335 P.3d 746
N.M.2014Background
- Child born 2006. Father had intermittent early contact but was largely absent from 2008–Feb 2011; Child entered CYFD custody in Dec 2008 after abuse/neglect referral.
- CYFD initially sought and the district court adopted family treatment planning steps; Father was not located/served initially due to a name error and later met CYFD in April 2010 and sought custody.
- Despite Father’s April 2010 contact and a preexisting treatment plan for him, CYFD decided not to evaluate him or pursue reunification and moved to terminate parental rights.
- District court found abandonment and terminated Father’s rights under NMSA 1978, § 32A-4-28(B)(1). The Court of Appeals affirmed. Father appealed to the New Mexico Supreme Court.
- The Supreme Court found statutory ambiguity between § 32A-4-28(B)(1) (abandonment) and (B)(2) (neglect/abuse requiring reasonable efforts), held CYFD should have proceeded under (B)(2) because Father reappeared and attempted to participate, reversed the termination, and remanded for assessments and further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 32A-4-28(B)(1) may be applied to terminate rights when a previously absent parent reappears and seeks custody before termination | Father: If a parent reappears and is willing to participate prior to termination, termination must proceed under (B)(2) (neglect) so CYFD must make reasonable efforts | CYFD: The statute’s plain language allows termination under (B)(1) for abandonment even if the parent reappears; reasonable-efforts requirement applies only to (B)(2) | Court: (B)(1) should be used when a parent is absent prior to termination; when a parent is present and willing to participate before termination, proceedings must proceed under (B)(2). Reversed and remanded for assessments and further proceedings. |
| Whether CYFD’s failure to implement the treatment plan and misstatements to the court affected the validity of the termination | Father: CYFD’s failures deprived the court of a full factual record and prevented required reasonable efforts under (B)(2) | CYFD: (implicit) termination was proper under abandonment ground despite procedural shortcomings | Court: CYFD’s conduct contributed to an incomplete record and improper use of (B)(1); remedies require reassessment under (B)(2). |
| Proper remedial course after determining improper use of (B)(1) | Father: Remand for assessment, treatment, bonding study, and for the court to decide disposition under (B)(2) | CYFD: (implicit) favoring permanency already achieved for child through adoption plan | Court: Remand for assessments of Father and Child (including bonding study); district court to exercise discretion consistent with child’s best interests and statute. |
| Whether statutory text requires CYFD to have "unfettered discretion" to choose (B)(1) vs (B)(2) | Father: No; statute must be read to protect parental rights and require reasonable efforts where parent is present | CYFD: Yes; statutory language permits pursuing (B)(1) even when parent reappears | Court: Statute ambiguous; interpreted in light of policy to limit (B)(1) to absent parents and require (B)(2) when parent is present and willing. |
Key Cases Cited
- Griego v. Oliver, 316 P.3d 865 (N.M. 2014) (interpretive principle: give effect to legislature’s intent and begin with plain meaning)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (parental rights are a fundamental liberty interest requiring fair procedures)
- State ex rel. Children, Youth & Families Dep’t v. Mafin M., 70 P.3d 1266 (N.M. 2003) (parental right to raise child is fundamental but prima facie, not absolute)
- State ex rel. Dep’t Human Servs. v. Peterson, 711 P.2d 894 (N.M. Ct. App. 1985) (termination grounds must be proved by clear and convincing evidence; abandonment and neglect are alternative grounds)
- State v. Smith, 98 P.3d 1022 (N.M. 2004) (caution in applying plain-meaning rule when statute may be ambiguous)
- State v. Rivera, 82 P.3d 939 (N.M. 2004) (statutory provisions must be read in context of the comprehensive legislative scheme)