State ex rel. Children, Youth & Families Dep't v. Sara T., A-1-CA-37880

STATE OF NEW MEXICO ex rel. CHILDREN,YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. SARA T., Respondent-Appellant,andVICENTE T. SR., Respondent,IN THE MATTER OF VICENTE T. JR., Child.

No. A-1-CA-37880

COURT OF APPEALS OF THE STATE OF NEW MEXICO

September 25, 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 Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions.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 DOÑA ANA COUNTY

Marci E. Beyer, District Judge

Children, Youth & Families Department

Rebecca J. Liggett, Chief Children's Court Attorney

Robert Retherford, Children's Court Attorney

Santa Fe, NM

for Appellee

Jane B. Yohalem

Santa Fe, NM

for Appellant ChavezLaw, LLC

Rosenda Chavez

Las Cruces, NM

Guardian Ad Litem

DECISION

BOGARDUS, Judge.

{1} Sara T. (Mother) appeals the termination of her parental rights to her son, Vincente T., Jr. (Child).¹ Mother advances three arguments: (1) there was insufficient evidence "to establish that Mother would not be able to remedy the causes and conditions of neglect in the foreseeable future[;]" (2) the district court erred in "valuing swift permanency . . . over family reunification[;]" and (3) Mother's telephonic appearance at the termination of parental rights (TPR) hearing was insufficient to protect her right to due process. Unpersuaded, we affirm.

{2} Because this a non-precedential expedited bench decision and the parties are familiar with the facts and procedural posture of this case, our decision includes only those facts and law necessary to decide the merits. See In re Court of Appeals Caseload, Misc. Order No. 01-57, ¶ 4(C) (Sept. 19, 2016).

BACKGROUND²

{3} In March 2017, Child tested positive for cocaine, methamphetamines, and marijuana while in the care of Mother. As a result of Child's drug exposure, Mother was arrested and, as a condition of release, was not allowed to have contact with Child. Child was placed with his paternal aunt, Kalissa M., who had been appointed as a safety monitor. Approximately seven months later, on October 12, 2017, Kalissa M., informed Children, Youth and Families Department (CYFD) that she was no longer able to care for Child due to the limited resources provided. An alternate safety monitor and another paternal aunt of Child, Marissa T., informed CYFD she was only able to keep Child for the night. The following day, Child was placed into CYFD's custody.

{4} On October 17, 2017, CYFD filed a petition alleging that Child was abused and neglected as defined in the Abuse and Neglect Act (the Act), NMSA 1978, §§ 32A-4-1 to -35 (1993, as amended through 2019). See § 32A-4-2(B)(1) (defining "abused child" as one "who has suffered or who is at risk of suffering serious harm because of theaction or inaction of the child's parent"); § 32A-4-2(B)(4) (defining "abused child" as one "whose parent . . . has knowingly, intentionally, or negligently placed the child in a situation that may endanger the child's life or health"); and § 32A-4-2(G)(2) (defining "neglected child" as one "who is without proper parental care and control or subsistence, education, medical or other care or control necessary for the child's well-being because of the faults or habits of the child's parent . . . or the failure or refusal of the parent, . . . when able to do so, to provide them"). The district court issued an ex parte custody order placing Child into CYFD's custody. Child was then placed in non-relative foster care because no relative was able or willing to care for him. Child's care was subsequently moved to another non-relative foster care placement.

{5} On February 5, 2018, pursuant to Mother's no contest plea, the district court entered a stipulated judgment and order that Child was neglected under Section 32A-4-2(G)(2). The district court found that Mother was unable to properly care and provide for Child due to her illegal drug use and conditions of release which prevented her from having contact with Child. Mother's court-ordered treatment plan required her to: (1) maintain open and regular contact with CYFD; (2) participate in and complete the Esperanza program or another similar program to obtain and maintain sobriety; (3) address her legal issues to be able to have contact with Child; (4) participate in a parenting program to attain age appropriate expectations of children and effectively demonstrate the utilization of those skills; (5) utilize resources to maintain safe housing; and (6) participate in a psychological evaluation and follow any recommendations that arise from the evaluation.

{6} On March 26, 2018, the district court entered an initial judicial review order after a hearing on the matter. While acknowledging that Mother complied with her treatment plan by contacting CYFD following her release from custody and by "respond[ing] to text messages most of the time[,]" the district court found that Mother failed to otherwise comply with her treatment plan. Specifically, the district court found that Mother had: not maintained open contact with CYFD; not answered phone calls from her case worker; missed five meetings with her case worker; refused to meet with her case worker while at the Doña Ana Detention Center; made two appointments with the infant mental health clinician then failed to attend the appointments or return calls and messages from the provider trying to reschedule; not resolved her legal no contact order; neither attended nor completed her scheduled psychological evaluation; scheduled at least three home visits from which she was then absent; and not completed the required hair follicle drug test. Based on this, the district court found that Mother had not progressed in her case plan and entered a finding of futility, which relieved CYFD from its obligation to make reasonable efforts to implement Mother's case plan.

{7} Four days after the initial judicial review, Child's placement was changed for a third time at CYFD's request due to an emergency. Four days after that placement, Child's care provider requested that the placement be changed and Child was placed with a fourth care provider. Child remained with his fourth placement through the TPR hearing.

{8} On May 22, 2018, CYFD moved to terminate Mother's parental rights to Child. In the motion, CYFD alleged that Mother was unable or unwilling to provide proper parental care or control for Child and had not utilized or benefited from the services offered by CYFD to remedy the conditions and causes of Child's neglect. CYFD further alleged that it was unlikely that the situation would change in the foreseeable future. The TPR hearing was scheduled for September 10, 2018.

{9} On July 31, 2018, Mother was sentenced to a term of incarceration of three years in relation to her criminal child abuse charge. On August 2, 2018, CYFD took Child to the Doña Ana Detention Center to visit with Mother. Mother was subsequently transferred to the Western New Mexico Correctional Facility for classification in mid-August 2018. Mother was then transferred to the Springer Correctional Facility on or about August 30, 2018.

{10} At Mother's request, the first scheduled hearing on CYFD's TPR motion was continued after the Doña Ana County Sheriff's Department was unable to transport Mother to the hearing as a result of her transfer within the New Mexico Department of Corrections. On November 2, 2018, three days before the rescheduled TPR hearing, Mother again moved to continue the hearing because her transport order had been rejected by the Doña Ana County Sheriff's Department without notice to her counsel or the district court. After the parties presented argument on Mother's motion to continue, the district denied the motion. The TPR hearing was held on November 5, 2018.

{11} Mother appeared telephonically at the TPR hearing, conferred with her counsel after the close of CYFD's evidence, and testified on her own behalf. Following the hearing, the district court granted CYFD's motion, issued findings of fact, and concluded that, despite CYFD's reasonable effort to assist Mother in addressing the conditions that rendered her unable to provide for Child, it was in Child's best interest to terminate Mother's parental rights. Mother appeals.

DISCUSSION

I. Sufficiency of the Evidence

A. Standard of Review

{12} Section 32A-4-28(B)(2) provides that the district court shall terminate parental rights when

the child has been a neglected or abused child as defined in the [Act] and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts by [CYFD] to assist the parent in adjusting the conditions that render the parent unable to properly care for the child.

"It is [CYFD's] burden to prove the statutory grounds for termination by clear and convincing evidence." State ex rel. Children, Youth & Families Dep't v. Tammy S., 1999-NMCA-009, ¶ 13, 126 N.M. 664, 974 P.2d 158. "Clear and convincing evidence means evidence that instantly tilts 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. Children, Youth & Families Dep't v. Nathan H., 2016-NMCA-043, ¶ 31, 370 P.3d 782 (internal quotation marks and citation omitted). The district court must "give primary consideration to the physical, mental, and emotional welfare and needs" of children when considering terminating parental rights. Section 32A-4-28(A).

{13} "This Court will uphold the termination if, viewing the evidence in the light most favorable to the judgment, a fact[-]finder could properly determine that the clear and convincing standard was met." Tammy S., 1999-NMCA-009, ¶ 13. Our standard of review does not require us to determine ...