State ex rel. Children, Youth & Families Dep't v. Ruben C. (In re Jupiter C.)

521 P.3d 431

STATE of New Mexico EX REL. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee,

v.RUBEN C., Respondent-Appellant,andMaisie Y., Respondent,

In the Matter of Jupiter C., Jovian C., Jayden C., and Jaizie C., Children.

No. A-1-CA-38499

Court of Appeals of New Mexico.

Filing Date: July 29, 2021

Certiorari Granted, November 2, 2022, No. S-1-SC-39037

Children, Youth & Families Department, Rebecca J. Liggett, Chief Children's Court Attorney, Robert Retherford, Children's Court Attorney, Santa Fe, NM, for Appellee

Susan C. Baker, El Prado, NM, for Appellant

ChavezLaw, LLC, Rosenda M. Chavez, Sunland Park, NM, Guardian Ad Litem

MEDINA, Judge.

{1} Ruben C. (Father) and Maisie Y. (Mother) are the parents of Jupiter C., Jayden C., Jovian C., and Jaizie C. (collectively, Children). Children are eligible for enrollment with Father's tribe, the Choctaw Nation (the Nation), and are thus Indian children for purposes of the Indian Child Welfare Act of 1978 (ICWA).¹

{2} Upon petition by the Children, Youth and Families Department (CYFD), Children were adjudicated abused and neglected by Father and Mother. CYFD thereafter moved to terminate Father and Mother's parental rights. At the conclusion of concurrent termination of parental rights (TPR) trials, the district court terminated both Father and Mother's parental rights to Children.

{3} On appeal, both parents separately challenged the district court's application of ICWA. We addressed Mother's appeal in State ex rel. Children, Youth & Families Department v. Maisie Y. , 2021-NMCA-023, 489 P.3d 964. Although this Court reversed and remanded Mother's case for a new TPR trial on other grounds, we clarified New Mexico law regarding standards of proof in termination of parental rights cases subject to ICWA. See id. ¶ 11. Specifically, we held that in cases subject to ICWA, New Mexico law requires the following: (1) all grounds to terminate parental rights, including determinations of abuse and neglect, must be proven beyond a reasonable doubt; (2) judicial notice of prior adjudications of abuse and neglect made under the clear and convincing evidence standard, without more, is insufficient; and (3) the active efforts requirement of ICWA must be proven beyond a reasonable doubt. Id. ¶¶ 16-31.

{4} In light of our holdings in Maisie Y. , this appeal presents a number of novel issues including: (1) whether the presumption of retroactivity in civil cases applies to cases under the Abuse and Neglect Act (ANA) and if so, whether that presumption has been overcome here; (2) whether an exception to the requirement that issues be adequately preserved for review applies to the issues presented in Father's appeal; (3) whether our holdings in Maisie Y. require us to reverse the termination of Father's parental rights, despite Father's failure to preserve these claims of error; and finally, (4) if reversal is required, what remedy is appropriate on remand.

{5} For the reasons discussed below, we conclude that (1) the presumption of retroactivity in civil cases applies to cases under the ANA, and that the presumption is not overcome in this instance; (2) the nature of the fundamental rights at stake in this case, viewed in the context of ICWA, compel us to exercise our discretion to review Father's claims despite his failure to preserve the claims of error; (3) Maisie Y. requires reversal; and (4) the district court must hold a new TPR trial on remand.

BACKGROUND

{6} A brief review of the events that led to the present appeal is warranted. We reserve discussion of additional facts as necessary to our analysis.

Petitions and Adjudications of Abuse and Neglect

{7} In September 2017, CYFD filed a petition alleging that Jupiter C. (age seven years), Jovian C. (age five years), and Jayden C. (age two years and eleven months) (collectively, Older Children) were abused and neglected by Father and Mother. After CYFD notified the district court that Older Children were eligible for tribal enrollment and that ICWA applied, the Nation intervened in Older Children's case.

{8} Father and Mother pled no contest to neglect under NMSA 1978, Section 32A-4-2(G)(2) (2018) (defining a "neglected child" as one "who is without proper parental care and control or subsistence, education, medical or other care or control necessary for the child's well-being because of the faults or habits of the child's parent").

{9} The following month, CYFD filed a petition alleging that Jaizie C. (Infant) was abused by Father and neglected by Mother.² Infant was also eligible for enrollment with the Nation, and the Nation intervened in the case. Father pled no contest to neglect under Section 32A-4-2(G)(2) in March 2018.

{10} Older Children and Infant's CYFD cases were consolidated, after which CYFD moved to terminate both Father and Mother's parental rights to Children.

TPR Trial

{11} The district court held Father and Mother's TPR trials concurrently in 2019. The court heard testimony from Father and Mother, representatives from family treatment court, CYFD, therapists and substance abuse counselors, and an ICWA expert employed by the Nation. At the conclusion of the TPR trials, the district court issued its findings of fact and conclusions of law, and ordered Father and Mother's parental rights terminated in September 2019. Father and Mother both appealed the termination of their parental rights.

Maisie Y.

{12} As stated, we resolved Mother's appeal earlier this year in Maisie Y. , 2021-NMCA-023, 489 P.3d 964. To summarize, we held that (1) NMSA 1978, Section 32A-4-29(I) (2009) requires that all grounds to terminate parental rights in ICWA cases, including determinations of abuse and neglect under NMSA 1978, Section 32A-4-28(B)(2) (2005), be proven beyond a reasonable doubt; (2) in cases subject to ICWA, judicial notice of prior adjudications of abuse and neglect made under the clear and convincing evidence standard, without more, is insufficient to meet the requirements of Section 32A-4-29(I) ; and (3) as a matter of New Mexico law under Section 32A-4-29(I), the active efforts requirement of 25 U.S.C. § 1912(d) (2018) must be proven beyond a reasonable doubt.³ See Maisie Y. , 2021-NMCA-023, ¶¶ 16-31, 489 P.3d 964.

DISCUSSION

{13} Father raises two arguments on appeal. First, Father argues that the district court refused to apply the appropriate burden of proof under ICWA to terminate his parental rights. Second, Father argues that because CYFD failed to provide him a reasonable accommodation under the Americans with Disabilities Act (ADA), it did not meet ICWA's active efforts requirement. This appeal provides us an opportunity to explain how Maisie Y. impacts not only Father's case, but all ongoing cases pending in district court and those on direct appeal as of March 3, 2021—the date on which Maisie Y. was published.

{14} We ordered supplemental briefing on a number of questions regarding application of our holdings in Maisie Y. to Father's appeal, including (1) whether the presumption of retroactivity in civil cases also applies in abuse and neglect cases; (2) if so, whether that presumption is overcome; (3) even though Father did not preserve the issues he raises on appeal, whether the holdings in Maisie Y. require reversal; and (4) if the holdings in Maisie Y. were to be applied to Father's case, what the appropriate remedy is on remand. We address each question in turn.

I. The Presumption of Retroactivity Applies to Abuse and Neglect Cases

{15} As a matter of first impression in New Mexico we first address whether the presumption of retroactivity that applies to civil cases also applies to cases under the ANA.⁴ Before doing so, we pause briefly to summarize some general principles of New Mexico law regarding retroactivity.

{16} Retroactivity refers to how a new rule of law announced by an appellate court should be applied to other cases. See id. ¶ 1 (describing how a new rule of law should be applied is "one of the great jurisprudential debates of the twentieth century"). " ‘Retroactivity’ jurisprudence is concerned with whether, as a categorical matter, a new rule is available on direct review as a potential ground for relief[.]" 21 C.J.S. Courts § 196 (2021).

{17} Generally, three options are available to an appellate court as it considers how a new rule of law should apply. First, a new rule of law can have pure prospective effect meaning that the new rule applies only to conduct occurring after the decision; in other words, the new rule would "not even apply to the litigants before the court announcing the decision." Beavers , 1994-NMSC-094, ¶ 18 n.7, 118 N.M. 391, 881 P.2d 1376. Second, a new rule of law can have retroactive effect wherein "a decision applies not only to acts occurring after announcement of the decision and to the litigants before the court, but also to acts occurring before the announcement." Id. And third, a new rule of law can apply with selective or modified prospective effect, meaning that the new rule applies "to the parties in the case in which the decision is announced, whose conduct obviously occurred before the announcement of the decision, but thereafter only to parties whose conduct occurs after the announcement." Id.

{18} Because we have already applied our holdings in Maisie Y. to Mother, implicitly rejecting purely prospective application of those holdings, the question before us here is whether to apply Maisie Y. with retroactive effect or with selective prospective effect. To answer that question, we must determine whether to begin our analysis with a presumption of retroactivity.

{19} In civil cases, our courts presume retroactive application of new rules. See Rodriguez v. Brand W. Dairy , 2016-NMSC-029, ¶ 45, 378 P.3d 13 (citing Beavers , 1994-NMSC-094, ¶¶ 20-22, 118 N.M. 391, 881 P.2d 1376 ). In Beavers , our Supreme Court explained that this presumption was adopted "[b]ecause of the compelling force of the desirability of treating similarly situated parties alike[.]" 1994-NMSC-0...