335 P.3d 746
N.M.2014Background
- Child (born 2006) was removed to CYFD custody in Dec. 2008; father (Anthony Maurice H.) had intermittent contact 2006–2009 and long periods of absence thereafter.
- CYFD mistakenly failed to locate/serve Father early in the case (used incorrect name) and a family treatment plan for Father was entered but not effectively communicated or implemented by CYFD.
- Father contacted CYFD in April 2010, requested custody and visits, but CYFD informed him it would not pursue reunification and moved forward with termination.
- CYFD filed for termination alleging abandonment; district court found abandonment and terminated Father’s rights under § 32A-4-28(B)(1).
- Court of Appeals affirmed; New Mexico Supreme Court granted certiorari and reversed, holding the termination under (B)(1) was improper because Father had been present and willing to participate and thus (B)(2) procedures (reasonable efforts/assessment) applied.
- Supreme Court remanded for assessments (including previously ordered evaluations and a bonding study) and for reconsideration consistent with the Court’s statutory interpretation and Child’s best interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §32A-4-28(B)(1) (abandonment) may be used to terminate when a formerly absent parent reappears and seeks custody before termination | Father: when a parent appears and seeks custody prior to termination, the court must proceed under (B)(2) (abuse/neglect) requiring reasonable efforts and assessment | State/CYFD: (B)(1) is an independent ground; CYFD may pursue termination under (B)(1) even if parent reappears before termination | Court: (B)(1) applies when a parent is absent prior to termination; when a parent is present and willing to participate prior to termination, (B)(2) must be used, so (B)(1) termination here was improper |
| Whether CYFD must make reasonable efforts to assist a parent who reappears prior to termination | Father: CYFD was required to make reasonable efforts to implement the court-ordered treatment plan and assess Father before termination | CYFD: reasonable-efforts requirement applies only when termination is pursued under (B)(2); CYFD can choose (B)(1) without making reasonable efforts | Court: where parent is present and willing to participate, CYFD must use (B)(2) framework (reasonable efforts/assessments); CYFD’s failure to do so undermined the process |
| Remedy on reversal | Father: vacate (B)(1) termination and require assessment/reunification efforts before any new termination determination | CYFD: termination should stand (as affirmed below) to preserve child’s permanency | Court: reversed (B)(1) termination; remanded for assessments (including previously ordered evaluations and a bonding study) and for disposition consistent with Child’s best interests and statutory framework |
Key Cases Cited
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (parents have a fundamental liberty interest in care, custody, and management of their child)
- M.L.B. v. S.L.J., 519 U.S. 102 (U.S. 1996) (termination of parental rights is severe and irreversible; heightened procedural protections required)
- State ex rel. Children, Youth & Families Dep’t v. Benjamin O., 146 N.M. 60 (N.M. Ct. App. 2009) (abandonment terminations need not always trigger provision of services)
- State ex rel. Children, Youth & Families Dep’t v. Mafin M., 133 N.M. 827 (N.M. 2003) (recognition of parental rights as fundamental yet not absolute)
- State ex rel. Dep’t of Human Servs. v. Peterson, 103 N.M. 617 (N.M. Ct. App. 1985) (termination grounds under abandonment and neglect are alternative, independent bases)
- Griego v. Oliver, 316 P.3d 865 (N.M. 2014) (statutory interpretation principles; give effect to Legislature’s intent)