| (Cite
as: 107 N.M. 341, 757 P.2d 1333)
Court
of Appeals of New Mexico.
In
the Matter of the Termination of Parental Rights of WAYNE
R.N. and Rebecca
R.N.,
with respect to Mikul R.N. and Wayne R.N., Jr., Children.
STATE
of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT, Petitioner-Appellee,
v.
WAYNE
R.N. and Rebecca R.N., his wife, Respondents-Appellants.
No.
10212.
June 2, 1988.
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Jennifer A. Salisbury, Gen. Counsel, Susan K. Rehr, Ernest Pacheco, Assistants
Gen. Counsel, Human Services Dept., Santa Fe, for petitioner-appellee.
Robert S. Skinner, Raton,
for respondents-appellants.
Judy Lewis, Oklahoma Indian Legal Services, Oklahoma City, Okl., Gary
Alsup, Clayton, Guardian Ad Litem.
Mary Lou Carson, Indian
Pueblo Legal Services, Inc., San Juan Pueblo, for the Cheyenne and Arapaho
Tribes of Oklahoma, amicus curiae.
OPINION
MINZNER, Judge.
Respondents appeal from
the judgment of the trial court terminating their parental rights. Although
in other contexts New Mexico law requires that grounds for termination
be proved by clear and convincing evidence, In
re Adoption of Doe,
98 N.M. 340, 648 P.2d 798 (Ct.App.1981), in termination proceedings involving
parental rights to a child subject to the Indian Child Welfare Act, the
grounds for termination must be proved by evidence beyond a reasonable
doubt. See
NMSA 1978, § 32-1-54(D) (Repl.1986) and 25 U.S.C. § 1912(f)
(1982). On appeal, respondents contend (1) that the trial court was required
to transfer this case to the tribal court of the Cheyenne and Arapaho
Tribes of Oklahoma; (2) that the evidence is insufficient to establish
that the respondents are not and cannot be adequate parents of their children;
and (3) that the Department of Human Services (department) failed to use
reasonable efforts to assist them in adjusting the conditions rendering
them unable to properly
care for the children. § 32-1-54(B)(3). We affirm.
Wayne R.N., the father
of the two children involved in this case, is an enrolled member of the
Cheyenne and Arapaho Tribes of Oklahoma (the Tribes). Rebecca R.N., his
wife and the mother of the two children, is not Indian. They live in Colfax
County, New Mexico. One of the children was in the custody of the department
when the department petitioned to terminate respondents' rights; the other
child was in respondents' custody. Respondents are the parents of two
other children, as to whom parental rights were terminated in a prior
proceeding. It is undisputed that the children are enrolled or entitled
to be enrolled in the Tribes, and thus the Indian Child Welfare Act of
1978 (ICWA) is applicable. See
25 U.S.C. §§ 1901-1963 (1982).
The application for termination
of parental rights was filed January 15, 1987. A copy of the application
was served on the Tribes by serving Judy Lewis, the attorney for the Tribes.
The petition alleged the Tribes were aware of the proceedings and had
found an adoptive home for one of the children. On January 26, 1987, the
trial court appointed a guardian ad litem for the children and counsel
for the parents. The hearing on the merits was held on several days in
July and August 1987, due to the court's crowded docket.
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*343
At the beginning of the hearing on the merits, respondents petitioned
the court to transfer the case to the tribal court of the Cheyenne and
Arapaho Tribes at Concha, Oklahoma. The state's attorney and the guardian
ad litem for the children both objected to the transfer. The trial court
held a hearing on the issue of whether the case should be transferred.
Lewis testified that
she had represented the Tribes in ICWA cases for four years. She stated
the Tribes were opposed to a transfer to the tribal court at that point
in the proceedings. She noted that the Tribes have a policy against accepting
transfers of cases in which the child, the parents, the witnesses, and
all the evidence were in another state. In her opinion, if the trial court
were to decide to transfer the case to the tribal court, the Tribes would
decline jurisdiction. On cross-examination, she indicated that the Tribes
had taken no formal action to decline jurisdiction in the case.
Terry Love, the Tribes'
social worker, testified she was authorized by the Tribes' business council
to act for the Tribes in ICWA cases. She further testified that, in her
opinion, if the state trial court granted the petition to transfer, the
Tribes would decline jurisdiction.
At the end of the hearing,
the trial court declined to transfer the case to the tribal court. The
trial court noted on the record that the petition was not timely and that
there was no reasonable likelihood the Tribes would accept jurisdiction.
In its formal findings and conclusions, the trial court found the Tribes
had been notified and had agreed to jurisdiction in the state court.
On appeal, respondents argue that the transfer provision of the Indian
Child Welfare Act is mandatory, and, since the Tribes have not taken formal
action to decline jurisdiction, it was error for the trial court to refuse
to transfer the matter. We disagree.
The Indian Child Welfare
Act provides, in pertinent part:
In
any State court proceeding for the foster care placement of, or termination
of parental rights to, an Indian child not domiciled or residing within
the reservation of the Indian child's tribe, the court, in
the absence of good cause to the contrary,
shall transfer such proceeding to the jurisdiction of the tribe, absent
objection by either parent, upon the petition of either parent or the
Indian custodian or the Indian child's tribe: Provided,
That such transfer shall be subject to declination by the tribal court
of such tribe.
25 U.S.C. § 1911(b) (emphasis added).
Once a petition to transfer
a matter to tribal court is filed as contemplated by the Act, the state
court must hold a hearing on the petition, and determine whether or not
to transfer the matter. In
re G.L.O.C.,
205 Mt. 352, 668 P.2d 235 (1983); In
re M.E.M.,
195 Mt. 329, 635 P.2d 1313 (1981). At the hearing, the party opposing
transfer has the burden of establishing that good cause not to transfer
the matter exists. In
re M.E.M. If
the state trial court determines the party opposing the transfer has
established good cause not to transfer, the state trial court may deny
the petition. If, however, the state trial court grants the petition,
the tribal court must determine whether to accept or decline jurisdiction.
The determination of
whether good cause not to transfer the proceedings exists will necessarily
be made on a case-by-case basis, after a careful consideration of all
the circumstances of the case. In this case, there are a number of factors
that support the trial court's decision not to transfer the case to the
tribal courts.
First of all, the request
to transfer the proceedings was made by respondents orally on the morning
the trial on the merits was to begin and almost six months after they
were served in these proceedings. The Department of the Interior has published
guidelines containing its interpretation of the ICWA. 44 Fed.Reg. 67584
*344
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(1979) (not codified). Although these guidelines are not binding, id.,
other courts have found particular provisions persuasive. See
In re M.E.M.; In re J.R.H.,
358 N.W.2d 311 (Iowa 1984). So do we.
The guidelines note that
one of the factors a state trial court should consider is whether the
petitioner filed the petition promptly after receiving notice of the hearing.
44 Fed.Reg. at 67591, ¶ C.3(b)(i). In the instant case, respondents
filed their petition approximately six months after they had been served
and had counsel appointed for them. This factor weighs against transfer
of the proceedings.
In addition, the respondents,
the children, and apparently all the witnesses who could testify concerning
respondents' actions and their effect on the children were all present
in New Mexico, while the relevant tribal court was located in Oklahoma.
If this case were to be transferred to the tribal court, the witnesses
would all be forced to travel to Oklahoma, at considerable expense and
difficulty. Moreover, the Tribes' attorney testified that the tribal court's
subpoena power was limited, and the tribal court would not be able to
subpoena witnesses in New Mexico. Other states have recognized that in
these circumstances good cause to deny a transfer to the tribal court
may exist. In
re J.R.H.; In re Bird Head,
213 Neb. 741, 331 N.W.2d 785 (1983); see
also In re Adoption of Baby Boy L.,
231 Kan. 199, 643 P.2d 168 (1982) (dicta). These holdings are in line
with the position of the Department of the Interior on the interpretation
of the Indian Child Welfare Act. See
44 Fed.Reg. at 67591, ¶ C.3(b)(iii).
Similarly, the legislative
history states Section 1911(b) was designed to "permit a State court
to apply a modified doctrine of forum
non conveniens,
in appropriate cases, to insure that the rights of the child as an Indian,
the Indian parents or custodian, and the tribe are fully protected."
H.R.Rep. No. 1386, 95th Cong., 2d Sess., reprinted
in 1978 U.S.Code
Cong. & Admin. News
7530, 7544. In determining whether the doctrine of forum
non conveniens
should be invoked, the trial court should consider the practical factors
that make trial of a case easy, expeditious, and inexpensive, such as
the relative ease of access to sources of proof, the cost of obtaining
attendance of witnesses, and the ability to secure attendance of witnesses
through compulsory process.
See State ex rel. Southern Pac. Transp. Co. v. Frost,
102 N.M. 369, 695 P.2d 1318 (1985). In this case, all these factors favor
trying the merits in New Mexico.
Finally, the Tribes had
representatives present at the hearing who were in a position to protect
and advance their interests in the proceedings. The Tribes' attorney stated
the Tribes were opposed to the transfer. The Tribes' social worker could
and did testify concerning childrearing practices of the Tribes. The presence
in New Mexico of these representatives and the assistance they provided
to the trial court in this matter minimized the danger that the respondents'
rights would be terminated on the basis of conduct that would have been
acceptable to the Tribes, or that the Tribes' rights would be overlooked
or impaired during the proceedings.
Under these circumstances,
there was good cause not to transfer the case to the tribal court of the
Cheyenne and Arapaho Tribes of Oklahoma. Respondents argue that the trial
court did not make a finding that good cause existed, but rather that
the Tribes had agreed to the state court's exercise of jurisdiction over
this case. The form of the findings does not control. This court
will uphold the judgment of the trial court if it is right for any reason.
State v. Beachum,
83 N.M. 526, 494 P.2d 188 (Ct.App.1972). The factors upon which we have
based our decision were undisputed before the trial court. In addition,
the trial judge's remarks on the record indicate he had determined that
good cause existed not to transfer. An appellate court may look to the
remarks or opinions of the trial judge for clarification of ambiguities,
as long as such remarks or **1337
*345
opinions are not made the basis for error on appeal. Ledbetter
v. Webb, 103
N.M. 597, 711 P.2d 874 (1985). In these circumstances, it would be useless
to remand the case for findings of fact by the trial court. Wright
v. Brem, 81
N.M. 410, 467 P.2d 736 (Ct.App.1970) (the function of an appellate court
is to correct an erroneous result and not to correct errors which, even
if corrected, would not change the result below).
The trial court found,
among other things, that both children suffered from deprivation syndrome
and that this was causally connected to respondents' behavior. Respondents
contend the evidence before the trial court was insufficient to support
a finding beyond a reasonable doubt that the conditions and causes of
the neglect and abuse were unlikely to change in the foreseeable future.
In the alternative, respondents contend the evidence is insufficient to
support a finding that the department made reasonable efforts to assist
them in adjusting the conditions which render them unable to properly
care
for the children.
It is for the trial court
to weigh the evidence, resolve conflicts in the testimony, and determine
where the truth lies. On appeal, this court may not substitute its judgment
for that of the trial court. In
re Adoption of Doe.
Instead, this court views the evidence in the light most favorable to
the prevailing party, and determines if the mind of the fact finder could
properly have reached an abiding conviction as to the truth of the fact
or facts found. Id.
Applying that standard, and based on our review of the record, we hold
substantial evidence exists to establish beyond a reasonable doubt grounds
for terminating the parental rights of respondents. See
id.; 25 U.S.C.
§ 1912(f).
With respect to the likelihood
of change, two psychologists, a psychotherapist, a behavioral pediatrician,
and all three caseworkers involved with the family unanimously testified
that, in their opinion, respondents would not change their childrearing
practices in the foreseeable future. Respondents both testified that they
saw nothing wrong with their childrearing practices and did not feel any
need to change. This evidence is sufficient to support a finding that
the conditions and causes of neglect and abuse were unlikely to change.
See In re Adoption
of Doe; §
32-1-54(B)(3).
The efforts made by the
department to remedy the causes of the neglect showed the department's
efforts included the assistance of two social workers and
a trained homemaker. Respondents' caseworker provided considerable assistance
in the form of financial assistance and assistance with transportation.
She also counseled them to some extent. The trained homemaker made over
thirty-five visits to the home, in an effort to teach respondents minimum
standards of homemaking and sanitation. These efforts were made over a
three-year period and were augmented by the efforts of other agencies,
which provided counseling concerning substance abuse. The trial court's
finding that the department made reasonable efforts to assist respondents
is also supported by substantial evidence. See
In re Termination of Parental Rights of Reuben & Elizabeth O.,
104 N.M. 644, 725 P.2d 844 (Ct.App.1986); In
re Adoption of Doe;
§ 32-1-54(B)(3).
The judgment of the trial
court terminating the parental rights of respondents is affirmed.
IT IS SO ORDERED.
BIVINS and ALARID, JJ.,
concur.
107 N.M. 341, 757 P.2d
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