335 P.3d 746
N.M.2014Background
- Child (born 2006) was removed by CYFD in Dec 2008; father (Maurice/Anthony M. H.) had intermittent contact early on, then long periods of absence (no contact 2008–Feb 2011).
- CYFD did not locate/serve father timely (used incorrect name), but father contacted CYFD in April 2010 and requested custody and visits; CYFD told him it would pursue termination and did not pursue placement-evaluation or implement the court-ordered family treatment plan for him.
- CYFD filed for termination March 2010; amended motion misstated that father had had no contact; the district court found abandonment and terminated father’s rights under § 32A-4-28(B)(1).
- Court of Appeals affirmed the termination under (B)(1). Father petitioned for certiorari.
- New Mexico Supreme Court reversed: it held § 32A-4-28 ambiguous as to when (B)(1) vs (B)(2) applies and concluded (B)(1) should be used when a parent is absent prior to termination, whereas (B)(2) (abuse/neglect) should be used when a parent is present and willing to participate so that reasonable efforts and treatment can be pursued.
- Remedy: vacate termination under (B)(1) and remand for assessments (including ordered evaluations and a bonding study) and further proceedings consistent with using (B)(2) where appropriate, to preserve child’s best interests and consider permanency.
Issues
| Issue | Plaintiff's Argument (CYFD) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Proper statutory ground for termination under § 32A-4-28 — whether (B)(1) abandonment may be applied when a parent reappears before termination | CYFD treated abandonment as an independent ground and pursued termination under (B)(1); (B)(1) permits termination without showing reasonable efforts | Father argued (and sought) that because he reappeared and sought custody before termination, the case should proceed under (B)(2) (abuse/neglect) which requires reasonable efforts and treatment | Court held statute ambiguous; construed (B)(1) for truly absent parents and (B)(2) when a parent is present and willing to participate prior to termination — here termination under (B)(1) was improper and must be re-evaluated under (B)(2) framework |
| Whether CYFD must make reasonable efforts once a parent appears and seeks custody prior to termination | CYFD maintained it had discretion to pursue (B)(1) regardless of reappearance | Father argued CYFD was obligated to implement the court-ordered treatment plan and make reasonable efforts to reunify | Court held CYFD must make reasonable efforts and provide assessments/treatment under (B)(2) when a parent appears and is willing to participate; CYFD’s failure justified reversal and remand |
| Effect of CYFD’s procedural/notice failures and misrepresentations | CYFD did not present a competing legal consequence aside from arguing statutory sufficiency | Father argued CYFD’s failures (misnaming, not implementing plan, misstatements to court) deprived him of process and a fair evaluation | Court found CYFD’s conduct produced an incomplete record and influenced the district court’s choice of (B)(1); remanded to allow full assessments and informed district-court discretion |
| Remedy and permanency concerns — how to proceed on remand | CYFD sought finality and permanency for the child (adoption) | Father sought preservation of parental rights and opportunity for assessment/treatment | Court remanded: vacate (B)(1) termination, require assessments (ordered treatment evaluations and bonding study), then permit district court to exercise discretion under § 32A-4-28 (including possible termination under (B)(2) if causes are incurable) while prioritizing child’s best interests and permanency |
Key Cases Cited
- Santosky v. Kramer, 455 U.S. 745 (procedural protections required before terminating parental rights)
- M.L.B. v. S.L.J., 519 U.S. 102 (termination of parental rights is uniquely severe and irreversible)
- Griego v. Oliver, 316 P.3d 865 (N.M.) (statutory interpretation—give effect to legislature’s intent)
- State v. Almanzar, 316 P.3d 183 (N.M.) (de novo review of statutory interpretation)
- State v. Smith, 98 P.3d 1022 (N.M.) (caution in applying plain-meaning rule)
- State v. Rivera, 82 P.3d 939 (N.M.) (consider statute’s role within a comprehensive scheme)
- State ex rel. Children, Youth & Families Dep’t v. Mafin M., 70 P.3d 1266 (N.M.) (recognition of parental rights as fundamental)
- G.R.M. v. W.M.S., 618 S.W.2d 181 (Ky. Ct. App.) (criticizing rigid abandonment-based termination when parent reappears)