STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT v. MELVIN C. and SAMANTHA M., IN THE MATTER OF DAEVON DRE C.
NO. 33,605
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
April 27, 2015
Sandra A. Price, District Judge
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Charles E. Neelley, Chief Children‘s Court Attorney
Kelly P. O‘Neill, Children‘s Court Attorney
Albuquerque, NM
for Appellee
Alex Chisholm
Albuquerque, NM
for Appellant
Richard J. Austin, PC
Richard J. Austin
Farmington, NM
Guardian Ad Litem
OPINION
KENNEDY, Judge.
{1} This case resides between our Opinion in State ex rel. Children, Youth & Families Dep‘t v. Christopher B., 2014-NMCA-016, 316 P.3d 918, and the Supreme Court‘s Opinion in In re Grace H., 2014-NMSC-034, 335 P.3d 746. In this case, we hold that, when a parent pleads no contest to abuse and neglect and the lower court proceeds with an adjudication on that basis, the court, if it terminates parental rights, must proceed under
I. BACKGROUND
{2} Child was born in March 2013 to Melvin C. (Father) and Samantha M. (Mother) and tested positive for illegal drugs. Following a Family Centered Meeting on March 5, 2013, where Father and Mother appeared telephonically, an amended neglect or abuse petition was filed by CYFD. The court entered an ex parte custody order on March 7, 2013, giving CYFD legal and physical custody of Child. A custody hearing was held on March 18, 2013, which Father did not attend. During that hearing, the court found that Child could not be safely returned to Father and Mother due to substance abuse and “the inability to provide safe housing.” A custody hearing order filed on April 8, 2013, provided notice of a subsequent adjudicatory and dispositional hearing. On August 6, 2013, CYFD filed a motion for termination of parental rights as to both Father and Mother, alleging abandonment, abuse and neglect, and presumptive abandonment as grounds for termination. Father had no contact with Child or CYFD from March 2013 until September 2013, when he was served with the petition for neglect and abuse in a prison in Colorado to which he had been sentenced a few months earlier. The court set a hearing
{3} At the November 4 hearing that Father entered a no contest plea to an allegation of neglect under
{4} While CYFD pursued termination of Mother‘s parental rights based on abandonment during the November 4 hearing, Father‘s involvement was limited to the neglect and abuse adjudication. The court explained to Father that one of the consequences of its making a finding of neglect was the development of a treatment plan. Father stated that he understood the court‘s explanation. In the course of establishing the factual basis for the plea, CYFD made a short statement, concluding that, for a variety of reasons, Father was “unable to provide the needs of . . . Child.” CYFD‘s only reference to abandonment by Father came in the context of the TPR hearing against Mother at that time. Despite CYFD‘s failure to mention abandonment as grounds for an adjudication of neglect as to Father, the court added: “I‘m assuming also part of this is, you mentioned it, but also based on a failure to provide because he abandoned . . . [C]hild,” to which CYFD answered simply, “yes.”
{5} Following CYFD‘s foundational statements, the court accepted Father‘s stipulation to neglect and made “a finding of neglect, pursuant to
{6} On November 21, 2013, CYFD informally notified Father that it intended to pursue termination of his parental rights at the next hearing scheduled for December 9, rather than conduct a dispositional hearing. In response, on November 25, 2013, Father filed a motion to vacate the TPR hearing. The motion was denied. The notice of hearing issued on December 4, 2013, listed the nature of the December 9, 2013, hearing as “[d]ispositional [and] TPR.” Thirty-five days after the adjudicatory hearing, the court held a hearing, during which it characterized the previous adjudicatory hearing as a “little meeting.”
{7} At the beginning of the December 9 hearing, which occurred after the
The court [will] not use any findings made at previous hearings regarding any kinds of findings. . . . I know there was an entry of a stipulation based on some . . . representations that . . . there would be a treatment plan he would be entitled to work. The court will not consider that adjudication.
{8} CYFD then proceeded to establish the basis for termination of Father‘s parental rights based solely on an abandonment theory. Because CYFD intended to proceed only on the theory of abandonment, the court determined it would be appropriate to proceed. Relying on Christopher B., 2014-NMCA-016, ¶ 12, the court believed it was appropriate to allow CYFD to “move forward without even a finding of neglect or abuse prior to proceeding on the theory of terminating someone‘s parental rights based on a theory of abandonment.” The court emphasized that it was not considering a termination based on failure to follow a treatment plan because a treatment plan had not been adopted in the case, further stating that CYFD has a right, when claiming abandonment, to proceed on that theory at any time.
{9} After hearing testimony in the case, the court found that CYFD had proven, by clear and convincing evidence, Father abandoned Child. The court stated that “abandonment is a separate analysis in this case,” and “it is not necessary that [CYFD] develop a treatment plan when the allegation of abandonment is being made and pursued and proven.” In its findings of fact and conclusions of law, the court acknowledged that “[a d]ispositional [h]earing was not held” in the case, and it had allowed CYFD “to proceed only on the allegations of [a]bandonment.” The court concluded that “[c]lear and convincing evidence exists that Father abandoned Child pursuant to
II. DISCUSSION
{10} “This Court reviews issues of statutory interpretation de novo.” In re Grace H., 2014-NMSC-034, ¶ 34. The parties dispute whether the court properly complied with the Abuse and Neglect Act,
A. Overview of New Mexico Abuse and Neglect Proceedings
{11} The procedures required by the Abuse and Neglect Act are of paramount importance in this case. Accordingly, we begin with an overview of the relevant steps the Children‘s Code sets out in an abuse and neglect proceeding. See In re Esther V., 2011-NMSC-005, ¶ 25, 149 N.M. 315, 248 P.3d 863 (providing an “[o]verview of New Mexico [a]buse and [n]eglect [p]roceedings” (emphasis omitted)). An abuse and neglect proceeding begins when CYFD files a petition with the court alleging abuse or neglect.
{13} During the adjudicatory hearing, the court may make a determination of abuse or neglect on the basis of a valid admission.
{14} At any point during an abuse or neglect proceeding, CYFD may file a motion to terminate parental rights.
(3) [T]he child has been placed in the care of others, including care by other relatives, either by a court order or otherwise and the following conditions exist:
(a) the child has lived in the home of others for an extended period of time;
(b) the parent-child relationship has disintegrated;
(c) a psychological parent-child relationship has developed between the substitute family and the child;
(d) if the court deems the child of sufficient capacity to express a preference, the child no longer prefers to live with the natural parent;
(e) the substitute family desires to adopt the child; and
(f) a presumption of abandonment created by the conditions described in Subparagraphs (a) through (e) of this paragraph has not been rebutted.
the child has been a neglected or abused child as defined in the Abuse and Neglect Act and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts by the department or other appropriate agency to assist the parent in adjusting the conditions that render the parent unable to properly care for the child.
B. The Court Was Required to Hold a Dispositional Hearing After Entering a Finding That Father Neglected Child
1. The Court Did Not Comply With the Abuse and Neglect Act‘s Procedures
{16} CYFD asserts that the court did not err by failing to issue a treatment plan and reasons that, under our case law, a court is not required to create a treatment plan when CYFD pursues TPR pursuant to
{17} Where there is a finding of neglect or abuse under
{18} In Christopher B., this Court affirmed a court‘s decision allowing CYFD to proceed with a TPR solely on an abandonment theory. 2014-NMCA-016, ¶ 12. There, the allegations of abuse or neglect in the case had already been dismissed for insufficient pleading. Id. ¶ 11. The facts of Christopher B. are dissimilar to the facts here. However, this Court did discuss
{19} The court below relied on the language regarding abandonment in Christopher B. without considering the context in which that decision was made when it allowed the TPR hearing to proceed solely on the theory of abandonment. Christopher B. specifically acknowledges the statutory requirement for a treatment plan when the court makes a finding of neglect, as it did in this case. Id. Therefore, while CYFD carries no duty to assist parents with reunification when it proceeds to termination of parental rights under an abandonment theory alone, an adjudication of neglect under
This statement was insufficient to vacate the adjudications of neglect. It also does not serve as a dismissal of the neglect petition as was done in Christopher B. The district court therefore erred by failing to fulfill its statutory duties under the adjudication of neglect that it had previously entered as it was required to do by statute.
2. The Court Did Not Use the Appropriate Subsection of 32A-4-28 When It Terminated Father‘s Parental Rights
{20} CYFD argues that Father did not show a legitimate desire to take responsibility for Child prior to the TPR as required by In re Grace H., that he was therefore not entitled to a TPR analysis under
{21} In In re Grace H., the Supreme Court addressed the ambiguity regarding when to terminate parental rights on a theory of abandonment under
{22} The
{23} CYFD argues that, because Father had no contact with Child and made little effort to get in contact with Child, Father had no “legitimate desire” to take responsibility for Child. We disagree. CYFD interprets the phrase “legitimate desire” used in In re Grace H. too literally. 2014-NMSC-034, ¶ 43 (”
{24} CYFD argues further that Father‘s rights were properly terminated pursuant to a theory of “presumptive abandonment.” See
{25} Although the court cited
III. CONCLUSION
{26} The court terminated Father‘s parental rights under abandonment after making a
{27} IT IS SO ORDERED.
RODERICK T. KENNEDY, Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
TIMOTHY L. GARCIA, Judge