Analysis

Synopsis:

 CS 2 Synopsis March 08, 2021:

HSEICcs2/HHHCcs1/HB 209: The House State Government, Elections and Indian Affairs Committee, committee substitute number 2 replaces House Health and Human Services Committee, committee substitute number 1 for House Bill 209. This committee substitute number 2 amends, repeals and enacts sections of the NMSA 1978. This committee substitute enacts the State Indian Child Welfare Act. It consolidates provisions specific to child custody proceedings involving Indian children into the State Indian Child Welfare Act. It provides additional requirements governing child custody proceedings involving Indian children. It creates the office of Tribal Affairs within the Children, Youth and Families Department (CYFD). It requires a cultural component in case plans in abuse and neglect proceedings. The effective date of the provisions of this act is July 1, 2021.

CS 1 Synopsis March 01, 2021

HHHCcs1/HB 209: House Health and Human Services Committee, committee substitute for House Bill 209 enacts the State Indian Child Welfare Act. Consolidates provisions specific to child custody proceedings involving Indian children into the State Indian Child Welfare Act. Provides additional requirements governing child custody proceedings involving Indian children. Amends and repeals sections of the NMSA 1978. Section 8 of this act applies to tribal-state agreements that become effective on or after July 1, 2021. The provisions of this act apply to all open cases prior to July 1, 2021. The effective date of the provisions of this act is July 1, 2021

Original Synopsis January 30, 2021:

House Bill 209 (HB 209) enacts the State Indian Child Welfare Act under new sections of the Children's Code. HB 209 changes sections of the NMSA 1978. HB 209 consolidates provisions specific to child custody proceedings involving Indian children into the State Indian Child Welfare Act. HB 209 provides additional requirements governing child custody proceedings involving Indian children. HB 209 repeals Sections 32A-1-14 and 32A-3B-6.1 NMSA 1978. HB 209 provides definitions. The provisions of Section 7 are applicable to tribal-state agreements that become effective on or after July 1, 2021. The provisions of this act apply to all open cases prior to July 1, 2021. HB 209 is effective on July 1, 2021.

Analysis:

 House Bill 209 (HB 209) enacts new 30 new sections of the Children's Code. HB 209 changes several sections of the NMSA 1978, to comply with this act. This act will be called the State Indian Child Welfare Act.

Repealed Law (see current law section below for details on these two repealed sections):
•	Notice to Indian Tribes, Sections 32A-1-14 NMSA 1978.
•	Indian Child Placement-Preferences, Section, 32A-3B-6.1 NMSA 1978.

New Law:
•	Children's Code: Office of Tribal Affairs-Creation.
•	Creates the office of Tribal Affairs in the Children, Youth, and Families Department (CYFD). 
•	The office will be dedicated to ensuring the department's compliance with and full implementation of the federal Indian Child Welfare Act of 1978 and this State Indian Child Welfare Act.

New Law:
•	Children's Code: Indian Child Welfare Rules.
•	The CYFD and the court will promulgate rules to implement the provisions of the State Indian Child Welfare Act.

New Law: 
•	Children's Code: Determination of Domicile and Residence.
•	Requires the state court, in a child custody proceeding involving an Indian child, to determine and make an order of the domicile and residence of the Indian child and whether the Indian child is a ward of a tribal court.
•	Requires the Children, Youth, and Families Department (CYFD) to communicate with any tribal court as necessary to make a determination pursuant to this section.

New Law:
•	Children's Code: Indian Child's Domicile.
•	Under the State Indian Child Welfare Act, an Indian child's domicile is, in order of priority, the domicile of the child's: (A). parents, or, if the parents do not have the same domicile, the parent who has physical custody of the Indian child; (B). Indian custodian; or (C). guardian.

New Law:
•	Children's Code: Determination of Whether a Child is an Indian Child-Tribal Membership-Department Assistance.
•	Requires the CYFD, if a child is taken into custody by the department, to make active efforts to determine whether the child is an Indian child. 
•	Requires the CYFD, when an Indian child or a child who the department has reason to know is an Indian child, is placed in the custody of the department, the CYFD will work with the parent or the Indian tribe to establish membership, at the discretion of the parent or Indian tribe. 
•	Requires the Indian tribe to determine membership and eligibility. 
•	Requires the CYFD to provide records to assist if necessary, at the discretion of the parent or the Indian tribe.

New Law:
•	Children's Code: Indian Child Custody Proceedings-Jurisdiction-Transfer-Communications.
•	A state court's jurisdiction in a child custody proceeding involving an Indian child is concurrent with the jurisdiction of the Indian child's tribe; except as for provided in the State Indian Child Welfare Act.
•	A state court has temporary exclusive jurisdiction over an Indian child who is taken into protective custody pursuant to the Children's Code.
•	An Indian tribe has exclusive jurisdiction over a child custody proceeding involving an Indian child who resides or is domiciled within the reservation of the Indian tribe, except when jurisdiction is vested in the state by federal law or pursuant to a tribal-state agreement. 
•	When an Indian child is a ward of the tribal court, the Indian tribe will retain exclusive jurisdiction, notwithstanding the residence or domicile of the child. 

HB 209 requires the state court, in a state court proceeding for the foster care placement, pre-adoptive placement, guardianship placement, adoptive placement or termination of parental rights to an Indian child not domiciled or residing within the reservation of the Indian child's tribe, in the absence of good cause to the contrary, will:
•	transfer that proceeding to the jurisdiction of the Indian tribe, absent objection by either parent, upon the motion of either parent or the Indian custodian or the Indian child's tribe; provided the transfer will be subject to declination by the tribal court of that Indian tribe. 

HB 209 requires if a state court declines to exercise jurisdiction in accordance with this section or a tribal-state agreement, to coordinate with the appropriate tribal court to facilitate the tribal court's assumption of jurisdiction. 

HB 209 requires a state court to:
•	(1) hold a hearing on record; 
•	(2) allow each parent of the Indian child, the Indian child's custodian or the Indian child's tribe to participate in any communications pertaining to jurisdiction with a tribal court or, if that person is unable to participate in a communication, provide the person with an opportunity to represent facts and legal arguments supporting the person's position before the state court makes a decision regarding jurisdiction;
•	(3) create and maintain a record of any communications made pursuant to this subsection; 
•	(4) notify each parent of the Indian child, the Indian child's custodian or the Indian child's tribe in advance of each communication; and 
•	(5) provide each parent of the Indian child, the Indian child's custodian or the Indian child's tribe with access to the record of the communication.

New Law:
•	Children's Code: Tribal-State Agreements.
•	Requires the CYFD to make a good faith effort to enter into a tribal-state agreement with each Indian tribe within the borders of this state. 
•	Allows the CYFD to enter into a tribal-state agreement with any Indian tribe outside of this state if that Indian tribe has a significant number of children residing in this state who are members of or are eligible to become members of that Indian tribe. 

HB 209 allows a tribal-state agreement to include an agreement regarding: 
•	(1) default jurisdiction over cases in which the state court and tribal court have concurrent jurisdiction; (2) the transfer of cases between a state court and tribal court; (3) the assessment, removal, placement and custody of Indian children; and (4) any other child welfare services provided to Indian children. 

HB 209 requires a tribal-state agreement to: 
•	(1) provide for cooperative delivery of child welfare services to Indian children in this state, including the use, to the extent available, of services provided by the Indian tribe; and 
•	(2) if services provided by the Indian tribe are unavailable, provide for the CYFD's use of community services and resources developed specifically for Indian families and that have demonstrated experience and capacity to provide culturally relevant and effective services to children.

New Law:
•	Children's Code: Transfer.

HB 209 requires a state court, upon granting a transfer motion for a child custody proceeding involving an Indian child pursuant to Subsection D of Section 6 of the State Indian Child Welfare Act, to expeditiously: 

(A). notify the tribal court of the pending dismissal of the child custody proceeding; 
(B). transfer all information regarding the child custody proceeding, including pleadings and court records, to the tribal court; 
(C). direct the CYFD to: 
•	(1) coordinate with the tribal court and the Indian child's tribe to ensure that the transfer of the child custody proceeding is accomplished with minimal disruption of services to the Indian child and the Indian child's family; and 
•	(2) provide the Indian child's tribe with documentation related to the Indian child's eligibility for state and federal assistance and information related to the Indian child's social history, treatment diagnosis and services and other relevant case- and service-related data; and 
•	Dismiss the proceeding upon confirmation from the tribal court that the tribal court received the transferred information.

New Law:
•	Children's Code: Full Faith and Credit-Right to Services.

HB 209 requires: 
•	Every agency and court of the state or political subdivision of the state to give full faith and credit to the public acts, records and judicial proceedings of an Indian tribe applicable to an Indian child custody proceeding, to the same extent that agency or court gives full faith and credit to the public acts, records and judicial proceedings of any other entity. 
•	A tribal court order pertaining to an Indian child in an action under the Children's Code to be recognized and enforced by the state district court. 
•	The recognition and enforcement by a state district court to make the tribal court order recognized and enforceable throughout the state by state district court as any state court order. 
•	A tribal court order pertaining to an Indian child that accesses state resources to be recognized and enforced.
•	An Indian child residing on or off a reservation, as a resident of this state, to have the same right to services that are available to other children of this state. 
•	The cost of the services provided to an Indian child to be determined and provided for in the same manner as services are made to other children of the state, utilizing tribal, state and federal funds. 
•	Any state services requiring a tribal-state agreement based on a funding source to be negotiated and entered into based on good faith to meet the provisions of Subsection C of this section.

New Law:
•	Children's Code: Improper Removal of a Child from Custody-Declination of Jurisdiction-Return of a Child-Danger Exception.

HB 209 requires the state court to, when a petitioner in an Indian child custody proceeding before a state court has improperly removed the child from custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody:
•	decline jurisdiction over that petition and return the child to the child's parent or Indian custodian unless returning the child to the child's parent or Indian custodian could subject the child to a substantial and immediate danger or threat of that danger.

New Law:
•	Children's Code: Investigations-Pending Court Proceedings-Notice-Documentation of Applicability and Compliance.

HB 209 requires the CYFD, within forty-eight hours of initiating an investigation that involves a child that the department knows or has reason to know is an Indian child, to notify the Indian child's tribe of: 
•	(1) the investigation; 
•	(2) the involvement of the Indian child or a child the department has reason to know is an Indian child; 
•	(3) the department's obligation to collaborate with the Indian child's tribe to identify a qualified expert witness to participate in the proceeding if the investigation results in an adjudicatory proceeding; and 
•	(4) the department's obligation to identify a qualified expert witness no later than thirty days prior to an adjudicatory or termination proceeding. 

HB 209 requires the court, at the beginning of every proceeding under the Delinquency Act, Family Services Act, Family in Need of Court-Ordered Services Act, Abuse and Neglect Act and Adoption Act, to:
•	make a written determination as to whether the federal Indian Child Welfare Act of 1978 and the State Indian Child Welfare Act apply to the case. 

HB 209 requires the CYFD, upon initiating a child custody proceeding related to a child that the department knows or has reason to know is an Indian child, to notify the Indian child's tribe of: 
•	(1) the investigation; 
•	(2) the involvement of the Indian child; 
•	(3) active efforts that have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful; 
•	(4) the department's obligation to collaborate with the Indian child's tribe to identify a qualified expert witness to participate in the proceeding if the investigation results in an adjudication or termination of parental rights proceeding; and 
•	(5) the department's obligation to identify a qualified expert witness no later than thirty days prior to an adjudication or termination proceeding. 

HB 209 requires the record, with respect to proceedings to which the federal Indian Child Welfare Act of 1978 and the State Indian Child Welfare Act apply: 
•	to include written statements of compliance with those acts regarding notice, evidentiary and other requirements. 

HB 209 requires the CYRD, in a child custody proceeding or in a proceeding pursuant to the Delinquency Act, when the state court knows or has reason to know that an Indian child is involved, to notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of: 
•	(1) the pending proceedings; 
•	(2) the right of the Indian child's parent, Indian custodian or Indian child's tribe to: (a) intervention; and (b) petition the state court to transfer the proceeding to the tribal court; (3) the right of the Indian child's parent or Indian custodian to court-appointed counsel if the state court determines that person is unable to afford counsel; and (4) the right of the Indian child's tribe, as a party to the child custody proceeding, to participate in the proceeding. 

HB 209 requires the state court if there is a reason to know that the Indian child's parent or Indian custodian has limited English proficiency and may not understand the contents of the notice pursuant to Subsection E of this section, to:
•	provide language access services as required by Title VI of the federal Civil Rights Act of 1964 and other applicable federal and state laws. 

HB 209 requires the state court if the state court is unable to secure translation or interpretation support, to:
•	contact or direct a party to contact the Indian child's tribe or the local office of the United States Department of the Interior Bureau of Indian Affairs for assistance identifying a qualified translator or interpreter. 

HB 209 requires a notice to be given to the secretary in the same manner as provided in Subsection E of this section if the identity or location of the parent or Indian custodian and the Indian tribe cannot be determined.
•	The secretary will have fifteen days after receipt of the notice to provide the same notice to the parent or Indian custodian and the Indian tribe. 

HB 209 prohibits a foster care placement or termination of parental rights proceeding from being held until:
•	at least ten days after receipt of notice by the parent or Indian custodian and the Indian tribe or the secretary pursuant to this section; provided the parent or Indian custodian or the Indian tribe will, upon request, be granted up to twenty additional days to prepare for that proceeding. 

HB 209 stipulates that nothing in this section prevents a state court from reviewing a removal of an Indian child from the child's parent or Indian custodian at an emergency custody proceeding before the expiration of the waiting periods provided in Subsections G and H of this section to determine the appropriateness of the removal and potential return of the child.

New Law:
•	Children's Code: Right to Intervene.

HB 209 states that in a state court proceeding for the foster care placement or pre-adoptive placement, guardianship placement, adoptive placement of or termination of the parental rights to an Indian child: 
•	only the Indian child's relative or a member of the Indian child's extended family, the Indian custodian of the child, and the Indian child's tribe have a right to intervene at any point in the proceeding.

New Laws:

HB 209 also creates the following sections of law under the Children's Code (see original act for details):
•	Petition-Form and Content.
•	State Court Record of Indian Child's Tribe.
•	Child Custody Hearings-Requirements-Right to Counsel.
•	Qualified Expert Witness.
•	Parental Rights-Voluntary Termination-Consent-Withdrawal-Fraud or Duress.
•	Petition to Court of Competent Jurisdiction to Invalidate Action.
•	Placement Preferences-Adoption-Placement of Indian Children-Required Training.
•	Change in Placement-Placement Preference-Department Duties.
•	Pre-adoptive, Adoptive and Guardianship Placements-Maintenance of Culture-Cultural Compacts.
•	Dispositional Judgments.
•	Return of Custody.
•	Best Interests of Indian Child.
•	Tribal Affiliation and Other Information.
•	Adoption Decrees-Information Availability.
•	Emergency Removal or Placement of an Indian Child-Termination-Appropriate Action.
•	State Indian Child Welfare Act Supplemental to other Provisions of Law-Conflict of Laws.

Changed Law: 
•	Please see the original act for changes made to the NMSA 1978, to conform those laws to this act.

New Definitions:

HB 209 creates 22 new definitions for this act. 
•	Please see the original act for details, listed under Section 2.

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