ICWA Notice {10-521}

10-521. ICWA notice. [For use with Rules 10-312 and 10-315 NMRA]STATE OF NEW MEXICOCOUNTY OF JUDICIAL DISTRICTIN THE CHILDREN222S COURTSTATE OF NEW MEXICO ex rel.CHILDREN, YOUTH AND FAMILIES DEPARTMENTNo. In the Matter of, (a) Child(ren), and Concerning, , Respondent(s).ICWA NOTICE AS TO (CHILD(REN))1COMES NOW the New Mexico Children, Youth and Families Department (CYFD) by, Children222s Court Attorney, and gives the following notice under 25 U.S.C. 2471912(a) and 25 C.F.R. 247247 23.11 and 23.111:1.An Abuse/Neglect Petition was filed in County, New Mexico, Judicial District Court on , in the above-captioned and numberedcause.2. (name of child(ren)), is/are unmarried, under eighteen (18)years of age, and may be [ ]member(s) of the tribe(s); or[ ] eligible for membership in the tribe(s) and the biologicalchild(ren) of member(s) of the tribe(s).3.The child(ren) is/are, or there is reason to know2 that the child(ren) is/are, [an]Indian child(ren) based on the following information:.4.This proceeding may result in the termination of the parental and/or custodialrights of the child(ren)222s parents and/or Indian custodian(s).5.The following information about (name of child(ren)) isknown (repeat or modify as necessary if more than one child):a.Full name of child ;i.Birth date ;ii.Birthplace ; American LegalNet, Inc. www.FormsWorkFlow.com b.Full name of child222s biological mother (including maiden, married, andformer names or aliases) ;i.Birth date ;ii.Place of birth and death (if applicable) ;iii.Tribal enrollment number ;iv.Other identifying information ;v.All known current and former addresses ;c.Full name of child222s biological father (including married and formernames or aliases) ;i.Birth date ;ii.Place of birth and death (if applicable) ;iii.Tribal enrollment number ;iv.Other identifying information ;v.All known current and former addresses ;d.(Provide the information above, if known, for the child222s other directlineal ancestors, such as grandparents).6.The child(ren) is/are currently in the custody of CYFD, and contact with CYFDmay be made by contacting either undersigned counsel or , the child(ren)222scase worker, at (address) or at the followingtelephone number: .7.The child(ren) is/are currently placed in (type ofplacement, e.g., non-relative foster care).8.The Indian child(ren)222s parent(s), Indian custodian(s), and tribe(s) have the rightto intervene in this case.9.If the Indian child(ren)222s parent(s) or Indian custodian(s) is/are unable to affordcounsel, counsel will be appointed upon a finding of indigency.10.The address and telephone number of the Judicial District Court for County, New Mexico is: . Thecause is assigned to the Honorable .11.The Indian child(ren)222s parent(s), Indian custodian(s), and tribe(s) shall have theright to petition the court for transfer of the proceeding to the Tribal court as provided by 25U.S.C. 247 1911 and 25 C.F.R. 247 23.115. 12.You must keep confidential the information contained in this notice, and thisnotice should not be handled by anyone not needing the information to exercise rights underICWA.13.Except for emergency proceedings, no hearing on the petition in the involuntarychild custody proceeding shall be held sooner than ten (10) days from the date of receipt of this American LegalNet, Inc. www.FormsWorkFlow.com notice by the Indian child(ren)222s parent(s), Indian custodian(s), and tribe(s). The Indianchild(ren)222s parent(s), Indian custodian(s), and tribe(s) have the right to be granted, upon request,up to twenty (20) additional days to prepare for the child custody proceedings.314.The Indian child(ren)222s parent(s), Indian custodian(s), and tribe(s) shall have theright to request up to twenty (20) additional days to prepare for a hearing on the petition.15.Request is hereby made of the tribe(s) to respond to theundersigned or to the Court if and when ICWA may be applicable to this action, and theundersigned will distribute to the parties of record and to the Court.Name of Attorney, CCACYFD Protective ServicesAddressTelephone NumberCERTIFICATE OF MAILING4I hereby certify that a true and correct copy of this Notice, along with a copy of theAbuse/Neglect Petition and Affidavit of , were sent by registered/certifiedmail, return receipt requested, to (check all that apply)[ ]the designated Tribal Agent5 of the tribe(s) at (address); [ ] (name of parent/Indian custodian) at (address); [ ]the appropriate Regional Director of the Bureau of Indian Affairs6 at (address).Name of Attorney, CCAUSE NOTE1.This form is intended for use in the early stages of a child-custody proceeding. SeeRule 10-315 (F)(1)(c) NMRA (providing that the court shall ensure that the department providesnotice under ICWA when the court determines at a custody hearing that the child is an Indianchild or that there is reason to know that the child is an Indian child); see also Rule 10-312NMRA (providing that the department shall provide the notice required under ICWA of the filingof the petition when the child is enrolled or eligible for enrollment in an Indian tribe). This formshould be modified as necessary when the duty to provide notice under ICWA arises later in theproceeding. See Rule 10-315(G) (providing that the court shall order the participants to informthe court if they receive information after the custody hearing that provides reason to know thatthe child is an Indian child).2.See 25 C.F.R. 247 23.107(c) and Rule 10-315(E) NMRA for circumstances that American LegalNet, Inc. www.FormsWorkFlow.com provide reason to know that the child is an Indian child. 3.The law is unsettled about whether the time-related restrictions set forth in thisparagraph, which are required under ICWA, 25 U.S.C. 247 1912(a), apply to ex parte and custodyhearings. The Supreme Court has held that ex parte and custody hearings are emergencyproceedings under ICWA and therefore are exempt from the requirements of 247 1912. See State exrel. Children, Youth and Families Dep222t v. Marlene C., 2011-NMSC-005, 34, 149 N.M. 315,248 P.3d 863 (223New Mexico222s ex parte and custody hearings are emergency proceedings under[25 U.S.C.] 247 1922 to which the requirements of [25 U.S.C.] 247 1912 do not apply.224). Recently adopted federal regulations, however, clarify the standards imposed inemergency proceedings under ICWA and are difficult to reconcile with the procedures allowedunder New Mexico law. Compare, e.g., 25 C.F.R. 247 23.113(b) (providing that the emergencyremoval or placement of an Indian child must be based on a finding that the removal orplacement 223is necessary to prevent imminent physical damage or harm to the child224), and id. 24723.113(e) (providing that an emergency proceeding should not be continued for more than 30days without a finding, inter alia, that 223restoring the child to the parent or Indian custodianwould subject the child to imminent physical damage or harm224), with NMSA 1978, 24732A-4-18(C) (providing that custody may be awarded to the department based upon a showingthat, inter alia, 223the child will be subject to injury by others if not placed in the custody of thedepartment224), and id. 247 32A-4-19(A) (providing that an adjudicatory hearing shall commencewithin 60 days of service on the respondent).Regardless of the continued validity of Marlene C., the committee views the newregulations, taken as a whole, as a directive to engage potentially interested Tribes as early aspossible in a child-custody proceeding in which an Indian child may be affected. See 25 C.F.R. 24723.101. The committee therefore encourages all participants in an abuse and neglectproceeding-including the court-to work with and accommodate the needs of interested Tribes tothe fullest extent possible under the circumstances.4.ICWA and its regulations require this Notice to be sent via registered or certifiedmail, return receipt requested, to the individuals identified in the certificate of mailing. See 25C.F.R. 247247 23.11, 23.111(c). A copy of this Notice also must be served on the parties, as requiredby Rule 10-104 NMRA. 5.The CCA must send a copy of this Notice to the designated Tribal Agent of theIndian child222s tribe(s), who may be