State ex rel. Children, Youth & Families Dep't v. Rueben D. (In re Damien R.), A-1-CA-37954

STATE OF NEW MEXICO ex rel. CHILDREN,YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. RUEBEN D., Respondent-Appellant,andLORYANN R., Respondent,IN THE MATTER OF DAMIEN D.R., Child.

No. A-1-CA-37954

COURT OF APPEALS OF THE STATE OF NEW MEXICO

November 19, 2019

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY

Pedro G. Rael, District Judge

Children, Youth & Families Department

Rebecca J. Liggett, Chief Children's Court Attorney

Santa Fe, NM

Kelly P. O'Neill, Children's Court Attorney

Albuquerque, NM

For Appellee

Law Offices of Nancy L. Simmons, P.C.

Nancy L. Simmons

Albuquerque, NM for Appellant

Sherrie L. Trescott

Rio Rancho, NM

Guardian Ad Litem

DECISION

MEDINA, Judge.

{1} Rueben D. (Father) appeals the termination of his parental rights to Damien D. (Child). For the reasons that follow, we affirm. We set out only the pertinent facts and law in connection with the issues analyzed because the parties are familiar with the facts and procedural posture of this case and because this is a non-precedential expedited bench decision. See In re Court of Appeals Caseload, Misc. Order No. 01-57, ¶ 4(C) (Sept. 19, 2016).

BACKGROUND

{2} On June 19, 2014, the Children, Youth, and Families Department (CYFD) filed a petition alleging Child, approximately seven-and-a-half years old, was abused and neglected by Father. The district court entered an adjudicatory judgment finding that Child was an abused and neglected child, pursuant to NMSA 1978, Section 32A-4-2(B)(1), (B)(2) and (E)(2) (2009, amended 2018).¹ In a dispositional order, the district court adopted CYFD's proposed treatment plan, which required Father to, among other things, participate in visitations with Child, take random drug tests, participate in the family dependency drug court program, and follow the recommendations as a result of a psychological evaluation and domestic violence assessment. On August 3, 2015, CYFD moved to terminate Father's parental rights. As grounds therefore, CYFD alleged that the causes and conditions that brought the Child into CYFD's custody are unlikely to change in the foreseeable future despite CYFD's reasonable efforts to assist Father in adjusting the conditions which rendered him unable to properly care for the child. Specifically, CYFD alleged Father was unable or unwilling to utilize its services. The district court held the termination of parental rights evidentiary hearing over the course of three days.

{3} Despite testing positive for methamphetamine on the first and second days of the evidentiary hearing, Father was able to testify about his attempts to comply with his treatment plan. Although Father agreed to call CYFD daily to see whether he was required to take a drug test, he admitted that he never called in, despite knowing that missed tests would be treated as positive. Nor did Father show up for his intake evaluation at the family dependency drug court program. Instead, Father chose to attend a drug rehabilitation program at Villa de Esperanza, which was not affiliated withCYFD, in October 2015. Father testified that he completed a twenty-eight-day program at Villa de Esperanza, which included parenting classes and substance abuse treatment. While Father stayed sober for a period of time after leaving Villa de Esperanza, Father admitted that he eventually started using drugs again.

{4} According to Father, he began counseling at Villa de Esperanza sometime in 2014, and continued to see his counselor twice a week until about August or September 2016 because Father no longer felt he was making any progress. Father's counselor at Villa de Esperanza was qualified to do "most, if not everything" that CYFD's treatment plan required, including counseling on parenting, domestic violence, and substance abuse. While CYFD referred Father to another program for a domestic violence assessment, Father did not go because he did not want CYFD to have any influence on his counseling. Additionally, although Father went to one family therapy appointment with a CYFD-affiliated counselor, Father testified that he did not return for a scheduled follow-up because he was seeing his counselor at Villa de Esperanza and believed that CYFD was influencing the counselor. Father also testified that he tried to get Child to go to family therapy with his counselor at Villa de Esperanza, but CYFD did not approve.

{5} Several individuals from CYFD testified at the evidentiary hearing. Dr. Michael Rodriguez, a licensed psychologist, testified that he was hired by CYFD to perform a psychological evaluation on Father. As a result of the evaluation, Dr. Rodriguez recommended that Father enroll in outpatient substance abuse treatment, individual psychotherapy to help him understand how his lifestyle choices impacted his family, and parenting training to help him reframe his belief that parenting was about punishing—as opposed to teaching—Child. Additionally, Beverly Michael, a licensed clinical social worker, testified about her interactions with Father and Child during therapy. Ms. Michael met with Father to assess him for a family reunification program, which included family therapy. However, Father only attended one family therapy session and had to excuse himself after becoming frustrated. In Ms. Michael's sessions with Child, Child reported witnessing Father beat and choke Mother and confided that he would get so scared he would hide in a closet and pile things on top of himself. Child also reported seeing his parents use drugs and smoke something out of a "big glass pipe." Child did not like being with his parents when they were under the influence. Child believed that he would be "at risk" if he were returned to either parent and asked Ms. Michael, "[W]ill you please tell the judge that I want to be adopted?" Ms. Michael agreed that the safety concerns which brought Child into CYFD custody had not been adequately addressed.

{6} Rebecca Sandoval, a county office manager (and former placement and permanency planning supervisor) with CYFD, testified about Father's treatment. In Ms. Sandoval's opinion, Father had not completed enough of his treatment plan to have Child returned to him. To Ms. Sandoval's knowledge, Father had not completed any parenting or domestic violence program, despite CYFD referring him to such programs. Nor had Father completed any of Dr. Rodriguez's recommendations. Additionally, excluding the drug tests that Father took at the evidentiary hearings, Father had only taken four drug tests since 2014. Of the four tests that CYFD administered between June 20, 2014 and September 24, 2015, only one came back negative; the other threecame back positive for either methamphetamine, marijuana, or both. Father also refused to take required drug tests after he completed the drug rehabilitation program at Villa de Esperanza in October 2015. Additionally, Father stopped attending visitations with Child in February 2016 when the district court ordered CYFD to drug test Father each time he visited Child. Given Father's lack of progress in treatment and Child's need for permanency after being in CYFD custody for over three years, CYFD recommended terminating Father's parental rights.

{7} Following the third day of the evidentiary hearing on May 24, 2017, the district court concluded that Father was unlikely to change the causes and conditions of his neglect and abuse of Child in the foreseeable future despite CYFD's reasonable efforts to assist him, finding the following:

[1. Father] appeared in [c]ourt on at least two occasions testing positive for illegal drug use, with knowledge that his parental rights were at stake—father was honest about such drug use and made the decision to use illegal drugs in the presence of the [c]ourt during critical hearings regarding his parental rights instead of showing serious efforts to protect his parental rights;

[2.] Father conducted himself in such a manner and made numerous excuses regarding seeing [C]hild over the past three years that he could not be found by CYFD, that he failed to engage in other than very meager efforts to see . . . Child, and failed to communicate with . . . Child or provide for . . . Child's support for extended periods of time, the last period lasting at least two years;

. . . .

[3.] Father went to some programs offered by CYFD and very early in treatment . . . got so angry that he had to be asked to leave a session; he failed to complete almost all offered programs, therapies and counseling;

[4.] Father never attended the offered [c]ourt drug treatment program;

[5.] Father did not participate in domestic violence programs offered because he was no longer with . . . Mother even though the original separation between himself and . . . Child was due in part to violence between him and [C]hild;

[6.] Extensive drug use by Father appears as a reason why . . . Child was removed and Father has done nothing, despite CYFD efforts, to participate in drug abuse programs and has appeared in [c]ourt, with knowledge of the possible consequences, having signs of the use of [methamphetamine] by his own admission after almost three years since [C]hild was removed from his custody[.]

See NMSA 1978, § 32A-4-28(B)(2) (2005). Additionally, given the evidence presented about Father's lack of contact with Child, the district court found, sua sponte, that there was clear and convincing evidence that Father presumptively abandoned Child. See § 32A-4-28(B)(3). Consequently, the district court terminated Father's parental rights. This appeal followed.

DISCUSSION

{8} Father argues there was insufficient evidence to support the district court's finding that CYFD made reasonable efforts to assist him in...