State ex rel. Children, Youth & Families Dep't v. Norman M.

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STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. NORMAN M., II, Respondent-Appellant, and FELEASEN B., Respondent,

No. A-1-CA-39526

Court of Appeals of New Mexico

August 30, 2022

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 William E Parnall, District Judge

Children, Youth & Families Department

Mary McQueeney, 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

Deborah Gray Law, LLC

Deborah Gray

Albuquerque, NM

Guardian Ad Litem

DECISION

KRISTINA BOGARDUS, JUDGE

{¶1} Norman M., II (Father) appeals the judgment terminating his parental rights to his six children (Children). Father argues (1) the termination of his parental rights to his youngest child violated procedural due process, and (2) there was insufficient evidence to support the termination of his parental rights to Children. We affirm.

BACKGROUND

{¶2} This case arises from two separate neglect/abuse petitions relating to the six Children of Father. Children, Youth & Families Department (CYFD) filed the first neglect/abuse petition in June 2018, alleging that Father and Feleasen B. (Mother) had neglected or abused the five older children. The district court held the adjudicatory and disposition hearing pertaining to the first petition in July, September, October, and December 2018, and found the five older children neglected, pursuant to NMSA 1978, Section 32A-4-2(G)(2) (2017, amended 2018).

In January 2020 CYFD moved to terminate the parental rights of Father and Mother (Parents) to the five children, pursuant to NMSA 1978, Section 32A-4-28(B)(2) (2005, amended 2022).

{¶3} CYFD filed the second neglect/abuse petition in May 2019, shortly after the birth of Father's sixth child, N.M., alleging that N.M. was neglected or abused. The district court held the adjudicatory and disposition hearing pertaining to N.M. in July and December 2019, and January 2020, and the court found N.M. neglected, pursuant to Section 32A-4-2(G)(2) In May 2020 the district court entered an order consolidating N.M.'s case with the case of her five older siblings. In June 2020 CYFD moved to amend its motion for termination of Mother and Father's parental rights in the five older children to add N.M., which the district court ordered.

{¶4} The district court held Father's termination of parental rights (TPR) trial in July and November 2020 and later entered its judgment terminating Father's parental rights to Children. Father appeals.

DISCUSSION

I. The Alleged Procedural Violations Do Not Constitute Fundamental Error

{¶5} Father argues the termination of his parental rights to N.M. violated his right to procedural due process, contending that the district court sua sponte added N.M. to the TPR trial midway through the trial with little or no notice. Father also contends the district court took judicial notice of N.M.'s adjudication as a neglected child in the TPR judgment entered after trial, depriving him of notice that the court intended to do so.

{¶6} Father failed to preserve his arguments regarding alleged violations of his procedural due process rights, and therefore, we review for fundamental error. "[T]ermination of parental rights cases can be candidates for fundamental error analysis," and "we will address unpreserved errors that go to the foundation of the case, and which deprive the defendant of rights essential to his [or her] defense. Although fundamental error does not generally apply in civil cases, we will apply the doctrine in exceptional cases." State ex rel. Child., Youth & Fams. Dep't v. Paul P., Jr., 1999-NMCA-077, ¶ 14, 127 N.M. 492, 983 P.2d 1011 (internal quotation marks and citation omitted). We conclude that the alleged procedural violations do not rise to the level of fundamental error, and explain.

{¶7} "Whether an individual was afforded due process is a question of law that we review de novo." State ex rel. Child., Youth & Fams. Dep't v. Rosalia M., 2017-NMCA-085, ¶ 8, 406 P.3d 972 (alteration, internal quotation marks, and citation omitted). "[A]t a minimum, due process in neglect and abuse proceedings requires timely notice reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; a reasonable opportunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by constitution or statute; and a hearing before an impartial decisionmaker." State ex rel. Child., Youth & Fams. Dep't v. Kathleen D.C., 2007-NMSC-018, ¶ 12, 141 N.M. 535, 157 P.3d 714 (internal quotation marks and citation omitted).

{¶8} To the extent Father asserts he never received notice of the allegations underlying the motion to terminate his parental rights to N.M., or that the district court sua sponte added N.M. to the TPR trial midway through the trial, denying him sufficient time to prepare a defense, we disagree.

{¶9} The procedures used by the district court provided "timely notice reasonably calculated to inform," Father that CYFD intended to proceed at the TPR trial with termination of his parental rights to N.M. based on N.M.'s adjudication as a neglected child. See id. Importantly, CYFD moved to amend the motion for termination of parental rights to add N.M. on June 3, 2020, more than a month before the TPR trial began on July 6.^[1] CYFD had previously provided a copy of this motion to amend to Father's counsel, who took no position on the motion. The district court granted the motion on June 3, 2020, and ordered that N.M. be added to CYFD's motion for termination of parental rights. The district court's order states:

The [six C]hildren are different children of the same parents [CYFD] argues that [P]arents have done no work so that [C]hildren can be safely placed with [them]. There will be common questions of law and fact and it is in the interest of judicial economy that they be tried in the same TPR.

{¶10} Although Father asserts that he never received notice of the allegations underlying the motion to terminate his parental rights to N.M., the June 3 order states, "[CYFD] makes the same allegations against [Parents] for [N.M.] as the other five [children]." The allegations in the original motion to terminate Father's parental rights to the five older children, filed in January 2020, included: (1) Parents "have done minimal treatment, missed and [were] late for visits and many drug tests," and "made no progress . . . providing a safe home for their children"; (2) "[t]he underlying causes of . . . neglect cannot be changed in the foreseeable future if [P]arents do no show sobriety or a commitment to safely care for their children," and "[t]hey have not entered inpatient or intense outpatient [substance abuse] treatment"; and (3) "[t]here has been no behavior on the part of [Parents] that would suggest an ability to safely parent the children." This motion also stated that the five older children had been previously adjudicated neglected "because they were without proper parental care and control needed for their . . . well-being."

{¶11} Father was also put on notice of the allegations underlying the motion to terminate his parental rights to N.M. by the judgment and disposition adjudicating N.M. neglected, which the court entered in March 2020, more than three months before the TPR trial began. As the basis for that judgment's adjudication, the district court stated that N.M. was born drug affected, was without proper parental care and control needed for her well-being, there was no stable housing and no items which were needed by baby N.M., and that Parents had failed to take any action over several days to obtain these items. This judgment and disposition also stated that Parents were "still not doing drug tests or other treatment . . . [and] are simply not able to safely care for [N.M.]" Accordingly, Father was put on notice "concerning the subject and issues" that would be at issue in the TPR trial with respect to N.M. in time to "defend against [the] . . . accusation." See Kathleen D.C., 2007-NMSC-018, ¶ 12.

{¶12} Finally, CYFD again gave Father notice of its intent to proceed with termination of his parental rights to N.M. based on N.M.'s adjudication as a neglected child at the beginning of the TPR trial. At that point, CYFD requested that the district court take judicial notice of the court's adjudication of neglect as to the five older children, as well as that adjudication's factual findings, which the court did without objection. CYFD also told the district court that it had tried to locate N.M.'s judgment and disposition in the judiciary's Secured Odyssey Public Access system (SOPA), but had been unable to find it in the system, noting that the confusion was likely due to the consolidation of N.M.'s case with the case of the five older children, but that it would resolve the issue before the next hearing. The district court stated that CYFD would need to find N.M.'s judgment and disposition and present it to the court before it could take judicial notice of its finding, but that CYFD's inability to locate that judgment would not prevent the district court from moving forward with the trial. At the beginning of the second...