State ex rel. Children, Youth & Families Dep't v. Justin T. (In re Tirzah T.)

STATE OF NEW MEXICO ex rel. CHILDREN,YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. JUSTIN T., Respondent-Appellant,IN THE MATTER OF TIRZAH T., Child.

No. A-1-CA-37403

COURT OF APPEALS OF THE STATE OF NEW MEXICO

July 22, 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 Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions.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 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

Peter G. Tasso Law Firm, P.C.

Peter G. Tasso

Albuquerque, NM

Guardian Ad Litem

MEMORANDUM OPINION

MEDINA, Judge.

{1} The district court found that Justin T. (Father) neglected and abused six-month-old Tirzah T. (Child) and terminated Father's parental rights. On appeal, Father argues that the basis for the adjudication of abuse and neglect and termination of parental rights is legally insufficient. Because we agree, we vacate the adjudication of abuse and neglect and termination of parental rights.

BACKGROUND

Events Preceding Adjudication Hearing

{2} Testimony given during the adjudication hearing yielded the facts recited below, and the district court made its findings and conclusions based thereupon. Father claims that inadequate evidence supports the district court's findings, and the parties do not dispute the facts.

{3} On June 3, 2016, the New Mexico Children, Youth and Families Department (CYFD) received an emergency call from the Albuquerque Police Department regarding Child, Father, and Sarah Johnson (Mother). Upon arriving at the family's apartment, the CYFD investigator discovered that Mother had been taken into custody on a probation violation for having marijuana and pills in the apartment. Father was present at the apartment and informed the investigator that he was Child's primary caretaker and that Mother had been released from jail two days prior. Father also informed the investigator that he knew Mother was smoking marijuana and admitted to using marijuana himself but expressed that he did not have any concern about using marijuana while caring for Child.

{4} Based on the information received from Father and concerns regarding his substance use while caring for Child, the investigator suggested that Child live with a relative as a safety monitor while Father participated in services. Father agreed to placement of Child with Father's sister (Aunt). Father was referred by CYFD for substance abuse and mental health assessments as well as to parenting classes. CYFD also permitted Father to see Child at any time as long as Aunt supervised the visits.

{5} On June 11, 2016, another CYFD investigator assigned to Child's case attended a family-centered meeting with Father, Aunt, and the investigator's supervisor, during which they discussed: (1) Father's substance use; (2) the needs of the family; (3) Father's lack of employment, (4) the possibility of placing Child in day care to enable Father to seek employment; and (5) a safety plan for Child. During the meeting, Aunt informed Father and CYFD that she was willing to act as Child's safety monitor for up to a year provided that Father participate in services designed to address his issues, including a mental health evaluation, counseling, assessments, and drug testing. At the conclusion of the meeting, Father agreed that Child would remain with Aunt while he sought to engage in services. A safety plan was implemented which required that: (1) neither parent would be permitted to have unsupervised visitation with Child; and (2) Father would participate in the services as CYFD requested, including a substance abuse assessment and counseling, mental health counseling, and a referral for child early intervention.

{6} Shortly after taking on Child's care, Aunt attempted to enroll Child in day care, at which point she discovered that Child, then seven months old, had not been immunized and had not seen a doctor since leaving the hospital after her premature birth. Aunt brought Child up to date on her immunizations and also obtained an assessment—through the UNM FOCUS program—of Child's physical and mental development. UNM FOCUS services were recommended in part because Child was exposed to drugs prenatally. No evidence revealing the results of the assessment conducted by the UNM FOCUS program was presented at the adjudication hearing.

{7} Child remained with Aunt for approximately six weeks, during which time Father visited her three times. Father attempted to visit Child on two other occasions but was unable to do so because of unforeseen impediments. While Child was in Aunt's care, Father provided to Aunt: two cans of formula, one box of cereal, one box of snacks, one package of diapers, one bottle, a couple of receiving blankets, a pacifier, teething ring, and a stroller. During this time period, Father did not provide financial assistance for Child nor did he participate in any of the services to which he had been referred by CYFD, including substance abuse and mental health assessments or parenting classes. In late June 2016, Aunt informed CYFD that she could no longer act as Child's safety monitor. CYFD contacted Father to inform him that Aunt was no longer able to care for Child, and that Child would be placed in foster care unless he participated in the recommended services. Father reacted by yelling at the CYFD investigator and accusing her of lying and ended the conversation abruptly by hanging up the phone.

{8} On July 18, 2016, CYFD filed an abuse and neglect petition (Petition) in the district court, alleging that Child had been abused and neglected by Father and Mother. With specific regard to Father, the Petition alleged that Child was abused or neglected by Father pursuant to NMSA 1978, Section 32A-4-2(B)(1), (B)(4), and (F)(2)¹ (2016, amended 2018). On July 11, 2016, CYFD took custody of Child. CYFD did not return Child to Father, citing his continued substance use, lack of participation in services, and lack of communication with CYFD and Aunt.

Adjudication Hearing

{9} The hearing on the Petition took place on September 15, 2016 and November 4, 2016, during which testimony was heard from two CYFD investigators, Aunt, and Father. At the hearing, the district court accepted Mother's plea of "no contest" to the allegations in the Petition. Father contested the allegations made in the Petition. Nomedical or psychological testimony regarding Child's mental or physical development, health, or the impact of Father's actions or inaction on the same was presented at the hearing.

{10} At the conclusion of the adjudication hearing, the district court made oral findings, including that the evidence was not clear and convincing that Child was abused pursuant to Section 32A-4-2(B)(1). However, under Section 32A-4-2(B)(4), the court stated that there was clear and convincing evidence that Father knowingly, intentionally, or negligently placed Child in a situation that could endanger her life or health based on his failure to inoculate Child, which prevented Child from being enrolled in day care. The court also stated that the purpose of a day care's inoculation requirement is to ensure not only Child's health but also the health of those who are around Child.

{11} As to Section 32A-4-2(F)(2), the district court found that Child was without proper care and control necessary for her well-being because of Father's failure to provide care and control. Specifically, the district court stated that based on: (1) evidence that, both while the safety plan was in place and before, there was inadequate proper parental care and control as there were "substances" in the home; (2) Father's denial that the use of marijuana was detrimental to Child based on his belief that it did not impair his ability to parent; and (3) evidence that Child had not received immunizations, especially since Child was born premature.

{12} On November 21, 2016, the district court entered its written judgment and disposition as to Father, specifically finding that his "admitted marijuana use, his failure to have [C]hild immunized, and failure to participate in [i]n-[h]ome services, has negatively impacted his ability to ensure [C]hild's safety and well-being." Father did not appeal the adjudication judgment.

Termination of Parental Rights Trial

{13} CYFD subsequently moved to terminate Father's parental rights, and the district court held a termination of parental rights (TPR) trial. CYFD moved the district court to take judicial notice of Mother's no-contest plea to the allegations in the Petition and of Father's abuse and neglect adjudication. Father did not object, and the district court took judicial notice of Mother's and Father's abuse and neglect adjudications.

{14} The court heard testimony regarding Father's post-adjudication efforts to work with CYFD toward reunification with Child. With the aid of a permanency planning worker, Father was referred to New Awakenings for initial assessments outlined in the treatment plan, including substance abuse, mental health, parenting, and domestic violence. The permanency planning worker also provided Father with a bus pass, offered him a "feed box letter," clothing, encouragement to consider vocational training through Work Force Solutions, and a Bernalillo County housing application packet along with assistance in filling out the required forms to obtain housing.

{15} While Father successfully completed initial assessments at New Awakenings, he failed to comply with recommended out-patient substance abuse treatment and individual therapy. Additionally, the testimony...