State ex rel. Children, Youth And Families Department v. LAURA J.

301 P.3d 860

STATE of New Mexico ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner–Appellee,

v.LAURA J., Respondent–Appellant,andIn the Matter of Elijah J., a child,

and

Concerning Colin D., Rebecca Lynn F., and Diana C., Intervenors.

State of New Mexico ex rel. Children, Youth and Families Department, Petitioner–Appellee,

v.Laura J., Respondent,andIn the Matter of Elijah J., a child,

and

Concerning Colin D., Intervenor–Appellant,

and

Diana C. and Rebecca Lynn F., Intervenors.

Nos. 31,324, 31,374.

Court of Appeals of New Mexico.

Sept. 26, 2012.

Certiorari Denied, No. 33,943, April 8, 2013.

Children, Youth & Families Department, Oneida L'Esperance, Chief Children's Court Attorney, Rebecca J. Liggett, Children's Court Attorney, Santa Fe, NM, for Appellee.

Caren I. Friedman, Santa Fe, NM, for Appellant Laura J. (No. 31,324).

Rodey, Dickason, Sloan, Akin & Robb, P.A., Edward Ricco, Melanie B. Stambaugh, Jocelyn Drennan, Albuquerque, NM, for Appellant Colin D. (No. 31,374).

Cuddy & McCarthy LLP, Aaron Wolf, Santa Fe, NM, for Intervenors Rebecca Lynn F. and Diana C.

Johnna L. Studebaker, Santa Fe, NM, Guardian ad Litem.

OPINION

SUTIN, Judge.

{1} Laura J.'s (Mother's) and Child's cousin, Colin D., and Mother separately appeal the termination of Mother's parental rights to Elijah J. (Child). We have consolidated the two appeals and consider in this Opinion the issues presented by Mother and by Colin. In addition to the propriety of the termination of Mother's parental rights, this appeal raises questions of Colin's standing and whether the Children, Youth and Families Department's (the Department) failure to consider Colin for placement of Child requires this Court to remand for further permanency hearings.

{2} We hold that clear and convincing evidence supported the termination of Mother's parental rights and that Mother was afforded due process in regard to the termination proceedings and determination. We affirm the judgment terminating Mother's parental rights. In addition, to the extent Mother may have a legal interest recognized under due process with respect to placement of Child with relatives, we determine that our remand of the placement issue satisfies any due process concerns. Last, we also hold that Colin has standing to appeal and that the Department was obligated but failed to consider Colin as a potential placement for Child requiring the Department on remand to consider forthwith whether Colin is an appropriate relative with whom to place Child. Our remand of the placement issue does not require reversal of the termination of Mother's parental rights.

BACKGROUND

{3} On December 9, 2008, the Department received a referral alleging that Mother was abusing drugs and physically neglecting Child; the referral included allegations of inadequate food and lack of supervision. Two days later, on December 11, Delfina Medina, an investigator with the Department, went to Mother's home. According to Ms. Medina, Mother stated that she had a history of domestic violence, dating back five months, with a former boyfriend. Mother also reportedly admitted using crack about one month prior to Ms. Medina's visit and using marijuana about one week prior to the visit. Before concluding the home visit, Ms. Medina requested that Mother visit the Department's office “first thing the next morning” for the purposes of continuing the investigation and submitting to a urinalysis. The next day, December 12, 2008, a snowstorm occurred, and Mother “called in and stated that she would not make it to the Department that day and would reschedule the appointment by phoning [Ms.] Medina another day, due to her not having a phone that she could be reached at.” On January 5, 2009, through Mother's mother, Ms. Medina requested that Mother visit the Department on January 7, 2009, but Mother cancelled the appointment because Child was sick. Mother agreed to allow Ms. Medina to drive her to SED Labs for a urinalysis. When Ms. Medina arrived at Mother's home, Mother was not there. Later that day, Ms. Medina, along with a detective from the Santa Fe Police Department, did an unannounced home visit, due to Ms. Medina's concerns about Mother's slurred speech earlier that day. The detective, who arrived before Ms. Medina, reportedly told Ms. Medina that it seemed that “they” (Mother and her two guests) were smoking marijuana in the apartment. The detective removed drug paraphernalia from the home and granted the Department a forty-eight-hour hold on Child, who was taken to the Department's office by Child Protective Services supervisor Gabrielle James. Child was approximately nine and one-half months old at that time.

{4} The Department workers noticed that Child's hands and face were dirty, that he had scratches and abrasions on his hands and shins, and a rash on his buttocks. He also had what appeared to be a bump on the back of his head, a mark on his back, and an older rash on his lower back. He had only one shoe and no socks. He was dressed in a shirt that was too big. Due to concerns regarding Child's physical condition and concerns that he was unable to sit up, unable to hold his head up, and “was not very responsive[,]” Child was taken to the hospital. At the hospital, a drug screen revealed that Child tested positive for opiates. Child also had impetigo, and he was “very hungry[.]”

{5} Child was discharged from the hospital the same day he was taken there. Once discharged from the hospital, Child was placed in foster care. On January 8, a social worker from the hospital contacted the Department and reportedly stated that, due to his having tested positive for opiates, Child should not have been discharged from the hospital and that if Child showed any signs of withdrawal, he needed to be taken back to the hospital immediately. Also on January 8, 2009, the foster parent reported that Child was very limp and would not hold his head up. On January 9, 2009, the foster parent took Child to a follow-up medical appointment, at which the physician determined that the markings on Child's body were from bed bugs.

{6} Pursuant to the foregoing facts, presented as part of the Department's affidavit for ex parte custody order, the district court found probable cause to believe that Child was abused or neglected as defined in NMSA 1978, Section 32A–4–2 (1999) (amended 2009). Accordingly, the court signed an ex parte custody order on January 9, 2009, in which it ordered Child to remain in the Department's custody until further order of the court.

{7} On January 20, 2009, the district court held a temporary custody hearing at which the court ordered continued departmental custody of Child and adopted the Department's initial assessment plan. Among other things, the initial assessment plan noted that Child had been placed with a foster family in San Miguel County while relative placement was being explored, and it called for Mother to provide a list of relatives to be considered for relative placement. Additionally, it called for Mother to participate in a psychological evaluation, as well as in a parenting assessment, and undergo random urinalyses.

{8} On January 23, 2009, the case was transferred from the Department's Santa Fe office to its Las Vegas, New Mexico office because Child's alleged father was related to an employee of the Santa Fe office. On January 30, Mother participated in an intake with Crossroads, a women's residential recovery center in Carlsbad, New Mexico. Crossroads accepted Mother into its program and indicated that she could be admitted in March 2009.

{9} On March 3, 2009, the district court held an adjudicatory and dispositional hearing at which Mother pleaded no contest to allegations of neglect. The court found that the Department had made and continued to make reasonable efforts to reunify Child with Mother. The court adopted the Department's family treatment plan and added additional requirements of Mother, including that (1) she attend the Crossroads program and participate in services and, upon release, follow aftercare recommendations; (2) after attending the Crossroads program, she be assessed for work skills and be referred to appropriate job training; (3) she get her GED; and (4) she participate in individual counseling.

{10} On March 16, 2009, Mother was admitted to Crossroads, and Child was placed there with her. At the time of her admittance to Crossroads, Mother was one month pregnant with her second child. At Crossroads, Mother underwent a psychological evaluation and a comprehensive clinical and psychosocial assessment. She participated in parenting classes, substance abuse therapy, and individual therapy. She also interacted with Child to learn to address Child's developmental delays.

{11} Mother was scheduled to graduate from the Crossroads program on July 15, 2009; however, she was unsuccessfully discharged from the program on June 8, 2009, “due to her manipulative and detrimental behaviors to the group.” In its discharge summary, Crossroads noted, among other things, that Mother had a very difficult time focusing on her addiction and the need for changes in her life; that “[s]he focused most of her time on external factors and manipulated the staff and her group members constantly”; and that she “did work on her behaviors but would relapse and continue to repeat the same negative behaviors.” Having been discharged from Crossroads, Mother returned to Santa Fe, where she resumed working on a treatment plan through the Department. Child was placed with foster parents, Rebecca Lynn F. and Diana C. (Foster Parents) in Las Vegas on or about June 10, 2009.

{12} On August 11, 2009, the district court held an interim review. The court ordered the implementation of a modified treatment plan. With an overarching goal of reunification, the treatment plan included interim goals of Mother obtaining and maintaining a safe and stable home environment, becoming employed or otherwise demonstrating an ability to...