State ex rel. Children, Youth & Families Dep't v. Mackenzie B.

STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. MACKENZIE B., Respondent-Appellant, and SEAN S., Respondent, and DAVID M. and WENDY W., Intervenors, IN THE MATTER OF J.S., Child.

No. A-1-CA-39127

Court of Appeals of New Mexico

October 13, 2021

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY John J. Romero Jr., 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

Zimmerman Law, LLC Shona L. Zimmerman Albuquerque, NM Guardian Ad Litem

MEMORANDUM OPINION

J. MILES HANISEE, CHIEF JUDGE

{¶1} MacKenzie B. (Mother) appeals the district court's adjudication that Child was abused and neglected, pursuant to NMSA 1978, Section 32A-4-2(B)(1), (4), and (G)(2) (2017, amended 2018). Mother argues (1) the delay in proceedings warranted dismissal and violated her procedural due process rights, (2) there was not substantial evidence to support the district court's findings of abuse and neglect, and (3) the district court erred in admitting evidence of Mother's drug tests.^[1] For the reasons that follow, we affirm.

BACKGROUND

{¶2} Child was born on March 16, 2017, and was taken into custody by the New Mexico Children, Youth and Families Department (CYFD) on June 5, 2017, the same day CYFD filed a petition alleging Child was abused and neglected (the Petition). The basis for the Petition stemmed from a referral received by CYFD, the day after Child was born, alleging that Child was physically neglected by Mother and that Child was drug-exposed at birth. The referral further alleged that after Child was born, both Mother and Child tested positive for methamphetamine.

{¶3} The district court held adjudicatory hearings on the Petition between September 14, 2017, and December 2, 2019. The district court subsequently issued its adjudicatory judgment and dispositional order in which it found Child was abused and neglected. Mother's appeal followed.

DISCUSSION

I. Timeliness of Proceedings

{¶4} Mother argues that the length of proceedings between the filing of the Petition and the adjudicatory hearing violated NMSA 1978, Section 32A-4-19 (2009), Rule 10-343 NMRA, as well as her right to due process. Mother specifically contends that "in matters concerning the State's interference with her parental rights, Mother has the right to a speedy resolution as a matter of procedural [d]ue [p]rocess." Following review of the briefing and record in this case, we conclude that Mother's arguments regarding due process and an asserted right to speedy resolution are undeveloped, and we therefore do not consider them. See Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 ("This Court has no duty to review an argument that is not adequately developed.").

{¶5} Before we address Mother's arguments regarding Section 32A-4-19 and Rule 10-343, we initially note that the parties disagree about whether Mother's timeliness issue is preserved. Mother's counsel objected to the delay in proceedings during closing argument at the adjudicatory hearing, stating that Mother has a right to a "speedy adjudication" of the Petition, and requesting the Petition be dismissed. We conclude that Mother's counsel's statements during closing argument adequately fulfilled the purpose of the preservation rule because they alerted the district court to Mother's asserted error and included a request that the district court dismiss the Petition, which the court declined to do. See Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56, 146 N.M. 853, 215 P.3d 791 (stating that the purpose of the preservation rule is, in part, "to specifically alert the district court to a claim of error so that any mistake can be corrected at that time," and "to create a record sufficient to allow this Court to make an informed decision regarding the contested issue").

{¶6} We review a district court's decision whether to dismiss an abuse and neglect petition for an abuse of discretion and review the district court's application of the children's court rules de novo. State ex rel. Child., Youth & Fams. Dep't v. Tanisha G., 2019-NMCA-067, ¶ 10, 451 P.3d 86. In conformance with Section 32A-4-19(A), (D), an "adjudicatory hearing in a neglect or abuse proceeding shall be commenced within sixty days after the date of service on the respondent[, ]" and "[w]hen the adjudicatory hearing on any petition is not commenced within [that sixty-day] time period . . . or within the period of extension granted, the petition shall be dismissed with prejudice." Rule 10-343 is consistent with Section 32A-4-19 and provides additional specific procedures for parties "seeking an extension of time to commence [an] adjudication[, as permitted by Section 32A-4-19, as well as] the remedies available to the district court in the event of noncompliance with the time limits." Tanisha G., 2019-NMCA-067, ¶ 11. Under the rule, like Section 32A-4-19, an "adjudicatory hearing shall be commenced within sixty (60) days" of "the date that the petition is served on the respondent[.]" Rule 10-343(A)(1). Rule 10-343(C) further specifies:

The time for commencement of an adjudicatory hearing may be extended by the children's court for good cause shown, provided that the aggregate of all extensions granted by the children's court shall not exceed sixty (60) days, except upon a showing of exceptional circumstances. An order granting an extension shall be in writing and shall state the reasons supporting the extension.

Rule 10-343(E)(2), also like Section 32A-4-19(D), requires that "[i]n the event the adjudicatory hearing on any petition does not commence within the time limits provided in this rule, including any court-ordered extensions, the case shall be dismissed with prejudice."

{¶7} Here, the Petition was filed on June 5, 2017, and Mother was served with the Petition on June 12, 2017. The adjudicatory hearing was originally scheduled for August 1, 2017-well within the sixty-day requirement for commencement of adjudication proceedings under Rule 10-343-but on July 21, 2017, Mother filed a stipulated motion to continue the adjudication and agreement to extension of time. Mother's stipulated motion set forth, in pertinent part, that "the parties request that the [August 1, 2017] setting be vacated, that the time limits be extended by [sixty] days, and that the [c]ourt reset this case for an adjudication [sixty] days out." The district court granted Mother's motion by written order on July 21, 2017. The adjudication commenced on September 14, 2017-fifty five days into the sixty-day continuance requested by mother and granted by the district court-and took place over eleven different hearings through December 2, 2019.

{¶8} Following our review of the record, we find no violation by the district court of either Section 32A-4-19 or Rule 10-343. The adjudication commenced within the sixty-day period, required by both the statute and rule, following the district court's grant of Mother's stipulated motion to continue, which itself adhered to Rule 10-343's requirements as a written order in which the district court stated the reasons the extension was granted-namely that Mother's motion for continuance was supported by good cause and stipulated to by all parties. Indeed, neither Section 32A-4-19 nor Rule 10-343 contemplates a required timeline in which adjudication must be completed and resolved in a manner devoid of appropriate extensions. Further, to the extent Mother argues that resolution of the adjudication was delayed, in part, by the district court's initial grant of Mother's own stipulated motion to continue, we remind Mother that "[a] party who has contributed, at least in part, to perceived shortcomings in a [district] court's ruling should hardly be heard to complain about those shortcomings on appeal." Cordova v. Taos Ski Valley, Inc., 1996-NMCA-009, ¶ 13, 121 N.M. 258, 910 P.2d 334. We therefore hold that the district court did not err in declining to dismiss the Petition due to the delayed resolution of the adjudication.

II. Substantial Evidence

{¶9} Mother argues that substantial evidence did not support the district court's findings that Child was abused and neglected. Specifically, Mother contends that CYFD failed to show that Child suffered actual harm due to Mother's "erratic behavior" or her expressed desire and attempts to breastfeed Child. "In order to [evaluate] claims of evidentiary sufficiency, we must determine whether the district court's decision is supported by substantial evidence of a clear and convincing nature." State ex rel. Child., Youth & Fams. Dep't v. Alfonso M.-E., 2016-NMCA-021, ¶ 26, 366 P.3d 282. "For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact[-]finder's mind is left with an abiding conviction that the evidence is true." State ex rel. Child., Youth & Fams Dep't v. Shawna C., 2005-NMCA-066, ¶ 7, 137 N.M. 687, 114 P.3d 367 (internal quotation marks and citation omitted). "We indulge all reasonable inferences in support of the district court's decision and disregard all inferences or evidence to the contrary." State ex rel. Child., Youth & Fams. Dep't v. Cosme V., 2009-NMCA-094, ¶ 19, 146 N.M. 809, 215 P.3d 747 (alterations, internal quotation...