March 3, 2021- CYFD v. Maisie Y., No. A-1-CA-38719

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: March 3, 2021	3
NO. A-1-CA-38719	4
STATE OF NEW MEXICO ex rel.	5
CHILDREN, YOUTH & FAMILIES	6
DEPARTMENT,	7
Petitioner-Appellee,	8
v.	9
MAISIE Y.,	10
Respondent-Appellant,	11
and	12
RUBEN C.,	13
Respondent,	14
IN THE MATTER OF JUPITER C.,	15
JOVIAN C., JAYDEN C., and JAIZIE C.,	16
Children.	17
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY	18
Grace B. Duran, District Judge	19
Court of Appeals of New Mexico
Filed 3/3/2021 8:51 AM

Children, Youth & Families Department	1
Rebecca J. Liggett, Chief Children’s Court Attorney	2
Robert J. Retherford, Children’s Court Attorney	3
Santa Fe, NM	4
for Appellee	5
Law Offices of Nancy L. Simmons, P.C.	6
Nancy L. Simmons	7
Albuquerque, NM	8
for Appellant	9
ChavezLaw, LLC	10
Rosenda Maria Chavez	11
Sunland Park, NM	12
Guardian Ad Litem	13

OPINION	1
MEDINA, Judge.	2
{1} 	Maisie Y. (Mother) appeals the termination of her parental rights to Jupiter	3
C., Jovian C., Jayden C., and Jaizie C. (collectively, Children). Mother raises four	4
arguments on appeal: (1) requiring Mother to proceed pro se during the first day of	5
the termination of parental rights (TPR) trial violated her due process rights; (2) the	6
district court applied the wrong standard of proof to its neglect determination during	7
the 	TPR 	trial 	by 	taking 	judicial 	notice 	of 	Mother’s 	prior 	adjudications; (3)	8
insufficient evidence supports a showing of active efforts by the Children, Youth	9
and Families Department (CYFD); and (4) the district court erred in finding that	10
Mother’s continued custody was likely to result in serious emotional or physical	11
damage to Children based on testimony from an unqualified Indian Child Welfare	12
Act of 1978 (the ICWA) expert. For the reasons that follow, we reverse and remand	13
for a new trial.	14
BACKGROUND	15
{2} 	On September 12, 2017, CYFD filed an abuse and neglect petition alleging	16
that Jupiter C., age seven, Jovian C., age five years and four months, and Jayden C.,	17
age two years and eleven months, were abused or neglected by Mother. After an	18
initial adjudicatory hearing held in November 2017, the district court found, in	19
relevant part, that the ICWA applied to the proceedings. On December 4, 2017, the	20

2
district court accepted Mother’s plea of no contest to the allegations in the petition	1
and entered an adjudicatory judgment finding Children neglected as defined in	2
NMSA 1978, Section 32A-4-2(G)(2) (2017, amended 2018). At the time of her plea,	3
Mother was represented by court-appointed counsel. In a dispositional order, the	4
district court adopted CYFD’s treatment plan.	5
{3} 	On January 17, 2018, CYFD filed an abuse and neglect petition alleging	6
Mother neglected Jaizie C., age two months and twenty-four days. On March 5,	7
2018, CYFD included a second allegation of neglect in an amended petition. An	8
adjudicatory hearing commenced on March 12, 2018, and was continued to April	9
23, 2018. Court-appointed counsel represented Mother during both hearings. At the	10
continued hearing Mother did not contest the allegations of abuse or neglect. After	11
the hearing the district court issued an adjudicatory judgment and found, in relevant	12
part, that the ICWA applied to Jaizie C. The district court also found that CYFD	13
proved by clear and convincing evidence that Jaizie C. was neglected, as defined in	14
Section 32A-4-2(G)(2). In a dispositional order, the district court adopted CYFD’s	15
treatment plan.	16
{4} 	On November 29, 2018, Mother’s court-appointed counsel filed motions to	17
withdraw from representation in both cases, citing a breakdown of the attorney-client	18
relationship. The district court granted the motions on December 4, 2018, and	19
appointed new counsel.	20

3
{5} 	In February 2019, the district court consolidated the two cases, and CYFD	1
moved to terminate Mother’s parental rights to all four Children. As grounds	2
therefore, CYFD alleged that the causes and conditions that brought Children into	3
CYFD’s custody are unlikely to change in the foreseeable future despite CYFD’s	4
reasonable efforts to assist Mother in adjusting the conditions that rendered her	5
unable to properly care for Children. Specifically, CYFD alleged Mother was unable	6
or unwilling to utilize its services. The district court held a TPR trial over the course	7
of two days.	8
{6} 	On the first day of the TPR trial, Mother’s court-appointed counsel, Julie	9
Kester, asked to withdraw, asserting, “[Mother] does not want me to represent her.”	10
The district court asked counsel whether Mother wanted to proceed without	11
representation to which counsel responded, “I believe you could ask her. . . . She	12
was just very clear that she does not want me to represent her.” The district court did	13
not ask Mother if she wished to waive her right to counsel and proceed pro se and	14
instead stated:	15
Alright, here is what I think we should do. I would still like for Ms.	16
Kester to remain in the courtroom and I would like to have you advise	17
[Mother] in the event that she has any questions about the procedure.	18
But we are going to go forward. I don’t want this process to be	19
compromised simply because someone comes in and says that they are	20
unhappy.	21
{7} 	Five witnesses including Mother testified during the first day of the TPR trial.	22
Our review of the trial reveals that Mother struggled to question witnesses and to	23

4
respond to objections. For example, when it came time to cross-examine Children’s	1
father (Father), whose parental rights were also the subject of the TPR trial, the	2
following colloquy occurred:	3
Court: 	[Mother], you can ask questions of [Father] and if you	4
would like you can confer with Ms. Kester.	5
Mother: 	Obviously a big issue here is my mental health, if that is a	6
huge concern then how can I possibly represent myself,	7
like, competently when I am thought otherwise.	8
Court: 	Well that is why you did have [counsel] and you still have	9
her to help you, to assist you.	10
Mother: 	She has not helped me.	11
Court: 	Well but you know she is there to help you. And so . . .	12
you have the right to ask questions of [Father] regarding	13
his testimony.	14
Shortly 	thereafter, 	Father’s 	counsel 	objected 	to 	Mother’s 	attempted 	cross-	15
examination on grounds that she was testifying. The district court responded, “Can	16
you just ask a question [and] not testify?” Mother responded, “Am I going to ask	17
questions to everybody?” The court advised that she would, and Mother asked only	18
a few more questions before receiving another objection on the grounds that she was	19
testifying. Mother responded, “No, I was—it wasn’t testimony, and I am trying to	20
think of questions because I was not prepared to do this today, but I want to speak	21
for myself as much as I can. That’s all.” Mother then concluded her cross-	22
examination of Father.	23

5
{8} 	Later, during her cross-examination of the drug court program manager,	1
Mother vociferously disagreed with testimony regarding the number of opportunities	2
she had to sign up for and participate in drug court. The district court warned Mother	3
not to argue with the witness. Thereafter Mother did not ask any questions but	4
instead stated that her medical records would show she had a broken foot and	5
explained why she believed she was only given one opportunity to participate in	6
drug court. Mother’s statement drew another objection on grounds that she was	7
testifying, and the district court informed Mother that she would have an opportunity	8
to present her own side. Mother expressed her frustration stating, “Well see if I had	9
a competent attorney, I wouldn’t have to be doing this myself.” Mother also wept	10
while attempting to cross-examine the last witness of the day. At the end of the day,	11
the district court cautioned Mother that she came very close to stating that she was	12
ready to relinquish her parental rights and did not want her to say anything and	13
continued the TPR trial to June 2019.	14
{9} 	In May 2019, and before continuing the TPR trial, the district court appointed	15
counsel to represent Mother. Counsel represented Mother throughout the remainder	16
of the termination proceedings during which six additional witnesses testified. The	17
district court later entered a judgment terminating Mother’s parental rights to	18
Children. The district court concluded that Mother was unlikely to change the causes	19

6
and conditions of her neglect of Children in the foreseeable future despite CYFD’s	1
active efforts to assist her and found the following:	2
[1.] [Mother] didn’t engage in several parts of her case plan . . . even	3
though she knew that her participation was required to regain custody	4
of [C]hildren.	5
[2.] [Mother] did not fully engage and/or complete treatment services	6
to remedy the causes and conditions that brought [C]hildren into CYFD	7
custody despite ongoing efforts by CYFD and numerous referrals for	8
services.	9
[3.] 	[Mother] 	admitted 	to 	being 	bi-polar 	and 	suffering 	from	10
hallucinations and needing help with medical management . . . [and]	11
testified that other health conditions that she has such as lupus and	12
fibromyalgia make it difficult for her to . . . provide adequate care for	13
. . . [C]hildren.	14
[4.] . . . [I]t is unlikely that even with additional time she will be able to	15
complete the requirements of her case plan [and] . . . acknowledged that	16
[C]hildren deserve a safe and stable home which she is unable to	17
provide for them.	18
{10} 	This appeal followed.	19
DISCUSSION	20
{11} 	Although we reverse the termination of Mother’s parental rights and remand	21
for a new trial based on the denial of Mother’s statutory right to counsel, in the	22
interest of judicial economy, we address certain legal errors that are likely to repeat	23
themselves on remand. In particular, we address Mother’s claim that the district	24
court applied the wrong standard of proof to its neglect determination during the	25
TPR trial when it took judicial notice of Mother’s previous adjudications. We also	26

7
address Mother’s active efforts, arguments only, to the extent that they require	1
clarification of law for the purposes of remand. We do not reach Mother’s arguments	2
relating to the sufficiency of the evidence or those regarding the purported	3
unqualified ICWA expert.	4
Mother’s Statutory Right to Counsel at the TPR Trial	5
{12} 	Mother argues that her due process rights were violated when the district court	6
required her to proceed pro se during the first day of the TPR trial. Mother	7
specifically argues that she never stated that she wished to represent herself and	8
additionally 	asserts 	that 	the 	district 	court 	should 	have 	advised 	her 	of 	the	9
ramifications of self-representation, as enumerated in Faretta v. California, 422 U.S.	10
806, 807, 818-20 (1975), prior to “forcing her to proceed pro se[.]” CYFD concedes	11
that Mother’s due process rights were violated because she did not waive her right	12
to counsel, she was therefore denied effective assistance of counsel, and she is	13
entitled to reversal of the TPR judgment and remand for a new trial. However, in	14
conceding that Mother’s due process rights were violated, CYFD asserts that	15
“Faretta warnings are only given when criminal defendants state that they wish to	16
appear pro se” and that they did not apply in this case because Mother never stated	17
she wished to represent herself. Although CYFD concedes error, we are not required	18
to accept a party’s concession on appeal; thus we review the merits of Mother’s	19
claim. See State v. Anthony L., 2019-NMCA-003, ¶ 17, 433 P.3d 347 (noting that	20

8
the state’s concession is not binding on appeal). In doing so, we acknowledge that	1
this issue raises due process concerns; however, we do not engage in a due process	2
analysis because we conclude that the district court’s actions violated Mother’s	3
statutory right to counsel and amounted to reversible error. We explain.	4
{13} 	The right to counsel during a TPR proceedings involves the interpretation of	5
a statute, which we review de novo. See State ex rel. Children, Youth & Families	6
Dep’t v. Benjamin O., 2007-NMCA-070, ¶ 24, 141 N.M. 692, 160 P.3d 601	7
(interpreting the Abuse and Neglect Act de novo). Our Legislature recognized the	8
importance of counsel during abuse and neglect proceedings when it created a	9
statutory right to counsel in the Children’s Code. See NMSA 1978, § 32A-4-10(B)	10
(2005). Section 32A-4-10(B) provides in pertinent part that “counsel shall be	11
appointed for the parent . . . until an indigency determination is made at the custody	12
hearing. Counsel shall also be appointed if, in the court’s discretion, appointment of	13
counsel is required in the interest of justice.” (Emphases added.) This right includes	14
a right to appointed counsel in termination proceedings. See Children, Youth	15
Families Dep’t v. Amanda M., 2006-NMCA-133, ¶ 20, 140 N.M. 578, 144 P.3d 137	16
(recognizing that the “right to counsel exists from the inception of an abuse or	17
neglect proceeding” and that a parent’s statutory right to counsel in termination	18
proceedings includes the right to effective counsel (internal quotation marks and	19
citation omitted)). In this case, the district court determined early in the proceedings	20

9
that the interest of justice required the appointment of counsel for Mother. As a result	1
of its determination, the district court appointed two different attorneys to represent	2
Mother during phases of this case, leading up to the TPR trial. The record does not	3
indicate that the district court ever determined that the interest of justice no longer	4
required appointed counsel for Mother. However, on the first day of the TPR trial,	5
the district court appears to have assumed that Mother wished to waive her right to	6
counsel. Thus, we determine whether Mother in fact waived her statutory right to	7
counsel.	8
{14} 	While a parent may waive their right to counsel, the record is devoid of	9
evidence indicating that Mother waived her right in this case; much less that she did	10
so in an intelligent and knowing manner. See State ex rel. Dep’t of Human Servs. v.	11
Perlman, 1981-NMCA-076, ¶¶ 9-10, 96 N.M. 779, 635 P.2d 588 (concluding, under	12
a previous version of the Children’s Code, that the waiver of a parent’s right to	13
counsel must be done knowingly and intelligently). After learning from counsel that	14
Mother no longer wanted Ms. Kester to represent her, the court asked Ms. Kester to	15
remain in the courtroom to aid Mother and moved forward with the TPR trial without	16
ever asking Mother directly whether she intended to waive her right to counsel. At	17
no point did Mother affirmatively state that she wished to waive her right to counsel	18
or that she intended to proceed pro se. On the contrary, Mother’s remarks during the	19
trial, including that she was unprepared and that she would not have to represent	20

10
herself if she had a “competent attorney,” indicate that Mother did not wish to do so.	1
Consequently, we conclude that Mother did not waive her statutory right to counsel	2
and, therefore, the district court’s actions violated her statutory right to counsel. Cf.	3
State ex rel. Children, Youth & Families Dep’t v. John R., 2009-NMCA-025, ¶ 19,	4
145 N.M. 636, 203 P.3d 167 (holding under a similar provision that “failure to	5
appoint counsel for [a c]hild is reversible error because it . . . violated the Children’s	6
Code”). We next evaluate whether the absence of counsel prejudiced Mother. See	7
id. ¶ 20 (“To warrant reversal, error must be prejudicial.” (internal quotation marks	8
and citation omitted)).	9
{15} 	We conclude that it did because Mother was unable to effectively represent	10
herself during the first day of the TPR trial. Mother struggled to question witnesses,	11
struggled to respond to objections, and wept during her examination of one witness.	12
The witnesses during the first day of the TPR trial included service providers who	13
testified to matters significant to the court’s determination in this case—i.e.,	14
Mother’s participation in the case plan, her ability to ameliorate the causes and	15
conditions of neglect, and Children’s treatment. Moreover, the few objections	16
Mother made to these witnesses were all overruled. Based on the record in this case,	17
we conclude that the lack of appointed counsel prejudiced Mother because she was	18
unable to effectively contest the allegations levied against her and lacked the ability	19
to challenge the admissibility of evidence—evidence that the district court relied on	20

11
in deciding to terminate Mother’s parental rights. Based on the foregoing, we hold	1
that the district court’s actions violated Mother’s statutory right to counsel and	2
amounted to reversible error. We therefore reverse the termination of Mother’s	3
parental rights and remand for a new trial.	4
Burden of Proof for Neglect Determinations Involving the ICWA	5
{16} 	We now turn to Mother’s claim that the district court applied the wrong	6
standard of proof to its neglect determinations. Specifically, Mother argues that	7
because an adjudication of abuse or neglect requires only a showing of clear and	8
convincing evidence, the district court’s taking of judicial notice of her prior	9
adjudications to support its neglect determination did not satisfy the higher beyond	10
a reasonable doubt standard imposed by the New Mexico Abuse and Neglect Act	11
and the ICWA. CYFD does not contest that the beyond a reasonable doubt standard	12
applies to the neglect determinations in this case. 1 Because this issue has not	13
previously been decided, we address it today.2
14
1CYFD construes Mother’s claim as a simple challenge to the sufficiency of
the evidence and argues that evidence presented during the TPR trial along with the
district court’s judicial notice of Mother’s prior adjudication, was sufficient to meet
the beyond a reasonable doubt standard. We disagree with CYFD’s framing of
Mother’s argument. Regardless, given our reversal and remand for a new TPR trial,
we do not address the sufficiency of evidence supporting the district court’s findings
of neglect.
2We acknowledge that in State ex rel. Children, Youth & Families Department
v. Arthur C., we assumed that the beyond a reasonable doubt standard applied in the
ICWA termination cases. 2011-NMCA-022, ¶ 25, 149 N.M. 472, 251 P.3d 729,
superseded by rule on other grounds as stated in 	State ex rel. Children, Youth &

12
{17} 	This issue presents a question of statutory interpretation, which we review de	1
novo. See State ex rel. Children, Youth & Families Dep’t v. Maurice H., 2014-	2
NMSC-034, ¶ 34, 335 P.3d 746. In interpreting a statute we first turn to the plain	3
meaning of the statute at issue and only proceed with further analysis “if the relevant	4
statutory 	language 	is 	unclear, 	ambiguous, 	or 	reasonably 	subject 	to 	multiple	5
interpretations.” Id. (alteration, internal quotation marks, and citation omitted). We	6
begin by analyzing the requirements for termination of parental rights under New	7
Mexico law.	8
{18} 	The Legislature established the standard of proof applicable to parental	9
termination orders in NMSA 1978, Section 32A-4-29(I) (2009), which provides:	10
The grounds for any attempted termination shall be proved by clear and	11
convincing evidence. In any proceeding involving a child subject to the	12
[ICWA], the grounds for any attempted termination shall be proved	13
beyond a reasonable doubt and shall meet the requirements set forth in	14
25 U.S.C. Section 1912(f) [(2018)].	15
NMSA 1978, Section 32A-4-28(B) (2005), which sets out various grounds for the	16
termination of parental rights, in turn provides in relevant part that a court shall	17
terminate parental rights when	18
Families Dep’t v. Tanisha G., 2019-NMCA-067, ¶ 11, 451 P.3d 86. However,
because the standard was not challenged on appeal, the question of whether the
district 	court 	applied 	the 	appropriate 	standard 	of 	proof 	was 	not
addressed. See Fernandez v. Farmers Ins. Co. of Ariz., 1993-NMSC-035, ¶ 15, 115
N.M. 622, 857 P.2d 22 (“The general rule is that cases are not authority for
propositions not considered.” (internal quotation marks and citation omitted)).

13
the child has been a neglected or abused child as defined in the Abuse	1
and Neglect Act and the court finds that the conditions and causes of	2
the neglect and abuse are unlikely to change in the foreseeable future	3
despite reasonable efforts by the department or other appropriate	4
agency to assist the parent in adjusting the conditions that render the	5
parent unable to properly care for the child.	6
{19} 	A plain reading of the language in Section 32A-4-29(I) indicates that two	7
distinct standards of proof apply to the grounds supporting a termination of parental	8
rights: (1) clear and convincing; and (2) beyond a reasonable doubt. In cases where	9
the ICWA applies, the statute unambiguously requires that the beyond a reasonable	10
doubt standard applies. Section 32A-4-29(I). Reading the statutory provisions in pari	11
materia, 	we 	hold 	that 	Section 	32A-4-29(I) 	dictates 	the 	grounds 	supporting	12
termination of parental rights in ICWA cases, including the determination that a	13
child has been abused or neglected under Section 32A-4-28(B)(2), must be proved	14
beyond a reasonable doubt. See Maurice H., 2014-NMSC-034, ¶ 34 (“[W]e analyze	15
a statute’s function within a comprehensive legislative scheme. In other words, a	16
statutory subsection may not be considered in a vacuum, but must be considered in	17
reference to the statute as a whole and in reference to statutes dealing with the same	18
general subject matter.” (internal quotation marks and citations omitted)).3
19
3 Mother additionally argues that 25 U.S.C. § 1912(f) (2018) requires
application 	of 	the 	beyond 	a 	reasonable 	doubt 	standard 	to 	abuse 	or 	neglect
determinations during TPR trials in which the ICWA applies. Mother cites no
authority to support this contention, and because we have determined that state law
requires proof of abuse or neglect beyond a reasonable doubt for termination in
ICWA cases, we do not reach Mother’s arguments under § 1912(f).

14
{20} 	Having clarified that the beyond a reasonable doubt standard applies to abuse	1
and neglect determinations in TPR proceedings in which the ICWA applies, we now	2
turn to Mother’s claim that the district court failed to apply this standard when it	3
determined that Children were neglected. In terminating Mother’s parental rights,	4
the district court took judicial notice of Mother’s prior adjudications of neglect and	5
found that as a result of her no contest pleas, “it is the law of the case that [C]hildren	6
have been neglected.” Significantly, the district court did not make any other	7
findings of neglect or tie its finding to evidence presented during the TPR trial.	8
{21} 	In New Mexico, the adjudicatory stage of abuse or neglect proceedings require	9
that the district court determine whether abuse or neglect occurred “on the basis of	10
clear and convincing evidence.” NMSA 1978, § 32A-4-20(H) (2014). However, as	11
discussed above, New Mexico law requires proof beyond a reasonable doubt of the	12
grounds supporting termination in ICWA cases—including that a child has been	13
abused or neglected. 	See 	§ 32A-4-28(B)(2); § 32A-4-29(I). Therefore, taking	14
judicial notice of a prior adjudication of abuse or neglect, which was made under a	15
clear and convincing standard, and relying exclusively on that adjudication, is	16
inadequate to demonstrate that a district court made the necessary finding beyond a	17
reasonable doubt to support termination of parental rights.	18
{22} 	In this case, because the district court relied solely on judicial notice of	19
Mother’s prior adjudications to support its finding that Children were neglected, the	20

15
district court failed to make its neglect determination under the correct standard.	1
Accordingly, on remand, the district court shall require that the grounds for	2
termination of parental rights be proved beyond a reasonable doubt, as required by	3
Section 32A-4-29(I).	4
Active Efforts Must Be Proved Beyond a Reasonable Doubt	5
{23} 	Next, in light of the foregoing analysis and because Mother challenges the	6
sufficiency of active efforts made in this case, we address the appropriate standard	7
of proof under which a district court must make its active efforts determination and,	8
in so doing, reevaluate our holding in State, ex rel. Children, Youth & Families	9
Department v. Yodell B., 2016-NMCA-029, ¶ 21, 367 P.3d 881. Mother asserts that	10
CYFD did not show by clear and convincing evidence that it made active efforts to	11
preserve the Indian family. Although we do not evaluate the sufficiency of active	12
efforts because we already have reversed and remanded for a new TPR trial, because	13
the district court must make an active efforts determination on remand, we take this	14
opportunity to clarify the standard applicable to such determinations. To that end,	15
we requested and received supplemental briefs addressing Section 32A-4-29(I) and	16
its applicability to the ICWA’s active efforts requirement in 25 U.S.C. § 1912(d).	17
Having reviewed and considered the supplemental briefs, we conclude that the	18
beyond a reasonable doubt standard applies to a district court’s active efforts	19

16
determination in cases in which the ICWA applies. To the extent Yodell B. is	1
inconsistent with this holding, it is overruled.	2
{24} 	The ICWA requires that “[a]ny party seeking to effect a . . . termination of	3
parental rights to[] an Indian child under [s]tate law shall satisfy the court that active	4
efforts have been made to provide remedial services and rehabilitative programs	5
designed to prevent the breakup of the Indian family and that these efforts have	6
proved unsuccessful.” 25 U.S.C. § 1912(d) (emphasis added). In Yodell B., a father	7
whose parental rights were terminated challenged the sufficiency of evidence to	8
support CYFD’s active efforts to prevent the breakup of the family. 2016-NMCA-	9
029, ¶ 7. On appeal, the father did not challenge the district court’s application of	10
the beyond a reasonable doubt standard to the active efforts requirement. Id. ¶ 11.	11
However, acknowledging the absence of a specific standard of proof in § 1912(d),	12
and the lack of applicable New Mexico case law, this Court endeavored to determine	13
the appropriate standard by looking to authority in various other jurisdictions. See	14
Yodell B., 2016-NMCA-029, ¶¶ 8-9, 11-16. In doing so, our Court recognized that a	15
majority of cases “have adopted the clear and convincing standard as more	16
appropriate” in this context. Id. ¶ 14.	17
{25} 	For example, our Court looked to Valerie M. v. Arizona Department of	18
Economic Security, in which a mother appealed the termination of her parental rights	19
arguing that the ICWA requires proof beyond a reasonable doubt for state law	20

17
findings supporting termination. 198 P.3d 1203, 1205 (Ariz. 2009). Rejecting the	1
mother’s arguments in favor of a clear and convincing evidence standard, the court	2
in 	Valerie M. 	recognized that the ICWA contemplates that state courts will	3
adjudicate custody cases involving Indian children. Id. at 1206-07. In such cases, the	4
ICWA imposes substantive requirements, including that the state court must be	5
persuaded that active efforts have been made. Id. at 1206. With regard to the ICWA’s	6
substantive requirements, the Arizona court concluded that “Congress did not	7
displace state law in favor of uniform standards [but] instead it recognized that	8
federal requirements would be in addition to state law requirements, which will	9
themselves prevail over federal law if they are more protective of parental rights.”	10
Id. at 1207. Thus, the court reasoned that the fact “Congress did not expressly	11
address the burden of proof applicable to findings required by state law suggests that	12
this was not an issue on which Congress thought a minimum federal standard was	13
necessary.” Id. In turn, it was appropriate to require only a showing of active efforts	14
by clear and convincing evidence—the standard applicable under Arizona state law.	15
Id. at 1206-07.	16
{26} 	Our Court also looked to Nebraska v. Martina A., in which a mother appealed	17
the termination of her parental rights and similarly argued that the beyond a	18
reasonable doubt standard should apply to evidence of active efforts under a state	19
statute identical to 25 U.S.C. § 1912(d). Nebraska v. Martina A., 744 N.W.2d 55,	20

18
59-60 (Neb. 2008). Like § 1912(d), the state statute did not specify an applicable	1
standard of proof. Martina A., 744 N.W.2d at 60. In addressing the mother’s	2
arguments, the court analyzed other subsections of § 1912 that do establish specific	3
standards of proof and reasoned that “[t]he specified standards of proof in . . .	4
§ 1912(e) and (f) illustrate that if Congress had intended to impose a heightened	5
standard of proof for the active efforts element in § 1912(d), it would have done so.”	6
Martina A., 244 N.W.2d at 61. Because the Nebraska court concluded that Congress	7
did not intend to require a specific standard of proof for active efforts, the court	8
declined to interpret the ICWA or the state corollary as requiring proof of active	9
efforts beyond a reasonable doubt. Id. Instead, the court concluded that the clear and	10
convincing evidence standard was appropriate, as it is the general standard required	11
for terminating parental rights under Nebraska law. Id.	12
{27} 	We agree with the cases identified in Yodell B., including Valerie M. and	13
Walter W., to the extent they support a conclusion that in the absence of a federally	14
established standard of proof, a state may establish the appropriate standard	15
applicable under its laws. However, Yodell B.’s reliance on these cases to establish	16
the clear and convincing evidence standard for active efforts is misplaced. Unlike	17
the majority jurisdictions identified in Yodell B., given our analysis of Section 32A-	18
4-29(I), it is clear that New Mexico has adopted a higher burden of proof in ICWA	19
termination cases. While the Court in Yodell B. references Section 32A-4-29(I) in	20

19
passing, it did not substantively evaluate its requirements. See Yodell B., 2016-	1
NMCA-029, ¶ 16. Instead, the Court adopted the majority’s approach without	2
recognizing that Section 32A-4-29(I) imposes a beyond a reasonable doubt standard	3
to cases in which the ICWA applies.	4
{28} 	As discussed above, New Mexico law requires proof beyond a reasonable	5
doubt of the grounds for termination of parental rights in ICWA cases. See § 32A-	6
4-29(I) (providing that “[i]n any proceeding involving a child subject to the [ICWA],	7
the grounds for any attempted termination shall be proved beyond a reasonable doubt	8
and shall meet the requirements set forth in 25 U.S.C. Section 1912(f)”). Although	9
CYFD argues that the ICWA’s active efforts requirement is not a ground for	10
termination subject to the higher standard imposed by Section 32A-4-29(I), we are	11
not persuaded. Our case law recognizes that § 1912(d) requires CYFD to make	12
active efforts, as opposed to reasonable efforts under Section 32A-4-28(B)(2), in	13
support of terminating a parent’s parental rights in cases where the ICWA applies.	14
See Yodell B., 2016-NMCA-029, ¶ 20 (defining “active efforts” as “a more involved	15
and less passive standard than that of reasonable efforts” (internal quotation marks	16
and citation omitted)); 25 U.S.C. § 1912(d) (requiring “active efforts” to provide	17
services to a parent of an Indian child prior to termination of parental rights); § 32A-	18
4-28(E) (requiring that “[t]he termination of parental rights involving a child subject	19
to the [ICWA] shall comply with the requirements of that act”). Indeed, our Supreme	20

20
Court has observed that “[i]n cases where [ICWA] applies, a showing of active	1
efforts on the part of [CYFD] is required before a parent’s parental rights may be	2
terminated.” State ex rel. Children, Youth & Families Dep’t v. Keon H., 2018-	3
NMSC-033, ¶ 42, 421 P.3d 814 (emphasis added).	4
{29} 	Therefore, because a showing of active efforts is one of the grounds that must	5
be established in support of ICWA terminations and because Section 32A-4-29(I)	6
applies the beyond a reasonable doubt standard to the grounds for parental	7
terminations in ICWA cases, we hold that New Mexico law requires proof beyond a	8
reasonable doubt of active efforts. Application of this higher standard of proof is not	9
only required under Section 32A-4-29(I) but mandated by 25 U.S.C. § 1921 (2018),	10
which provides that “[i]n any case where State or Federal law applicable to a child	11
custody proceeding under State or Federal law provides a higher standard of	12
protection to the rights of the parent or Indian custodian of an Indian child than the	13
rights provided under this subchapter, the State or Federal court shall apply the State	14
or Federal standard.” (Emphasis added.) In New Mexico, the unambiguous language	15
used in Section 32A-4-29(I) clearly evinces our Legislature’s intent to impose a	16
higher burden of proof to the grounds supporting parental terminations in ICWA	17
cases. See Maurice H., 2014-NMSC-034, ¶ 34 (“To glean the Legislature’s intent,	18
the Court first turns to the plain meaning of the words at issue.” (alteration, internal	19
quotation marks, and citation omitted)). Given our holding, we overrule Yodell B. to	20

21
the extent it requires proof of active efforts under the clear and convincing evidence	1
standard.	2
{30} 	We recognize that the principle of stare decisis generally obligates courts to	3
follow precedent, which in turn promotes stability of the law, judicial economy, and	4
fairness in assuring that like cases 	are treated 	similarly. 	Trujillo v. City of	5
Albuquerque, 1998-NMSC-031, ¶ 33, 125 N.M. 721, 965 P.2d 305. Nevertheless, at	6
times special justification warrants a departure from precedent. Id. ¶ 34. While “[w]e	7
do not overturn precedent lightly . . . where our analysis convincingly demonstrates	8
that a past decision is wrong, [our c]ourt[s] ha[ve] not hesitated to overrule even	9
recent precedent.” State v. Radosevich, 2018-NMSC-028, ¶ 21, 419 P.3d 176	10
(internal quotation marks and citation omitted). As evidenced by our analysis of	11
relevant state and federal statutes, we conclude that the clear and convincing	12
evidence standard was incorrectly identified as the standard of proof applicable to	13
active efforts in Yodell B. Further, given the Legislature’s clear intent to impose a	14
higher burden of proof in ICWA termination cases through Section 32A-4-29(I),	15
Yodell B. directly conflicts with this goal. We therefore depart from Yodell B.	16
because “it constitutes a detriment to coherence and consistency in the law.” Trujillo,	17
1998-NMSC-031, ¶ 36 (internal quotation marks and citation omitted); see also State	18
ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, ¶ 43, 135 N.M. 375, 89 P.3d	19
47 (overturning precedent where “[t]he decision pose[d] a direct obstacle to the	20

22
realization of important objectives embodied in New Mexico water law” (internal	1
quotation marks and citation omitted)); Padilla v. State Farm Mut. Auto. Ins. Co.,	2
2003-NMSC-011, ¶ 14, 133 N.M. 661, 68 P.3d 901 (overturning precedent where	3
the decision “interfere[d] with the legislative objectives inherent in the uninsured	4
motorist statute”).	5
{31} 	Although we overturn Yodell B. to the extent that case requires proof of active	6
efforts by clear and convincing evidence, we emphasize that our holding in this case	7
is limited only to the standard of proof required and does not alter our holding in	8
Yodell B. 	as to the nature of active efforts. 	See 	2016-NMCA-029, ¶¶ 17-20	9
(discussing the nature and extent of active efforts required under ICWA).	10
Mother’s ICWA Expert Arguments	11
{32} 	Because we conclude that the district court committed reversible error in	12
denying Mother’s statutory right to counsel and that remand for a new trial is	13
necessary, we do not reach Mother’s argument regarding the qualification of the	14
ICWA expert during the TPR trial.	15
CONCLUSION	16
{33} 	For the foregoing reasons, we reverse the termination of Mother’s parental	17
rights and remand to the district court for a new trial in conformance with the	18
standards discussed in this opinion. In doing so, we expect the district court to	19
carefully consider all of the grounds for termination including—but not limited to—	20

23
determinations of abuse or neglect, active efforts provided, and whether the	1
continued custody of Children is likely to result in serious emotional or physical	2
damage; and we further emphasize the importance of detailed findings of fact by the	3
district court to support its ruling.	4
{34} 	IT IS SO ORDERED.	5
_______________________________	6
JACQUELINE R. MEDINA, Judge	7
WE CONCUR:	8
________________________________	9
JENNIFER L. ATTREP, Judge	10
________________________________	11
ZACHARY A. IVES, Judge	12