366 P.3d 282
N.M. Ct. App.2015Background
- Child (born Aug. 20, 2012) was taken into CYFD custody Jan. 24, 2013; Father was incarcerated for a DWI and subject to immigration hold and was later deported to Mexico in Sept. 2013.
- Father pleaded no contest to neglect (failure to provide basic necessities) in March 2013 and a treatment plan was adopted requiring assessments, therapy, random urinalyses, weekly contact, stable housing, parenting education, and maintenance of contact/support.
- After deportation, Father cooperated with the Mexican Consulate: a home study, a psychological evaluation, a negative drug screen (not testing for alcohol), and six therapy sessions were completed; Father also obtained employment in Mexico.
- CYFD moved to terminate Father’s parental rights shortly after deportation, relying initially on abandonment and noncompliance; at trial CYFD argued both abandonment under §32A-4-28(B)(1) and that the causes/conditions of neglect were unlikely to change under §32A-4-28(B)(2).
- The district court found abandonment, continued causes of neglect, likelihood those causes would not change, and that CYFD made reasonable efforts; it terminated Father’s rights.
- The Court of Appeals reversed as to both §32A-4-28(B)(1) and (B)(2), concluding (1) Grace H. controls so termination under (B)(1) was improper because Father was present and sought reunification, and (2) CYFD did not present clear and convincing, substantial evidence that causes/conditions were unlikely to change or that CYFD made reasonable efforts.
Issues
| Issue | Plaintiff's Argument (CYFD) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Use of abandonment statute §32A-4-28(B)(1) | Father abandoned Child (no contact/support for >3 months); mandatory termination. | Father maintained contact/expressed desire to parent and engaged with services after deportation. | Court: Reversed — Grace H. limits (B)(1) to absent parents; Father was present and showed legitimate desire to reunify. |
| Sufficiency: Neglect and causes unlikely to change (§32A-4-28(B)(2)) | Father had past DWI/substance history, limited compliance (one drug screen, late assessments), incomplete parenting/domestic violence remediation; risks persist. | Father completed home study, psychological eval, therapy in Mexico and obtained work; CYFD failed to reassess or obtain missing information; evidence of ongoing risk was speculative/stale. | Court: Reversed — CYFD failed to produce clear and convincing, substantial evidence that causes/conditions would not change. |
| Sufficiency: CYFD made reasonable efforts to assist reunification | CYFD used the Consulate, requested home study/psych eval, explored U.S. relatives, communicated initial plan; termination timely to protect child. | CYFD ceased active engagement after deportation, did not request needed follow-up (alcohol testing, reassessment, clarify home study), and moved to terminate soon after requesting Consulate help. | Court: Reversed — CYFD did not meet its statutory duty to make reasonable efforts or to carry its burden; efforts were insufficient. |
| Best interests / language barrier | Child stable in U.S. foster home; Father’s lack of contact and language barrier impede bond and warrant permanency. | Language difference and lack of recent contact are not dispositive; insufficient evidence that language prevents reunification; CYFD’s evidentiary gaps prejudiced Father. | Court: Remanded — Court skeptical that language alone justified termination given evidentiary deficiencies and inadequate CYFD efforts. |
Key Cases Cited
- In re Grace H., 335 P.3d 746 (N.M. 2014) (limits §32A-4-28(B)(1) abandonment termination to absent parents and distinguishes (B)(2) where parent is present and seeks reunification)
- State ex rel. Children, Youth & Families Dep’t v. Hector C., 185 P.3d 1072 (N.M. Ct. App. 2008) (evidence stale and need for CYFD reevaluation after changed circumstances)
- State ex rel. Children, Youth & Families Dep’t v. Patricia H., 47 P.3d 859 (N.M. Ct. App. 2002) (treatment-plan purposes and use of ASFA fifteen-month touchstone in reasonable-efforts analysis)
- State ex rel. Children, Youth & Families Dep’t v. Laura J., 301 P.3d 860 (N.M. Ct. App. 2013) (duty to identify, locate, and evaluate relatives for placement under §32A-4-25.1(D))
- State ex rel. Children, Youth & Families Dep’t v. Athena H., 142 P.3d 978 (N.M. Ct. App. 2006) (requirement of expert or substantial evidence when mental health substantiates persistence of neglect)
- In re Adoption of Doe, 648 P.2d 798 (N.M. Ct. App. 1982) (standard on abandonment and kinds of conduct that constitute abandonment)