350 P.3d 1251
N.M. Ct. App.2015Background
- Child born March 2013 tested positive for illegal drugs; CYFD obtained ex parte custody and later filed an amended abuse/neglect petition.
- Father was in custody in Colorado and had little contact with the child between March and September 2013; he was served with the petition while incarcerated.
- On November 4, 2013 Father entered a no-contest plea and the court adjudicated the child neglected under Section 32A-4-2(E)(2); the court discussed that a treatment plan would follow and postponed disposition thirty days.
- CYFD notified it would pursue termination of parental rights (TPR); the court refused Father’s request to vacate the TPR hearing and held a combined dispositional/TPR hearing on December 9, 2013 (35 days after adjudication).
- The court ignored the earlier neglect adjudication and proceeded solely on abandonment theories (Sections 32A-4-28(B)(1) and (B)(3)), found abandonment by clear-and-convincing evidence, and terminated Father’s parental rights; Father appealed.
Issues
| Issue | Plaintiff's Argument (CYFD) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether a dispositional hearing and treatment plan were required after an adjudication of neglect | Not required if CYFD proceeds to TPR on abandonment theories; no duty to create treatment plan if abandoning theory is used | Adjudication of neglect triggers statutory duty to hold dispositional hearing and require a treatment plan so Father can attempt reunification | Court must follow Section 32A-4-22(B)(2) after an adjudication of neglect; dispositional hearing/treatment plan required and failure to hold one was error |
| Whether the court could ignore its neglect adjudication and proceed solely on abandonment | Christopher B. permits TPR on abandonment without prior neglect finding | Once neglect is adjudicated the court cannot ignore it and must proceed under B(2) before terminating rights | Court erred in ignoring the neglect adjudication; Christopher B. is distinguishable and does not permit that course here |
| Whether Subsection (B)(1) (abandonment) rather than (B)(2) (abuse/neglect) applied | Father was effectively absent and lacked a legitimate desire to reunify, so (B)(1) applied | Parties and court treated the case as an abuse/neglect matter; Father expressed intent to work a treatment plan, so (B)(2) controls | Under In re Grace H. and the record here, (B)(2) governed and (B)(1) was inapplicable |
| Whether presumptive abandonment under (B)(3) supported termination | Presumptive abandonment is a standalone basis permitting termination without a treatment plan | Record lacks findings/evidence on the six (B)(3) factors; (B)(3) not established | Court’s (B)(3) conclusion was unsupported by findings/evidence and is rejected |
Key Cases Cited
- State ex rel. Children, Youth & Families Dep’t v. Christopher B., 316 P.3d 918 (N.M. Ct. App. 2014) (distinguishes abandonment and neglect; affirmed TPR on abandonment where neglect was dismissed)
- In re Grace H., 335 P.3d 746 (N.M. 2014) (interprets when Subsections (B)(1) versus (B)(2) apply; (B)(1) for completely absent parents, (B)(2) where parent is present and willing to take responsibility)
- State ex rel. Children, Youth & Families Dep’t v. Benjamin O., 160 P.3d 601 (N.M. Ct. App. 2007) (holding that adjudication of abuse/neglect requires a treatment plan)
- In re Esther V., 248 P.3d 863 (N.M. 2011) (overview of abuse and neglect proceedings and required stages)
- State ex rel. Children, Youth & Families Dep’t v. Patricia H., 47 P.3d 859 (N.M. Ct. App. 2002) (discusses statutory prerequisite that CYFD make reasonable efforts before TPR under (B)(2))