
with the ICWA placement preferences, that the Department had proven beyond a
reasonable doubt that good cause existed to deviate from the preferences, and that the
Navajo 	Nation 	concurred 	with 	the 	placement 	under 	the 	circumstances. 	The
Department’s inability to place Children in compliance with the ICWA placement
preferences stemmed primarily from the unavailability of suitable families for
placement. There was no testimony to indicate Children had special needs that were
unmet in their current placement. We also note that there was no objection to the
placement by the parents or the Navajo Nation. We conclude that the district court

25
appropriately found that there was good cause to deviate from the placement
preferences at the fourth permanency hearing.
The Termination of Parental Rights Trial
{48} 	The termination of parental rights trial was held over three days: April 1, 2013,
April 24, 2013, and May 17, 2013. On April 24, 2013, Mother relinquished her
parental rights and the trial proceeded as to Father’s rights. At the trial, the
Department permanency planning worker reported that T.J. was thriving in the home
where she was placed, that she was excelling in school and was involved in
extracurricular activities, but that R.J. and C.J. were experiencing behavioral
difficulties and had been placed in treatment foster care. The permanency planning
worker also reported that Children were maintaining their cultural ties, T.J. was
attending NACA and was involved in their dance club, and the treatment foster
parents were reading books to R.J. and C.J. to help them learn about their culture.
{49} 	The permanency planning worker testified that she had maintained contact with
the Navajo Nation with regard to Children’s placements. She stated that the
Department had continued its efforts to identify and locate suitable homes for
placement, but that the relatives who had been identified as of the date of the
termination hearings had been unwilling or unable to provide a suitable placement for
Children. She explained that home studies had been initiated with relatives; however,
the relatives had withdrawn from the process. The permanency planning worker

26
reported that no Navajo or other Native American placements had been identified but
that the Department was continuing to work with the Navajo Nation to locate other
relatives or potential placements.
{50} 	A Department employee, who assisted Aunt during the home study process,
testified about the Department’s attempts to license Aunt as a foster placement for
Children. In June 2011 Aunt contacted the Department to be considered as a potential
placement. Aunt completed the Relative, Adoptive, Foster Parent Training (RAFT),
a four day training class required for foster placement licensing. The Department
requires foster parents and members of foster families over the age of seventeen to
complete RAFT training as part of the home study process. The Department initiated
a home study; however, Aunt’s mother became very ill and Aunt withdrew from the
process in August 2011. At that time interviews with family members, which were
needed to complete the home study, had not been conducted.
{51} 	Aunt contacted the Department again in December 2011 and the Department
started the home study process again. In February 2012, Aunt’s mother was
hospitalized and Aunt withdrew from consideration as a placement for Children in
order to care for her. In November 2012, Aunt contacted the Department and asked
to be considered a third time. The Department advised Aunt that her son would be
interviewed and required to participate in the RAFT training. Aunt informed the
Department that her son would not cooperate.

27
{52} 	On November 26, 2012, the Department sent Aunt a letter advising that the
requested interviews and RAFT training were required by policy, and requested that
Aunt contact the Department by December 3, 2012, to confirm her son’s participation
and avoid Aunt being withdrawn from consideration a third time. Aunt called the
Department and stated that her son would attend RAFT training scheduled for
December 1, 2012; however, her son did not attend the training. Aunt later reported
to the Department that her son would not cooperate either with an interview or with
the training. The Department informed Aunt that it would have to withdraw Aunt from
consideration again.
{53} 	The Department’s home study worker explained that the purpose of the home
study is to make sure that Children are placed in a safe home and that the people in the
home are able to handle Children’s behaviors and provide a safe and nurturing
environment. She stated that the son’s participation was a critical part of the home
study because he would share a room with R.J. and C.J., who had been traumatized,
and the son needed to know how to interact with Children efficiently and helpfully.
According to the home study worker, the son had not lived with small children in the
home before and the Department wanted to equip him with skills that would help him
interact with Children.
{54} 	Aunt was present and testified at the termination trial. She stated that when she
withdrew from consideration the third time, interviews with the members of her

28
household had not yet been completed, there had not been a report from her son’s
school, and she had not provided the Department with copies of her income tax
documents as requested. However, Aunt indicated that she was still willing to provide
a home for Children and that her son was now willing to take the required classes.
{55} 	The QEW also testified at the termination trial. She stated that the Navajo
Nation was in support of the termination of parental rights because Father had not
been able to complete his service plan and had not demonstrated that he was able to
parent Children without substance abuse or domestic violence, neither of which was
acceptable in the Navajo culture. The QEW testified that returning Children to Father
would result in serious emotional or physical harm to Children and that Children, who
had been in custody for about two years, needed permanency.
{56} 	As to Children’s placement, the QEW reported that the Department conferred
with the Navajo Nation when it was changing Children’s temporary placement, and
that the Navajo Nation approved Children’s temporary placements because the
Department did not have an ICWA-compliant placement. The QEW testified that she
was aware of the Department’s efforts to qualify Aunt as a relative placement for
Children. It was her understanding that the last time Aunt was being considered as a
relative placement, she did not want to take all three Children, only T.J. She also
reported that the Navajo Nation attempted to find a family for placement, but that

29
possible placements were too far from Father and Mother to allow them to maintain
a parent-child relationship with Children.
{57} 	The QEW further testified that the Department had made active efforts to locate
other Navajo and other Native American families for temporary placement, and that
the Navajo Nation believed that there was good cause to deviate from the ICWA
preferences for Children’s temporary placements. She also reported that the Navajo
Nation had given approval to open up a nationwide search for an ICWA preferred
home suitable for permanent placement.
{58} 	The district court announced that it would grant the Department’s motion to
terminate Father’s parental rights. The court pointed out that since the Navajo Nation
had not yet approved a final, adoptive placement for Children, the issue of placement
of Children was ongoing and Aunt was still a potential placement.
Motion for Reconsideration
{59} 	Father filed a motion to reconsider ruling on May 28, 2013, and the hearing on
that motion was held on August 1, 2013. Father argued that it was a violation of his
due process rights to allow the Department’s policy that seventeen-year-olds take the
foster parent classes to override the ICWA’s active efforts requirement to not break
up the family, which included extended family. The district court denied Father’s
motion based on the information and testimony in the record, including the testimony

30
of the QEW that the Department had made active efforts to prevent the breakup of the
Indian family.
{60} 	The court asked the Department to make efforts to help Aunt comply with the
licensing requirements and to actively engage Aunt’s son to participate in the classes.
The Department indicated that after the May 17, 2013, hearing, the Department had
been attempting to re-engage Aunt in the process and that they had been unable to
reach her, but that the door was definitely open.
The Fifth Permanency Hearing
{61} 	On August 26, 2013, the court held a fifth permanency hearing. We consider
the district court’s determination of good cause to deviate from the ICWA placement
preferences at this hearing because at the time, Father’s parental rights had not yet
been terminated. Although the district court had announced its intention to grant the
Department’s motion to terminate Father’s parental rights at the conclusion of the
termination trial in May 2013, Father was not divested of his parental rights, and
thereby his interest in Children’s placement, until the district court’s judgment
terminating Father’s parental rights was filed in October 2013. See State v. Lohberger,
2008-NMSC-033, ¶ 20, 144 N.M. 297, 187 P.3d 162 (“Informal expressions of a
court’s rulings are not appealable final orders or judgments. For example, a trial
court’s oral announcement of a result is not final, and parties to the case should have
no reasonable expectation of its finality.”); see also Bouldin v. Bruce M. Bernard, Inc.,

31
1967-NMSC-155, ¶ 3, 78 N.M. 188, 429 P.2d 647 (“[A]n oral ruling by the trial judge
is not a final judgment. It is merely evidence of what the court had decided to do—a
decision that the trial court can change at any time before the entry of a final
judgment.”).
{62} 	At the fifth permanency hearing, the Department reported that T.J. was doing
well in her foster placement, and that R.J. and C.J. continued to require treatment
foster care as well as intensive therapeutic treatment. The Department also reported
that Aunt had been visiting Children, but that she had been telling Children things
about their parents that were upsetting Children. The Department informed the court
that it had attempted to engage Aunt in a fourth home study, that Aunt had not fully
participated in the home study, and that Aunt withdrew from the process a fourth time
because she did not feel like it was “fair to her son.”
{63} 	The QEW indicated that she had not ruled out the Navajo Nation’s adoption
unit as to any potential placements, and that she was exploring Children’s maternal
relatives for possible placement options. The QEW reported that the Navajo Nation
supported Children’s current placement where they were receiving treatment for their
special needs. The QEW also stated that T.J. has a say in her adoptive placement, and
that the QEW supported T.J’s decision.
{64} 	The district court found that the ICWA placement preferences had not been
followed; however, good cause existed for deviating from the placement preferences

32
because no relative, no Navajo, and no Indian homes had been identified and approved
for placement. We conclude the district court appropriately found there was good
cause to deviate from the placement preferences.
Judgment Terminating Father’s Parental Rights
{65} 	The district court filed its judgment terminating Father’s parental rights on
October 29, 2013. In its judgment, the district court found that the Department had
made active efforts to comply with the ICWA placement preferences, that the
Department had proven that good cause existed to deviate from the preferences, and
that the Navajo Nation concurred with the placement under the circumstances.
{66} 	We conclude that the district court’s findings that good cause existed
throughout this case to deviate from the ICWA placement preferences were supported
by sufficient evidence. As noted earlier, the applicable standard was not before this
Court, but the district court’s findings would have been appropriate no matter what
standard was applied. For purposes of the BIA Guidelines, we note that the
Department made consistent efforts to honor Mother’s and Father’s request that Aunt
be considered as a placement for Children; the Department and the Navajo Nation,
working in conjunction, were unable to find an available ICWA preferred placement
for Children; and the Department demonstrated that Children’s cultural, physical,
mental, and emotional needs were being addressed through Children’s treatment
plans, despite the unavailability of ICWA preferred placements.

33
{67} 	It is also significant that the Navajo Nation did not object to Children’s
placement at any point during the case. The Navajo Nation never expressed concern
that Children’s cultural, physical, emotional, and psychological needs were not being
met by their treatment plans. It is also significant that the QEW recognized that, with
regard to Children’s foster care placements, good cause existed to deviate from the
ICWA preferred placements.
Relative Placement Under New Mexico Law
{68} 	New Mexico law expresses a preference that any child subject to the New
Mexico Abuse and Neglect Act be placed with relatives, whether or not the child’s
case falls under the ICWA. See § 32A-4-25.1(D) (“[T]he court shall determine
whether the [D]epartment has made reasonable efforts to identify and locate all
grandparents and other relatives. The court shall also determine whether the
[D]epartment has made reasonable efforts to conduct home studies on any appropriate
relative expressing an interest in providing permanency for . . . [Children]. The court
must ensure the consideration has been given to . . . [Children]’s familial identity and
connections.”); see also 8.10.3.16(F) NMAC (3/31/2010) (amended 2/29/2012) (the
Department “shall make every effort to identify, locate[,] and notify fit and willing
relatives for consideration of placement of a child in custody who requires out of
home placement”); 8.10.7.17(A) NMAC (3/31/2010) (“[The] department shall
exercise due diligence to identify and notify adult relatives of a child’s removal within

34
thirty . . . days of the removal. The notice shall inform relatives of their option to
become a placement resource for the child.”).
{69} 	To the extent that Father argues that the Department failed to make reasonable
efforts to identify, locate, and conduct home studies on willing and appropriate
relatives who could potentially serve as placement for Children, as required by Section
32A-4-25.1(D) and the related regulations, we conclude the Department’s efforts to
place Children with relatives, as outlined above, were sufficient to satisfy those
requirements.
Due Process
{70} 	We note that Father does not challenge the sufficiency of the evidence to
support the termination of his parental rights. Instead, Father claims that the
Department’s failure to place Children with relatives or non-relative Indian families
violated his substantive and procedural rights to due process. Father argues that his
substantive due process rights were violated when the Department failed to place
Children with Aunt, in violation of the ICWA, and thus he was deprived of his right
to maintain a familial relationship with his children. Father also contends that the
district court denied him procedural due process by entering a judgment terminating
his parental rights in the absence of full procedural compliance with the placement
preferences for Indian children under New Mexico law and the ICWA.

35
{71} 	Because we have concluded that the district court’s findings that good cause
existed throughout this case to deviate from the ICWA placement preferences were
supported by sufficient evidence, and that the Department’s efforts to place Children
with relatives were sufficient to satisfy the requirements of the New Mexico Abuse
and Neglect Act, Father’s substantive due process argument fails.
{72} 	Father further argues that the Department wrongly interfered with Father’s
pursuit of his familial relationship with Children by failing to make active efforts to
place Children with Aunt. Prior to termination of parental rights Father did have a
substantive due process right in a relationship with Children. See Santosky v. Kramer,
455 U.S. 745, 753 (1982). However, we concluded that whether the Department made
active efforts to prevent the breakup of the family is not an issue in this appeal.
Consequently, Father’s argument fails.
{73} 	Once his parental rights were terminated, he no longer had that legal right to a
continuing 	familial 	relationship 	with 	Children. 	See 	§ 	32A-4-29(L) 	(stating
“termina[tion of] parental rights divests the parent of all legal rights and privileges and
dispenses with both the necessity for the consent to or receipt of notice of any
subsequent adoption proceeding concerning the child[ren]”).
{74} 	Father’s procedural due process claim is also based on the Department’s foster
care placement of Children in non-Indian homes. “[P]rocess is due when a proceeding
affects or interferes with the parent-child relationship.” State ex rel. Children, Youth

36
& Families Dep’t v. Maria C., 2004-NMCA-083, ¶ 24, 136 N.M. 53, 94 P.3d 796.
Whether a parent was afforded due process in abuse and neglect proceedings is a
question we review de novo. State ex rel. Children, Youth & Families Dep’t v.
Kathleen D.C., 2007-NMSC-018, ¶ 11, 141 N.M. 535, 157 P.3d 714. Procedural due
process rights are implicated when a person has been denied “notice and an
opportunity to be heard at a meaningful time and in a meaningful manner.” State ex
rel. Children,Youth & Families Dep’t v. Christopher B., 2014-NMCA-016, ¶ 6, 316
P.3d 918 (internal quotation marks and citation omitted). Because Father’s claim
relied on the Department’s placement of Children during the pendency of the neglect
proceedings, rather than his notice of and opportunity to participate in the termination
proceedings, the argument fails. We hold Father’s procedural due process rights were
not violated.
Fair and Impartial Proceedings
{75} 	Father contends that he was denied fair and impartial termination proceedings
because the district court judge presiding over Father’s termination proceedings failed
to recuse himself when Children were placed in the foster home of a judge serving
within the same judicial district. Father acknowledges that this issue was not
preserved. Nonetheless, Father urges this Court to address the issue, claiming that it
affects Father’s fundamental right to a fair and impartial hearing. See Rule 12-

37
216(B)(2) NMRA (“This rule shall not preclude the appellate court from considering
. . . questions involving . . . fundamental error or fundamental rights of a party.”).
{76} 	The first step in reviewing for fundamental error is to determine whether an
error occurred. Campos v. Bravo, 2007-NMSC-021, ¶ 8, 141 N.M. 801, 161 P.3d 846.
If error has occurred, we then consider whether the error was fundamental. Id. Father
bases his claim that he was deprived of fair and impartial proceedings, on Rule 21-
211(A) NMRA, which requires that a judge “disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably be questioned.” Id.
Father argues that it could appear that the judge presiding over Father’s case might
consider the impact on his colleague if the district court judge removed Children from
the colleague’s foster home to place them with Aunt. However, the district court judge
typically does not determine placement when a child is in the legal custody of the
Department. See NMSA 1978, § 32A-1-4(O) (2009) (defining “legal custody” as “a
legal status created by order of the court . . . that vests in a person, department or
agency the right to determine where and with whom a child shall live” (internal
quotation marks omitted)). The suggestion that the district court judge’s impartiality
could be reasonably questioned, based solely on the fact that he and one of Children’s
temporary foster parents sat concurrently as judges for the same district, is insufficient
to require recusal. See Roybal v. Morris, 1983-NMCA-101, ¶ 7, 100 N.M. 305, 669

38
P.2d 1100 (“Suspicion of bias or prejudice is not enough to disqualify a judge.”). We
conclude that the district court judge did not err in not recusing himself.
CONCLUSION
{77} 	For the foregoing reasons, we affirm.
{78} 	IT IS SO ORDERED.
M. MONICA ZAMORA, Judge
I CONCUR:
MICHAEL D. BUSTAMANTE, Judge
JAMES J. WECHSLER, Judge (specially concurring).

39
WECHSLER, Judge (specially concurring).
{79} 	I concur in the result of the majority opinion. I write separately because I would
take a different path in affirming the district court.
{80} 	The nature of the case on appeal is significant. Father appeals the district court’s
judgment terminating his parental rights to Children. In his request for relief in his
brief in chief, Father specifically asks this Court to reverse the order terminating those
rights, in addition to requesting an order requiring the Department to place Children
with his relatives. The majority states that Father appealed, not in order to restore his
parental rights, but to require the Department to place Children with Aunt or,
alternatively, any interested relative. Majority Opinion ¶¶ 1, 7. The majority therefore
focuses its analysis on the foster care placement of Children prior to termination of
Father’s parental rights. Majority Opinion ¶ 8. But regardless of Father’s stated
purposes that underlie his request as characterized by the majority, I consider Father’s
appeal to be inextricably linked to the proceeding to terminate his parental rights
pursuant to the ICWA.
{81} 	A termination of parental rights proceeding is fundamentally different from a
foster care placement proceeding under the ICWA. “Foster care placement” means
“any action removing an Indian child from its parent or Indian custodian for
temporary placement . . . where the parent or Indian custodian cannot have the child

1 Father also argues that the Department failed to comply with the Abuse and
Neglect Act in its placement of Children, but Father does not raise the question of
CYFD’s compliance with the Abuse and Neglect Act with regard to the termination
of his parental rights. Nevertheless, the Abuse and Neglect Act provides that “[t]he
termination of parental rights involving a child subject to the federal [ICWA] shall
comply with the requirements of that act.” Section 32A-4-28(E).
40
returned upon demand, but where parental rights have not been terminated[.]” 25
U.S.C. § 1903(1)(i) (emphasis added). A “termination of parental rights” means “any
action resulting in the termination of the parent-child relationship[.]” 25 U.S.C.
§ 1903(1)(ii) (internal quotation marks omitted). By their own terms, “a foster care
placement proceeding seeks to temporarily remove an Indian child from the child’s
parent or Indian custodian without terminating parental rights, while a termination of
parental rights proceeding seeks to end the parent-child relationship.” Thompson v.
Fairfax Cnty. Dep’t of Family Servs., 747 S.E.2d 838, 853 (Va. Ct. App. 2013)
(alteration, internal quotation marks, and citation omitted). Father did not seek an
interlocutory appeal with regard to any foster care placement of Children. Because
Father’s appeal arises from a termination of parental rights proceeding, our inquiry
into Father’s claims must necessarily focus on the allowable grounds upon which
Father may invalidate the termination of his parental rights under the ICWA. 1
{82} 	The ICWA contains a statutory provision that provides recourse to a parent
whose parental rights to an Indian child have been terminated. That provision states:

41
Any Indian child who is the subject of any action for foster care
placement or termination of parental rights under [s]tate law, any parent
or Indian custodian from whose custody such child was removed, and the
Indian child’s tribe may petition any court of competent jurisdiction to
invalidate such action upon a showing that such action violated any
provision of [25 U.S.C. §§] 1911, 1912, and 1913 of this title.
25 U.S.C. § 1914. As a threshold matter, the plain language of this remedial provision
only provides a cause of action for violations of three sections of the ICWA. Section
1914 does not allow a parent to challenge a termination of parental rights upon a
showing that the termination violated the ICWA’s placement preferences enumerated
in 25 U.S.C. § 1915. Accordingly, I conclude that 25 U.S.C. § 1914 controls our
review of Father’s appeal, and we cannot reverse the district court’s judgment only
upon a showing that Children’s foster care placement violated the ICWA’s placement
preferences. Other jurisdictions have considered this question and also have concluded
that the provisions of 25 U.S.C. § 1914 do not apply to violations of Section 1915. See
Doe v. Mann, 285 F.Supp.2d 1229, 1241 (N.D. Cal. 2003) (“[I]t seems clear from the
text of [25 U.S.C. §] 1914 that Congress intended to provide a cause of action only for
violations of three ICWA sections.”); see also B.R.T. v. Exec. Dir. of Soc. Serv. Bd.,
391 N.W.2d 594, 601 (N.D. 1986) (stating that petition or motion challenging “order
terminating parental rights . . . is an improper vehicle for challenging the alleged
violation of the placement preferences mandated by [25 U.S.C. Section 1915].”); In
the Interest of J.W., 528 N.W.2d 657, 662 (Iowa Ct. App. 1995) (“The remedial

42
provisions of [25 U.S.C. §] 1914 do not apply to violations of [25 U.S.C. §] 1915.”);
State ex rel. Juvenile Dep’t of Multnomah Cnty. v. Woodruff, 816 P.2d 623, 625 (Or.
Ct. App. 1991) (“Failure to comply with the foster care placement preferences in §
1915(b) is not a basis for invalidating a court order terminating parental rights.”).
Therefore, I disagree with the majority that we can reach the issue of Children’s
placement in this case.
{83} 	It does seem that, theoretically, Father could have raised the issue of Children’s
placement under 25 U.S.C. § 1914 by alleging a violation of the “active efforts”
requirement outlined in 25 U.S.C. § 1912(d). In other words, Father could have
posited that CYFD’s failure to follow the ICWA’s placement preferences impacted
his ability to meet the requirements of the Department’s remedial services and
rehabilitative programs, thus constituting a failure by CYFD to engage in “active
efforts . . . designed to prevent the breakup of the Indian family.]” 25 U.S.C § 1912(d).
The district court, in its judgment terminating Father’s parental rights, found “that the
Department has made active efforts to comply with the preferences . . . [and] the
active efforts requirement [of Section 1912(d)] does not apply to extended family[.]”
Our courts have not decided whether a failure to engage in “active efforts” may serve
as a basis for invalidating a termination of parental rights judgment under the ICWA,
but that question is not before us here. Father does not directly attack the district

43
court’s finding or raise a specific argument that the “active efforts” requirement of 25
U.S.C. § 1912(d) applies to both his extended family and compliance with the
ICWA’s placement preferences pursuant to 25 U.S.C. § 1915. The majority also notes
that CYFD’s “active efforts” are not at issue in this appeal, albeit for slightly different
reasons, because Father did not adequately raise the issue. Majority Opinion ¶ 15.
{84} 	Accordingly, for the foregoing reasons, I would affirm the district court’s
judgment due to Father’s failure to state an adequate basis under the ICWA for
invalidation of the termination of his parental rights.
________________________________
JAMES J. WECHSLER, Judge