A. An Indian child accepted for foster care or pre-adoptive placement shall be placed in the least restrictive setting that most closely approximates a family in which his special needs, if any, may be met. The Indian child shall also be placed within reasonable proximity to the Indian child's home, taking into account any special needs of the Indian child. In any foster care or pre-adoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with:
(1) a member of the Indian child's extended family;
(2) a foster care home licensed, approved and specified by the Indian child's tribe;
(3) an Indian foster care home licensed or approved by an authorized non-Indian licensing authority; or
(4) 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.
B. When the placement preferences set forth in Subsection A of this section are not followed or if the Indian child is placed in an institution, a plan shall be developed to ensure that the Indian child's cultural ties are protected and fostered.
History: 1978 Comp., § 32A-4-9, enacted by Laws 1993, ch. 77, § 103.
ANNOTATIONSThe New Mexico Abuse and Neglect Act has incorporated the federal Indian Child Welfare Act's placement preferences. — The New Mexico Abuse and Neglect Act has incorporated the federal Indian Child Welfare Act's placement preferences, the overarching concern of which is the maintenance of the family and tribal relationships existing in Indian homes. State ex rel. Children, Youth & Families Dep't v. Casey J., 2015-NMCA-088.
Determining "good cause" for deviating from placement preferences. — Absent good cause to the contrary, foster care placement shall be with the preferences listed in this section. 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. 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. The party seeking to deviate from the placement preferences bears the burden of establishing the existence of good cause to do so. State ex rel. Children, Youth & Families Dep't v. Casey J., 2015-NMCA-088.
Where Indian children were taken into custody and placed into foster care by the children, youth and families department (department) due to ongoing concerns related to each parent's issues with substance abuse and domestic violence, the district court did not err in finding that the federal Indian Child Welfare Act's (ICWA) placement preferences had not been followed, but that good cause existed to deviate from the ICWA placement preferences based on evidence that the department was unable to find a suitable relative or Native American placement for children, that the department made active efforts to comply with the ICWA placement preferences, that there was no objection to the placement by the Navajo Nation, and that the children's cultural, physical, mental, and emotional needs were being addressed through the children's treatment plans, despite the unavailability of ICWA preferred placements. State ex rel. Children, Youth & Families Dep't v. Casey J., 2015-NMCA-088.
Due process required. — Process is due when a proceeding affects or interferes with the parent-child relationship. 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. Casey J., 2015-NMCA-088.
Where Indian children were taken into custody and placed into foster care by the children, youth and families department (department) due to ongoing concerns related to each parent's issues with substance abuse and domestic violence, father's due process rights were not violated where father's claimed that his procedural due process rights were violated during a termination of parental rights proceeding, but the claim was factually based on the department's placement of children during the pendency of the neglect proceedings, rather than his notice and opportunity to participate in the termination proceedings. State ex rel. Children, Youth & Families Dep't v. Casey J., 2015-NMCA-088.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Construction and application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. §§ 1901 et seq.) upon child custody determinations, 89 A.L.R.5th 195.