STATE OF NEW MEXICO, еx rel., CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. CHRISTOPHER B., Respondent-Appellant, and IN THE MATTER OF SANDRA B. and CHRISTOPHER B., Children.
Docket No. 32,623
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
October 23, 2013
M. Monica Zamora, District Judge
M. Monica Zamora, District Judge
Charles E. Neelley, Chief Children‘s Court Attorney
Rebecca J. Liggett, Children‘s Court Attorney
Santa Fe, NM
for Appellee
Alex Chisholm
Albuquerque, NM
for Appellant
Patricia Anderson
Bosque Farms, NM
OPINION
HANISEE, Judge.
{1} Father appeals a district court order terminating his parental rights to his two children (Children) on the grounds of abandonment. Father argues that the judgment should be set aside as a matter of duе process because he was not given notice or an opportunity to participate in two permanency hearings related to separate allegations of abuse or neglect that preceded the termination of parental rights hearing, of which he was notified and present. Father does not appeal the district court‘s ruling that he abandoned Children or argue that he was denied due process at the termination hearing. Father solely asserts that the district court erred in terminating his рarental rights without first providing him with notice and an opportunity to participate at the permanency stage of the abuse and neglect proceedings. However, we determine that Father‘s participation in hearings regarding abuse and negleсt could not have reasonably altered the court‘s unchallenged findings of abandonment, which served as the basis upon which termination was premised. Thus, we conclude that Father did not suffer a due process violation and affirm the district court‘s termination of рarental rights premised upon abandonment.
I. BACKGROUND
{2} This case arose when law enforcement conducted a welfare check and discovered Children living in deplorable conditions in a residence with seventeen other children. On October 7, 2010, New Mexicо Children, Youth, and Families Department (CYFD) filed a petition alleging abuse and/or neglect by the mother (Mother) of Children. Father was not included as a party in this petition. On December 1, 2010, the district court adjudicated Children as abused or neglected by Mother and ordered CYFD to implement a treatment plan for Mother. On January 31, 2011, the court held an initial judicial review hearing to evaluate Mother‘s progress with the treatment plan. On February 15, 2011, Father was added as a party to the petition and was served on June 11, 2011. Father was then аrrested and incarcerated on charges including criminal sexual penetration in the first degree and criminal sexual contact of a minor; he remained incarcerated throughout the completion of the termination.
{3} On July 28, 2011, the court held an initial pеrmanency hearing as to Mother and accepted CYFD‘s permanency plan proposing adoption of the two children. This was followed by a second permanency hearing on October 18, 2011 where the district court again approved the adoption permanency plan for the children. Father did not receive notice of either permanency hearing nor was he adjudicated as to the abuse and/or neglect allegations.
{4} Following the court‘s approval of the permanency plan, CYFD filed a motion to terminate the parental rights of both Mother and Father on October 27, 2011. The motion
{5} Immediately prior to the termination hearing, on Januаry 30, 2012, the district court granted Father‘s motion to dismiss the abuse or neglect petition; however, the court found that
II. DISCUSSION
{6} The question of whether an individual was denied due process is a question of law that we review de novo. State ex rel. Children, Youth & Families Dep‘t v. Mafin M., 2003-NMSC-015, ¶ 17, 133 N.M. 827, 70 P.3d 1266. “The essence of due process is notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” State ex rel. Children, Youth & Families Dep‘t v. Maria C., 2004-NMCA-083, ¶ 26, 136 N.M. 53, 94 P.3d 796 (internal quotation marks and citation omitted). In New Mexico, because we recognize a fundamental liberty interest in the right to custody of one‘s child, parents have a due process right to meaningfully participate in a hearing for the termination of their parental rights. State ex rel. Children, Youth & Families Dep‘t v. Ruth Anne E., 1999-NMCA-035, ¶ 25, 126 N.M. 670, 974 P.2d 164. Generally, parents also have a right to receive effective notice and have an opportunity to particiрate at the permanency stage of an abuse and neglect adjudication involving their child. See Maria C., 2004-NMCA-083, ¶ 34 (holding that, generally, parents have a due process right to participate in a permanency hearing because the opportunity to defend against charges of abuse and neglect may prevent a termination of parental rights). However, a parent‘s right to be present at a permanency hearing is not absolute. Id. ¶ 33. This right only exists where a parent‘s involvement could aid or benefit the defense, or where prejudice to a liberty interest could be avoided by the parent‘s presence at the proceeding. Id.
{7} To evaluate a claim alleging a denial of due process, we utilize the balancing test established in Mathews v. Eldridge, 424 U.S. 319 (1976). Maria C., 2004-NMCA-083, ¶ 37. The Mathews test requires that we weigh three factors: (1) the parent‘s interest; (2) “the risk to [the parent] of an erroneous deprivation through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;” and (3) the government‘s
{8} Father states that “there is a reasonable likelihood that had he been a party to the case and allowed to pаrticipate in the permanency plans the outcome would have been different.” We recognize that there is a strong correlation between permanency hearings and a termination of parental rights based on abuse and neglect, and thеre are circumstances where a hearing for the termination of parental rights can be avoided based on the findings in the permanency hearing. Id. ¶ 34 (“If parents are not afforded an early opportunity to defend against charges of abuse and neglect before the end stage, termination may very well be a foregone conclusion.“) However, Father does not demonstrate how or why his presence at the permanency hearings might have changed the outcome in any way. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.“) Nor does Father challenge the sufficiency of the evidence in support of the finding of abandonment on appeal. Where Father has no proof to rebut the district court‘s conclusion that he abandoned Children, we cannot conclude that his presence at the permanency hearings regarding abuse and neglect might have benefitted his defense and changed the outcome of the termination premised on abandonment. See State ex rel. Children, Youth & Families Dep‘t v. Benjamin O., 2009-NMCA-039, ¶¶ 30-31, 146 N.M. 60, 206 P.3d 171; In re C.P., 1985-NMCA-102, ¶ 16, 103 N.M. 617, 711 P.2d 894. Father‘s bald assertion does not satisfy the test for prejudice in Mathews.
{9} Abuse or neglect and abandonment are separate and independent grounds for the termination of parental rights, and they have a distinct set of statutorily created requirements. See Benjamin O., 2009-NMCA-039, ¶ 30. In cases where the district court adjudicates a child as having been abused or neglected by a parent, CYFD is statutorily required to create a treatment plan for that parent prior to any final determination of parental rights. See
{10} In cases оf abandonment, however, these statutory safeguards are not prescribed. See Benjamin O., 2009-NMCA-039, ¶ 30 (“[The] provisions are silent as to the procedure for allegations of abandonment.“) Where a parent has abandoned a child, there is no statutory requirement thаt a treatment plan be implemented. See id. ¶ 31 (“There is no indication that a parent who has abandoned the child must receive services or benefit from a treatment plan.“) Therefore, there is no judicial review to be followed by a permanency hearing to determine the placement of the child. See
{11} Father theorizes that the result of the termination of parental rights would have been different had he been afforded the opportunity to be present for the permanency hearings; however, we are unpersuaded. Although we recognize that CYFD initiаlly moved to terminate Father‘s parental rights on abuse or neglect grounds, the district court agreed with Father that the allegations were insufficiently pleaded, and the case proceeded solely on the basis of abandonment. Thus, Father was not subjected to a deprivation of any parental liberty interest associated with the alleged and unproven abuse or neglect of Children by him. See Maria C., 2004-NMCA-083, ¶ 33. Any permanency hearing to which Father could have been present would be relevant only to the allegаtions of abuse or neglect, which did not serve as the basis for Father‘s termination. Therefore, any evidence Father could present at the permanency hearing would be relevant only to the determination of where Children should permanently reside. Sеe Browind C., 2007-NMCA-023, ¶ 24.
{12} Abandonment is a stand alone basis for termination of parental rights. See
{13} For the foregoing reasons, we affirm the district court‘s order terminating Father‘s parental rights.
{14} IT IS SO ORDERED.
J. MILES HANISEE, Judge
WE CONCUR:
CYNTHIA A. FRY, Judge
MICHAEL E. VIGIL, Judge