In re Esther V.

Esther V. was an Indian child who lived with her mother (defendant). In August 2007, the New Mexico Children, Youth, and Families Department (state) (plaintiff) filed an abuse-and-neglect petition in the state district court, supported by an affidavit alleging that the state had made active efforts to avoid removing Esther from her home, pursuant to § 1912(d) of the Indian Child Welfare Act (ICWA). Section 1912(d) placed an evidentiary burden on the state to satisfy the court that the state made active efforts to provide Esther’s family with services designed to prevent the breakup of her family and that those efforts were unsuccessful. The court entered an ex parte order placing Esther in the state’s custody. The order recited that the state had met its § 1912(d) requirement, which the mother disputed in the response that she filed afterwards. The next step in the procedure of Esther’s matter was an initial custody hearing to determine who would have custody of Esther until the adjudicatory hearing. The court did not address the § 1912(d) requirement at the initial custody hearing, but the mother agreed for the state to retain custody until the adjudicatory hearing. At the adjudicatory hearing, the court found that the mother neglected Esther but did not address the § 1912(d) requirement. The mother appealed to the New Mexico Court of Appeals, arguing that the court should have addressed the § 1912(d) requirement at the adjudicatory hearing. The state argued that it met its § 1912(d) burden when the court entered the ex parte order. The court of appeals agreed with the state on the § 1912(d) issue but agreed with the mother on other issues. The state petitioned the New Mexico Supreme Court for review on other issues, and the mother cross-petitioned for review on the issue of § 1912(d).