STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT v. ALFONSO M.-E.
NO. 33,896
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
December 14, 2015
IN THE MATTER OF URIAH F.-M., Child. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, William E. Parnall, District Judge
Charles E. Neelley, Chief Children‘s Court Attorney
Kelly P. O‘Neill, Children‘s Court Attorney
Albuquerque, NM
for Appellee
Nancy L. Simmons
Albuquerque, NM
for Appellant
Peter G. Tasso Law Firm, P.C.
Peter G. Tasso
Albuquerque, NM
Guardian Ad Litem
WECHSLER, Judge.
{1} Father, Alfonso M.-E., appeals from the district court‘s judgment terminating his parental rights to Child, Uriah F.-M., under two statutory provisions of the Abuse and Neglect Act (ANA), {3} Child was born on August 20, 2012 to Father and Mother. On January 24, 2013, CYFD took Child into custody after receiving an emergency referral alleging physical neglect and a lack of adequate supervision of Child by Mother, who reportedly had been arrested on outstanding warrants. CYFD also took Child‘s half-brother, Isaac K., born April 11, 2005, into custody and placed the two with the same foster family. Father is not the biological father of Child‘s half-brother. {4} On January 28, 2013, CYFD filed a neglect and abuse petition against Father and Mother, alleging that Child was without proper parenting or parental supervision {5} At the adjudicatory and dispositional hearing held on March 8, 2013, Father appeared with the aid of an interpreter and entered a plea of no contest to the allegations in CYFD‘s petition, acknowledging that Child was a “neglected” child pursuant to {6} Father spoke through an interpreter at the initial judicial review hearing on May 17, 2013 to inform the court that he was currently incarcerated and serving his sentence for his DWI conviction and that he might face immigration detention and deportation to Mexico following completion of his sentence. CYFD‘s judicial review report, which the court adopted by reference, indicated that Father had “done as much as possible considering his current incarceration and [immigration] hold” but that Father was “also waiting to be deported, and may not be able to be a consistent caretaker for [Child].” The report also noted that Father had “engaged in [an addiction treatment program], but hasn‘t been able to do any further substance abuse programs due to his current incarceration and [immigration] hold.” The report additionally stated that Father “has written letters to [his permanency planning worker (PPW)] regarding [Child] and his [incarceration] status” and provided CYFD the names of {7} In August 2013, Father was transferred from New Mexico to a federal holding facility in El Paso, Texas for immigration processing. He was subsequently deported to Mexico in September 2013. Father called his PPW, Frances Steckbauer, and left her a voicemail after he arrived in Mexico. During this time, CYFD requested the Mexican Consulate‘s assistance in conducting a psychological evaluation of Father and a study of Father‘s sister‘s home in Mexico where Father was living. Additionally, with the help of the Consulate, Steckbauer coordinated a telephone call with Father in October 2013 and told Father to maintain monthly communication with CYFD. {8} Shortly thereafter, on October 28, 2013, CYFD moved to terminate Father‘s parental rights to Child. CYFD asserted that Father, “[w]ithout justifiable cause, . . . ha[d] not communicated with or provided support for [Child] in over 3 months” and “ha[d] abandoned [Child].” Moreover, CYFD argued, Father was “in substantial non-compliance with his treatment plan[.]” Among Father‘s failures, CYFD stated that Father had not completed the required assessments, provided proof to CYFD that he had obtained safe and stable housing, provided random urinalyses, {9} The following week, on November 4, 2013, the court held the initial permanency planning hearing. Father was not present at the hearing but was represented by his attorney who notified the court that Father had been deported. CYFD informed the court that CYFD had stayed in contact with the Consulate, which provided CYFD an address and the phone number for Father in Mexico as well as the names of some of Father‘s relatives living in Mexico. However, CYFD further represented that Father had made no attempts “to contact [CYFD] at all [after his deportation], even though Ms. Steckbauer made sure [Father] had all of [CYFD‘s] contact information.” Although the court approved changing CYFD‘s plan from reunification to adoption, the court explicitly asked CYFD to “continue trying to open a line of communication with [Father] to determine what, if anything, he wants to do to work his plan.” {10} In accordance with CYFD‘s request through the Consulate, Mexican officials conducted a study of Father‘s sister‘s home on November 5, 2013. Father, who was employed as a day laborer, provided his financial information as part of the study. A {11} Father‘s termination of parental rights trial began on January 10, 2014. Father appeared telephonically and was assisted by an interpreter. In its opening argument, CYFD argued that Father had failed to comply with his treatment plan by not completing “even the minimal things he could have done while he was incarcerated” in New Mexico and that Father had “only done the minimal that he can since he left the United States.” CYFD pointed out that Father had not completed a mental health assessment “until just recently” and that he had not completed substance abuse {12} Steckbauer testified that she developed Father‘s treatment plan based on the circumstances of his incarceration as well as his disclosures about his DWI and substance abuse history. Steckbauer explained that she visited Father monthly during his incarceration in New Mexico until August 2013 and that CYFD had mailed Father a copy of his treatment plan after he was deported. She testified that since Father‘s deportation, she had two telephone calls with Father that were facilitated by the Mexican Consulate to assess Father‘s situation. Steckbauer stated that Father completed the home study and psychological evaluation that CYFD requested through the Consulate “but [Father] hasn‘t completed any follow-up services.” She also stated that Father submitted a urinalysis but had “not specifically completed a substance abuse assessment” and that she had not received proof of Father‘s completion of an addiction treatment program he engaged in during his incarceration {13} In Steckbauer‘s opinion, CYFD would have no justification to split up Child‘s current placement with his foster family, where Child had lived with his half-brother since the inception of the case. She stated that Child was very young when he entered the home, that “this is the home that [Child] knows[,]” and that “he‘s very comfortable.” Steckbauer also testified that Child also had specific needs related to his speech development and was receiving early intervention services. During her few phone calls with Father, Steckbauer “worked to keep him informed of [Child‘s] well-being,” but she stated that Father has not had any “hands-on experience” in addressing Child‘s needs. Steckbauer testified that Father told her that he cares for {14} During cross-examination, Steckbauer testified that the Consulate had sent her an email with Father‘s home study and urinalysis results, but she admitted that she had not seen Father‘s psychological evaluation. She did not recall the date of the evaluation and did not have a copy of the evaluation in her file. Steckbauer also testified that she had not seen the December 18, 2013 letter regarding Father‘s therapy sessions. She stated that the evaluation and letter may be included in a packet of documents that she recently received from the Consulate, but she had not yet reviewed the documents. Nevertheless, Steckbauer testified, she knew the outcome {15} Before trial resumed in February 2014, CYFD filed an amendment to its motion for termination, incorporating the grounds alleged in its original motion and asserting the additional ground that Father had abandoned Child. The court also held a subsequent permanency hearing on January 27, 2014. Father appeared telephonically and was assisted by an interpreter. CYFD informed the court that its amendment to its motion for termination was based on information CYFD received at the trial, specifically that Father had not contacted Child or provided support for Child. CYFD also argued that the psychological evaluation Father received in Mexico recommended that he receive various types of counseling but that Father had done nothing to obtain the services. In its permanency hearing order, the court found that Father “made some efforts to comply with and cooperate in the treatment plan” but that Father had not made progress toward alleviating the causes that precipitated {16} Steckbauer‘s testimony resumed on the second and final day of the termination trial, February 13, 2014. Her testimony revealed that her final conversation with Father occurred in early December 2013, prior to her receipt of Father‘s psychological evaluation and before Father began his therapy sessions. She testified that she talked with Father about scheduling the therapy sessions recommended by the psychological evaluation and that she asked Father to address parenting issues and his substance abuse history during the sessions. Steckbauer also informed Father that she had received the home study, but she did not discuss the results of the study with Father or notify him of any additional information that CYFD needed. At that time, Father inquired about Child, expressed that he wanted Child with him in Mexico, and asked Steckbauer for a picture of Child, which Steckbauer stated she did not send to Father. {17} Father‘s counsel introduced a January 30, 2014 letter from the Mexican psychologist who had conducted Father‘s psychological evaluation. The letter, which Steckbauer said she had received from the Consulate, stated that Father “completed the psychological therapy [sessions] on January 23, of this year, showing favorable control of emotions[.] Likewise, regarding the topic of [parenting] covered in therapy {18} During redirect examination, CYFD elicited testimony from Steckbauer that was critical of the home study and psychological evaluation requested through the Consulate. With regard to the home study, Steckbauer testified that the study did nothing to explore Father‘s possible criminal history or whether there had been abuse or neglect allegations against Father in Mexico. She also said that she had no knowledge of how long it took Mexican investigators to complete the home study, {19} At the conclusion of testimony, the court terminated Father‘s parental rights to Child. In its judgment, the court found that there was clear and convincing evidence that (1) Father abandoned Child, (2) Father had not alleviated the conditions and causes of neglect, (3) the conditions and causes of neglect were unlikely to change in the foreseeable future, and (4) CYFD made reasonable efforts to assist Father in adjusting those conditions. The court further found that termination “would promote the physical, mental, and emotional welfare and needs of [Child].” This appeal followed. {20} As an initial matter, we address the district court‘s termination of Father‘s parental rights on grounds of abandonment under {21} The ANA‘s definition of “abandonment” encompasses “instances when the parent, without justifiable cause... left the child with others, including the other parent or an agency, without provision for support and without communication for a period of . . . three months if the child was under six years of age.” {22} In In re Grace H., our Supreme Court curtailed the statutory requirement that a court “shall terminate parental rights” under {23} In this case, the motions CYFD filed with the district court and the district court‘s judgment failed to identify which statutory mechanism was used to terminate Father‘s parental rights on the basis of abandonment. Our review of the record nonetheless reveals that CYFD proceeded under a theory of abandonment pursuant to {24} It is important to note that the district court did not terminate Father‘s rights based on presumptive abandonment. Accordingly, our holding does not reach the question of whether presumptive abandonment was an appropriate basis for termination under the specific circumstances of this case. See, e.g., {25} Father also challenges the sufficiency of the evidence underlying the district court‘s judgment terminating his parental rights to Child under {26} “Terminating parental rights implicates rights of fundamental importance.” State ex rel. Children, Youth & Families Dep‘t v. Hector C., 2008-NMCA-079, ¶ 11, 144 N.M. 222, 185 P.3d 1072. Accordingly, clear and convincing evidence is the standard of proof for termination of parental rights cases. {27} The ANA requires that CYFD carry the clear and convincing evidentiary burden of proof in termination of parental rights cases. Under {28} Father first contends that there was not clear and convincing evidence to support the district court‘s finding that he neglected Child because Father‘s plea and the court‘s adjudication under {29} Our standard of review for the district court‘s adjudication of neglect “is a narrow one.” In re Termination of Parental Rights of Eventyr J., 1995-NMCA-087, ¶ 3, 120 N.M. 463, 902 P.2d 1066. Father suggests that evidence that arose after the district court‘s adjudication of neglect should nullify the court‘s finding, but our review is restricted “to a determination of whether the district court could have found [neglect] based upon the evidence before it.” State ex rel. Children, Youth & Families Dep‘t v. Shawna C., 2005-NMCA-066, ¶ 7, 137 N.M. 687, 114 P.3d 367. We therefore reject Father‘s argument that his release from jail after the district court‘s {30} The district court adjudicated Child as neglected by Father pursuant to {31} It is true that Father‘s incarceration status alone is not sufficient for the district court to find that Father neglected Child. See Shawna C., 2005-NMCA-066, ¶ 30 (concluding that the ANA “does not permit a court to find abuse or neglect based solely on a parent‘s [incarceration] status“). However, despite Father‘s incarceration {32} Father next argues that clear and convincing evidence did not support the district court‘s finding that the causes and conditions of Child‘s neglect were unlikely to change in the foreseeable future. Father argues that (1) he promptly cooperated with his treatment plan requirements after his deportation, (2) the court improperly relied on evidence of his past history to support the termination of his parental rights, (3) CYFD‘s assertions regarding his mental health diagnosis were speculative and failed to comport with the court‘s original finding of neglect, and (4) the district {33} In reviewing Father‘s sufficiency claim, we are mindful that a treatment plan under the ANA “identifies, addresses, and attempts to correct those circumstances and conditions which rendered the child abused or neglected.” State ex rel. Children, Youth & Families Dep‘t v. Michelle B., 2001-NMCA-071, ¶ 38, 130 N.M. 781, 32 P.3d 790. At trial, Steckbauer testified that she based her development of Father‘s treatment plan on his disclosures about “his DWI history [and] substance abuse history” and the “restrictions of [Father‘s] criminal situation[.]” Related to these causes and conditions, the evidence must be substantial to meet the statutory condition that Father was unlikely to alleviate them in the foreseeable future. Patricia H., 2002-NMCA-061, ¶ 22. We have construed “foreseeable future” to “refer to corrective change within a reasonably definite time or within the near future.” Id. ¶ 34 (internal quotation marks and citation omitted). {34} CYFD initiated termination proceedings approximately one month after Father was deported. At that time, Child had been in CYFD‘s custody for nine months. Steckbauer testified that she never received proof of Father‘s completion of the addiction treatment program during his incarceration in the United States, but the evidence presented to the district court at trial focused primarily on Father‘s {35} The district court did not enter a finding that CYFD presented evidence that Father‘s alcohol and substance abuse persisted as a continuing cause and condition of neglect. Father therefore challenges the district court‘s termination decision by arguing that the district court erred in relying on stale and speculative evidence that was based on generalizations of Father‘s past conduct. In response, CYFD points to the evidence of Father‘s previous DWI conviction, which CYFD argues resulted from Father‘s “history of substance abuse” and cites Father‘s submission of “only one drug screen” that did not test for alcohol. {37} In the absence of evidence showing any efforts on the part of CYFD to obtain additional urinalyses, we do not believe that Father‘s submission of one inconclusive {38} As additional evidence of the persistence of Father‘s “history of substance abuse” as a cause and condition of neglect, CYFD relies on Steckbauer‘s testimony that six therapy sessions were inadequate to address that history. CYFD also argues that Father was not engaged in substance abuse treatment or “relapse prevention” at the time that his parental rights were terminated. At trial, Steckbauer testified that she spoke with Father in early December 2013 about “having the therapy sessions set up” that were recommended by the psychological evaluation and that she discussed with Father “when [the sessions] would be beginning.” She told Father that he should address “his substance abuse history” in his therapy sessions as part of his treatment plan requirements. The evidence showed that Father‘s schedule of therapy sessions began on December 18, 2013 and that he completed the sessions on January 23, 2014. {41} CYFD developed its treatment plan to address Father‘s “DWI history [and] substance abuse history[,]” but it did not present any evidence that these causes and conditions persisted or were unlikely to change in the foreseeable future. Father‘s DWI arrest occurred in December 2012, which was prior to the time Child was taken into custody, and more than a year had elapsed between Father‘s arrest and the final day of the termination trial. Given that CYFD did not reevaluate or communicate with Father after early December 2013, Steckbauer‘s opinion about Father‘s progress focused on Father‘s past and whether, in her general experience as a social worker, “someone” could resolve those issues in six sessions of therapy. We are not persuaded that Steckbauer‘s testimony alone is the type of evidence that leaves the {42} We now turn to the evidence pertaining to Father‘s mental health and domestic violence history. Father contends that the court‘s finding that Father was unlikely to alleviate the causes and conditions of neglect was improperly based on stale and speculative evidence related to Father‘s “impulsivity.” In defending the court‘s finding on appeal, CYFD cites Steckbauer‘s testimony that Father‘s completion of six sessions of therapy was inadequate to address the “magnitude and severity” of the issues identified in Father‘s psychological evaluation, namely his problems with impulse control. CYFD additionally cites its “concerns” with Father‘s domestic violence history and that Father never completed a domestic violence assessment. {44} When asked whether Father complied with the treatment plan requirement for parenting classes, Steckbauer testified that, based on her knowledge of the documents she received from the Consulate, she believed Father addressed parenting education “to the best of his ability” because parenting classes were unavailable in Father‘s municipality. Nonetheless, Steckbauer testified that she did not agree with the {45} We agree with Father that the evidence was insufficient to support the district court‘s finding that Father had failed or was unlikely to alleviate the causes and conditions of Child‘s neglect in the foreseeable future. In its findings, the court specified that the psychological evaluation of Father “was not very revealing regarding his mental health” and “did not use any of the standard testing recognized in the United States.” The court also stated at the conclusion of trial that the evaluation “doesn‘t really tell us much, except that [Father] has some impulsivity problems, which is evident in what‘s happened here in his past.” The court further noted that Father participated in six individual therapy sessions recommended by the {46} CYFD did not present evidence that Father was unable to safely parent Child because his present condition was plagued by unresolved mental health problems or domestic violence issues. In State ex rel. Children, Youth & Families Dep‘t v. Athena H., 2006-NMCA-113, ¶ 12, 140 N.M. 390, 142 P.3d 978, this Court held that substantial evidence supported the district court‘s finding that the mother was unlikely to alleviate the causes and conditions of neglect due to her continued psychological instability and “the chronic abuse and trauma” that the children suffered while in the mother‘s care. In that case, the evidence in support of termination consisted of the testimony of the children‘s therapist and a child psychologist appointed by the court as an expert in the case. Id. ¶¶ 10, 12. The evidence also demonstrated that the mother had complied with the treatment plan to the best of her ability but that she had discontinued “the treatment two years prior to the termination hearing because she . . . did not believe that she needed continued care.” Id. ¶ 10. Unlike in Athena H., CYFD did not present evidence that Father suffered from the current or long-term {47} There is also no evidence that CYFD made any effort to make proper referrals, obtain information about Father‘s condition, or reevaluate Father after it received his psychological evaluation or the letter regarding Father‘s completion of therapy. CYFD did not present any opinion, other than Steckbauer‘s testimony, regarding the credibility of Father‘s psychological evaluation, comparisons to evaluations performed in the United States, the adequacy of Father‘s therapy sessions, or the conclusions that could be drawn about Father from his participation in the evaluation or the sessions. Additionally, there was no evidence that any impulse control or domestic violence issues were connected to the causes and conditions that brought Child into CYFD‘s custody. In our review of the record, we did not identify any facts that would explain or clarify the details of Steckbauer‘s reference to Father‘s domestic violence history, and CYFD did not introduce any evidence at trial in this regard. We therefore cannot conclude that CYFD met its burden of proof and that there was substantial evidence to justify termination on those grounds. See, e.g., State ex rel. Children, Youth & Families Dep‘t v. Stella P., 1999-NMCA-100, ¶ 35, 127 N.M. 699, 986 P.2d 495 (stating that in a case of a parent whose mental illness constituted the basis for CYFD‘s proposed termination, CYFD must present “sufficient testimony to allow the court to make the statutorily required findings” under the ANA). {48} Finally, we address the evidence pertaining to the home study requested by CYFD and conducted by the Consulate as part of Father‘s treatment plan. Given that Father pleaded no contest to CYFD‘s neglect allegations that he had “failed to provide for [Child‘s] basic necessities[,]” Father‘s ability to obtain safe and stable housing was obviously fundamental to Father‘s progress toward alleviating the causes and conditions of neglect. See In re Grace H., 2014-NMSC-034, ¶ 11 (stating that the treatment plan required by the ANA sets forth services “the parents must complete in order to address the causes and conditions which led to removal of the child from the home“). Accordingly, Father‘s treatment plan required that he “obtain and maintain safe and stable housing[,]” and CYFD was required to “monitor [Father‘s] current living arrangement.” Steckbauer also testified that she instructed Father to have a home study completed as part of the treatment plan. {49} The home study was conducted on November 5, 2013 and sent by email to Steckbauer by Consulate staff. The study indicated that Father had obtained {50} Once more, based on the lack of evidence before it, the district court improperly shifted CYFD‘s statutory burden of proof required in a termination case {51} Notably, in announcing its findings at the conclusion of trial, the court explained that it believed that Father had made efforts to alleviate the causes and conditions of Child‘s neglect, “credit[ed] him with making efforts,” and stated that it “underst[ood] it‘s difficult in Mexico.” While we recognize that “[e]ven with a parent‘s reasonable efforts, {52} In holding that CYFD failed to meet its burden, we do not overlook the evidence pertaining to Father‘s efforts to provide support for and communicate with Child. This evidence may indicate abandonment of Child; however, abandonment under {53} Father next argues that clear and convincing evidence did not support the district court‘s determination that CYFD made reasonable efforts to assist Father in adjusting the causes and conditions that led to CYFD‘s custody of Child. Father contends CYFD failed to comply with its statutory obligation to pursue reunification {54} CYFD is required to “provide reasonable efforts to assist the parent to change the conditions that gave rise to the neglect and abuse, and the district court must consider the results of CYFD‘s efforts.” Athena H., 2006-NMCA-113, ¶ 9. “What constitutes reasonable efforts may vary with a number of factors, such as the level of cooperation demonstrated by the parent and the recalcitrance of the problems that render the parent unable to provide adequate parenting.” Patricia H., 2002-NMCA-061, ¶ 23. In determining whether CYFD‘s efforts were reasonable, we also consider the duration of reunification services provided to a parent by CYFD prior to resorting to termination. Id. ¶ 26. This Court has used the time period for reunification services set forth under federal law as a touchstone in our reasonable efforts analysis. Id. The {55} We cannot conclude that substantial evidence supported the district court‘s determination that CYFD made reasonable efforts when the evidence shows that CYFD‘s approach to the circumstances of Father‘s deportation foreclosed any possibility of achieving the goal of reunification. Although Father‘s treatment options during his incarceration in the United States were limited, Father engaged in an addiction treatment program, provided CYFD the names of relatives living in the United States so that placement options could be explored, and wrote to Child in April 2013. Steckbauer testified that she did use the assistance of an interpreter to meet with Father monthly during that time, and she also explored Father‘s relatives in the United States as possible placement options for Child. Yet CYFD‘s reunification efforts abruptly changed following Father‘s deportation and participation in treatment services in Mexico. {57} Despite CYFD‘s termination motion, Father demonstrated efforts to cooperate in treatment services intended to assist him in adjusting the conditions that rendered him unable to properly care for Child. By early December 2013, Father participated in the home study and psychological evaluation requested by CYFD. He also submitted a urinalysis and was slated to begin therapy sessions that were recommended by the psychological evaluation. During his telephone conversation with Steckbauer that month, Father inquired about Child‘s well-being and asked Steckbauer to send him a picture of Child; however, Steckbauer ceased her {58} We also agree with Father that CYFD fell short in its efforts, required under the ANA, to explore whether Father‘s relatives in Mexico would serve as suitable placement options for Child. In future cases, such inquiry will not be satisfied by a pro forma ratification of [CYFD‘s] assertions that such efforts have been made. . . . [I]n order to comply with the relatives search requirement of Laura J., 2013-NMCA-057, ¶ 61 (fifth and sixth alterations in original). The district court did not indicate such a conclusion in its findings of facts and conclusions of law, and we have difficulty concluding that Steckbauer‘s testimony constitutes {59} In response to Father‘s arguments on appeal, CYFD points to its efforts to request the psychological evaluation and home study, obtain documentation of their completion, and translate the results. CYFD also argues that it sought the Consulate‘s assistance in using the Consulate‘s mail system to facilitate Father‘s communication {60} The ANA requires the district court to “give primary consideration to the physical, mental and emotional welfare and needs of the child, including the likelihood of the child being adopted if parental rights are terminated.” {62} We are unconvinced that, as a general rule, native language disparities between a natural parent and his or her infant child are insurmountable obstacles to reunification. We have serious reservations about the district court‘s reliance on this theory in light of the lack of evidence before the court in this case. There was no evidence presented by CYFD that Child, who was approximately eighteen months old at the time of trial and in the early stages of developing his language capabilities, possessed an inability to learn Spanish that fatally inhibited his reunification with Father. Steckbauer testified that it would be “harmful” to return Child to Father because there had been no “direct communication” between Father and Child. {63} We do not suggest that Child‘s best interest is to be reunited with Father in Mexico. We recognize that Child now resides in a foster home with his half-brother and Child‘s permanency needs are significant. However, CYFD‘s failure to comply with its statutory mandate to make reasonable efforts and carry its evidentiary burden of proof in this case improperly deprived Father of his rights. This Court has specified that a judgment terminating parental rights must be entered “only with the utmost circumspection and caution” due to the fundamental nature of those rights. Stella P., 1999-NMCA-100, ¶ 33; see In re Termination of Parental Rights of Reuben & Elizabeth O., 1986-NMCA-031, ¶ 36, 104 N.M. 644, 725 P.2d 844 (“Termination of parental rights is not a matter to be lightly taken.“). Upon remand of this case, “[i]t is clear that the district court is in the best position to determine the present circumstances of [Child] and Father and to balance the emotional interests of [Child] and Father‘s rights.” Lance K., 2009-NMCA-054, ¶ 41. {64} New Mexico law does not relieve CYFD of its statutory mandate to make reasonable efforts to assist the parent in adjusting the causes and conditions of neglect simply because the parent has been deported to another country. The ANA affirmatively places the burden on CYFD, not the parent, to prove by clear and convincing evidence that the parent is unlikely to alleviate the causes and conditions of neglect in the foreseeable future. In this case, CYFD moved to terminate Father‘s parental rights one month after his deportation and discontinued its communication with Father shortly thereafter. Additionally, CYFD failed to reevaluate Father‘s progress in ameliorating the causes and conditions of neglect, despite Father‘s efforts to comply with significant aspects of his treatment plan. Accordingly, we conclude that CYFD‘s subsequent presentation of incomplete evidence was not substantial evidence of a clear and convincing nature that justified termination of Father‘s {65} IT IS SO ORDERED. JAMES J. WECHSLER, Judge WE CONCUR: MICHAEL D. BUSTAMANTE, Judge LINDA M. VANZI, JudgeBACKGROUND
EVIDENCE SUPPORTING THAT THE CAUSES AND CONDITIONS OF NEGLECT WERE UNLIKELY TO CHANGE IN THE FORESEEABLE FUTURE UNDER SECTION 32A-4-28(B)(2)
A. Finding of Neglect
B. Causes and Conditions of Neglect
1. Evidence Supporting Father‘s Alcohol and Substance Use
2. Evidence Supporting Father‘s Mental Health and Domestic Violence Issues
3. Evidence Supporting Father‘s Ability to Provide Safe and Stable Housing
C. Reasonable Efforts by CYFD
D. Best Interests of Child
CONCLUSION