{ "id": 3784538, "name": "Gloria B. CHERINO, Petitioner-Appellant, v. Samuel A. CHERINO, Respondent-Appellee", "name_abbreviation": "Cherino v. Cherino", "decision_date": "2007-12-18", "docket_number": "No. 26,970", "first_page": "452", "last_page": "454", "citations": [ { "type": "official", "cite": "143 N.M. 452" }, { "type": "parallel", "cite": "176 P.3d 1184" }, { "type": "parallel", "cite": "2008-NMCA-024" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "435 N.W.2d 717", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10669029 ], "pin_cites": [ { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/nw2d/435/0717-01" ] }, { "cite": "2000 ND 144", "category": "reporters:state", "reporter": "ND", "case_ids": [ 11247040 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/nw2d/613/0516-01" ] }, { "cite": "874 F.2d 510", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1816627 ], "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/f2d/874/0510-01" ] }, { "cite": "25 U.S.C. \u00a7 1903", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "(l)(i)" } ], "opinion_index": 0 }, { "cite": "25 U.S.C. \u00a7 1911", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "107 N.M. 810", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597143 ], "weight": 2, "pin_cites": [ { "page": "811" }, { "page": "1179" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0810-01" ] }, { "cite": "116 N.M. 416", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727721 ], "weight": 4, "pin_cites": [ { "page": "417" }, { "page": "452" }, { "page": "419" }, { "page": "454", "parenthetical": "stating that the Bureau of Indian Affairs Guidelines are persuasive authority" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0416-01" ] }, { "cite": "2000-NMCA-079", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217155 ], "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 1, 2" }, { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0512-01" ] }, { "cite": "1998-NMCA-008", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 17109 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0405-01" ] }, { "cite": "2002-NMSC-012", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260734 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0207-01" ] }, { "cite": "25 U.S.C. \u00a7 1901", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "year": 2007, "pin_cites": [ { "page": "(3)" }, { "page": "(4)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 544, "char_count": 9986, "ocr_confidence": 0.667, "pagerank": { "raw": 1.0531316478359456e-07, "percentile": 0.5544510510072209 }, "sha256": "d6b790450008b3b4197ef9342c80b6e39258dccb8e5edb1e5902b00ecad15e19", "simhash": "1:191a132a2a8b770b", "word_count": 1605 }, "last_updated": "2023-07-14T16:34:50.796486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: MICHAEL D. BUSTAMANTE and RODERICK T. KENNEDY, Judges." ], "parties": [ "Gloria B. CHERINO, Petitioner-Appellant, v. Samuel A. CHERINO, Respondent-Appellee." ], "opinions": [ { "text": "OPINION\nFRY, Judge.\n{1} Petitioner Gloria Cherino (Mother) appeals from the district court\u2019s order transferring jurisdiction over pending custody proceedings involving the parties\u2019 biological children to the Isleta Pueblo\u2019s tribal court. The district court based its order on the ground that the Indian Child Welfare Act (ICWA), 25 U.S.C. \u00a7 1901 (2007), grants the tribal court exclusive jurisdiction over the minor children. We hold that the ICWA is not implicated in divorce proceedings and reverse the district court\u2019s order transferring jurisdiction.\nBACKGROUND\n{2} In 2004, Mother filed a petition for dissolution of marriage in district court. Respondent Samuel Cherino (Father) did not enter an appearance or file any pleadings in response to the petition. However, twenty-four hours prior to the hearing on the petition, Father delivered to Mother a signed marital settlement agreement. Following the hearing on the divorce petition, the district court entered a final decree of divorce, in which the court adopted the marital settlement agreement\u2019s timesharing schedule regarding the children, with minor modifications. The decree also ordered Father to pay child support to Mother.\n{3} Less than six months after the district court entered the decree, Mother filed a motion to modify the visitation schedule and to enforce child support. Mother alleged that Father had struck the parties\u2019 son and that Father had \u201cno safe place to live.\u201d Mother asked the district court for elimination of the children\u2019s overnight stays with Father. Following a hearing on the motion, the district court entered an order awarding Mother sole legal and physical custody of the children \u201cin the best interest and safety of the children.\u201d\n{4} Almost a year later, Father filed a motion in district court seeking modification of custody. At the hearing on the motion, the district court informed the parties that prior to the hearing the tribal court had faxed to the district court a motion to intervene. The district court also told the parties that, after speaking by telephone with Isleta Pueblo\u2019s chief judge, the district court had determined that it would grant the tribal court\u2019s request to transfer jurisdiction of the proceedings to the tribal court. In the order transferring jurisdiction, the district court found that: (1) Father is a member of the Isleta Pueblo and lives within the Pueblo\u2019s boundaries, (2) the children are eligible for tribal membership, (3) the children are subject to the ICWA, and (4) the Isleta Tribal Court has requested a transfer of jurisdiction.\n{5} The district court attached to its order the tribal court\u2019s motion to intervene, in which the tribal court argued that the children were both subject to the ICWA, and that the Pueblo could provide services necessary for the entire family, including \u201cmental health, human resource, and educational\u201d resources. The tribal court contended that it was in the best interests of the children for the district court to transfer jurisdiction to the tribal court.\n{6} On appeal, Mother contends that the district court\u2019s transfer of jurisdiction was improper under both the ICWA and the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), NMSA 1978, \u00a7\u00a7 40-10A-101 to -210 (2001). Father did not file an answer brief in this case, despite our having granted him an extension of time to do so. Because we agree with Mother that the ICWA does not apply in cases involving custody of children when the children remain with the biological parents, we do not address her argument based on the UCCJEA.\nDISCUSSION\nStandard of Review\n{7} The district court\u2019s ruling on the tribal court\u2019s jurisdiction is a question of law that we review de novo. Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, \u00b6 6, 132 N.M. 207, 46 P.3d 668 (\u201c[T]he determination of whether jurisdiction exists is a question of law which an appellate court reviews de novo.\u201d). Determining the applicability of the ICWA requires us to interpret statutory language, which is also subject to de novo review. Morgan Keegan Mortgage Co. v. Candelaria, 1998-NMCA-008, \u00b6 5, 124 N.M. 405, 951 P.2d 1066.\n{8} The question of whether the ICWA applies to give a tribal court exclusive jurisdiction over custody disputes between biological parents is an issue of first impression. New Mexico courts have applied the ICWA, but only as it pertains to child custody issues in proceedings other than divorce cases. See State ex rel. Children, Youth & Families Dep\u2019t v. Andrea M., 2000-NMCA-079, \u00b6\u00b6 1, 2, 129 N.M. 512, 10 P.3d 191 (applying the ICWA in an abuse and neglect proceeding); In re Ashley Elizabeth R., 116 N.M. 416, 417, 863 P.2d 451, 452 (Ct.App.1993) (applying the ICWA in proceedings involving guardianship awarded to non-Indian paternal grandparents after the Indian mother\u2019s death); In re Vyril Van Begay, 107 N.M. 810, 811, 765 P.2d 1178, 1179 (Ct.App.1988) (applying the ICWA in proceedings involving the adoption of an Indian child by non-Indian parents). To answer this novel question, we begin by considering the language of the ICWA and then discuss case law in other jurisdictions that have addressed the issue.\nLanguage of the ICWA\n{9} The ICWA was enacted to protect the best interests of Indian children who are members of, or eligible for, membership in an Indian tribe. 25 U.S.C. \u00a7 1901(3). Under the ICWA, an Indian tribe may intervene and request transfer of jurisdiction to the tribe in proceedings involving \u201cfoster care placement of, or termination of parental rights to, an Indian child.\u201d 25 U.S.C. \u00a7 1911(b), (c) (2007). Congress enacted the ICWA in order to address the concern \u201cthat an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.\u201d 25 U.S.C. \u00a7 1901(4); see Andrea M., 2000-NMCA-079, \u00b6 8, 129 N.M. 512, 10 P.3d 191 (explaining that \u201cCongress enacted [the] ICWA to remedy the difficulties arising from state-facilitated proceedings that often resulted in the removal of Indian children from their homes with little or no consideration of an Indian child\u2019s cultural heritage or the tribe\u2019s interest in the removal of Indian children from their Indian homes\u201d).\nSection 1911 of the ICWA provides in pertinent part:\n(a) Exclusive jurisdiction\nAn Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law.\n(b) Transfer of proceedings; declination by tribal court\nIn 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\u2019s 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\u2019s tribe: Provided, [t]hat such transfer shall be subject to declination by the tribal court of such tribe.\n(c) State court proceedings; intervention In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child\u2019s tribe shall have a right to intervene at any point in the proceeding.\n(Emphasis omitted.)\n{10} The ICWA defines the term \u201cchild custody proceeding\u201d as including \u201cfoster care placement,\u201d \u201ctermination of parental rights,\u201d \u201cpreadoptive placement,\u201d and \u201cadoptive placement.\u201d 25 U.S.C. \u00a7 1903(l)(i)-(iv) (2007) (internal quotation marks omitted). However, the term expressly \u201cshall not include ... an award, in a divorce proceeding, of custody to one of the parents.\u201d Id. Furthermore, in published guidelines for state courts regarding the intended application of the ICWA, the Bureau of Indian Affairs stated the following:\nChild custody disputes arising in the context of divorce or separation proceedings or similar domestic relations proceedings are not covered by the Act so long as custody is awarded to one of the parents.\nGuidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,587 B.3.(b) (1979); see Ashley Elizabeth R., 116 N.M. at 419, 863 P.2d at 454 (stating that the Bureau of Indian Affairs Guidelines are persuasive authority). Thus, the language of the ICWA itself and the Bureau of Indian Affairs Guidelines mandate the conclusion that the ICWA does not apply in the present case.\nDecisions by Courts in Other Jurisdictions\n{11} Our conclusion is supported by cases from other jurisdictions. For example, in DeMent v. Oglala Sioux Tribal Court, 874 F.2d 510, 514 (8th Cir.1989), the Eighth Circuit Court of Appeals concluded that the ICWA did not operate to vest a tribe with jurisdiction over a custody dispute between biological parents, one of whom was Indian. See also Cox v. Cox, 2000 ND 144, \u00b6 7, 613 N.W.2d 516, 519 (holding that the ICWA did not apply to a custody dispute in a divorce proceeding); In re Defender, 435 N.W.2d 717, 721 (S.D.1989).\n{12} We hold that the ICWA does not apply in the present case. The district court erred in transferring jurisdiction to the Isleta Pueblo tribal court.\nCONCLUSION\n{13} For the foregoing reasons, we reverse the district court\u2019s order transferring jurisdiction and remand for proceedings consistent with this opinion.\n{14} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE and RODERICK T. KENNEDY, Judges.", "type": "majority", "author": "FRY, Judge." } ], "attorneys": [ "Susan Cross, Taos, NM, for Appellant.", "Samuel A. Cherino, Pro Se Appellee." ], "corrections": "", "head_matter": "2008-NMCA-024\n176 P.3d 1184\nGloria B. CHERINO, Petitioner-Appellant, v. Samuel A. CHERINO, Respondent-Appellee.\nNo. 26,970.\nCourt of Appeals of New Mexico.\nDec. 18, 2007.\nSusan Cross, Taos, NM, for Appellant.\nSamuel A. Cherino, Pro Se Appellee." }, "file_name": "0452-01", "first_page_order": 488, "last_page_order": 490 }