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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico

Opinion Number:

Filed //19/2021 12:13 PM

Filing Date: JULY 19, 2021

No. A-1-CA-39128

STATE OF NEW MEXICO ex rel.

CHILDREN, YOUTH & FAMILIES
DEPARTMENT,

Petitioner-Appellee,

JOSIE G.,

Respondent-A ppellant,

and

JULIAN G.,

Interested Party,

IN THE MATTER OF ELIESE G.,

Child.

17
18

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
William E. Parnall, District Judge

19
20
21

Children, Youth & Families Department
Rebecca J. Liggett, Chief Children’s Court Attorney
Robert Retherford, Children’s Court Attorney

Santa Fe, NM

for Appellee

NO —

Law Offices of Nancy L. Simmons, P.C.
Nancy L. Simmons

Albuquerque, NM

EEO ON OE ENGAGE

for Appellant

Julie M. Saiz
Albuquerque, NM

Guardian Ad Litem

OPINION

| BOGARDUS, Judge.

a3} Josie G. (Mother) appeals the termination of her parental rights to her

daughter, Eliese G. (Child).! Mother advances three arguments: (1) the proceedings

constituted fundamental error that violated Mother’s statutory rights under the Abuse

and Neglect Act, (2) the proceedings violated Mother’s procedural due process

rights, and (3) insufficient evidence supported termination of Mother’s parental

rights. Unpersuaded, we affirm.

BACKGROUND?

{2} Child was brought into Children, Youth and Families Department (CYFD)

custody in January 2016, less than a month before her third birthday. In March 2016,

Mother pleaded no contest to neglecting Child due to her domestic violence,

substance abuse, and mental health issues.

'This case originally concerned both Child and her sibling; however, Child’s
sibling aged out of foster care before termination proceedings. Father also had his

parental rights terminated in the same proceedings, and has not appealed that
decision. Therefore, our opinion addresses only the facts and law relevant to Mother.
°The facts contained in this section explain the context of the termination of

Mother’s parental rights. All facts relied on in our affirmance of the termination of
Mother’s parental rights are discussed in the subsection regarding sufficiency of the
evidence below. See State ex. rel. Children, Youth & Families Dep’t v. Brandy S.,

2007-NMCA-135, §§f 31-32, 142 N.M. 705, 168 P.3d 1129 (indicating that,
generally, a district court must rely on evidence introduced at the termination of
parental rights (TPR) hearing to make relevant findings of fact in relation to the

termination of parental rights).

33 Child was initially diagnosed with disinhibited social engagement disorder,

manifested as hypervigilance, expressions of bad memories, angry outbursts, and

refusal to cooperate with adult directives. Child’s treating psychologist described

Child as very angry and traumatized, hypervigilant, demanding, and exhibiting

behaviors consistent with abuse. Child’s treating psychologist testified that children

as young as two years old can recall traumatic memories, and recommended that

visits with Mother should begin as family therapy, maintained on the pace

recommended by Child’s therapist. In 2017, Child was additionally diagnosed with

unspecified disruptive behavior disorder and later with oppositional defiant disorder.

{4 Before visitation began, Child talked about her fear of Mother and exhibited

behavioral issues, including hurting herself and others. Child’s therapist and

treatment team believed that Child’s acts of self-harm needed to be reduced before

starting visitation with Mother because of the risk that contact with Mother would

increase those harmful behaviors.

November 2016 Through February 2017 Visitation

{5} When Child’s behaviors had improved, the first round of visits began in

November 2016 with Child’s therapist facilitating family therapy sessions with

Mother and Child: Mother behaved appropriately during the first visit and the visit

went well. Mother had additional visits in January and February 2017 and Mother’s

behavior was appropriate during these visits.

Cee oe = ea

{6} After these visits with Mother, however, Child’s harmful behavioral issues

increased. A few weeks after the November visit, Child attacked her therapist by

throwing things and hitting and scratching her. Child’s negative behavior continued

following the January and February visits. Child was aggressive, impulsive,

hyperactive, lashed out unexpectedly, and engaged in behaviors that required

therapeutic holds. Child’s behavior included throwing herself to the ground,

scratching at her face, punching herself in the face, pulling out her hair, and kicking

the ground with such force that Child’s therapist worried Child would break her feet.

Child’s treatment team decided to suspend visitation with Mother in order to

Stabilize Child, and within a few months after visits with Mother ended, Child’s

behavior improved; Child continued to exhibit some behavioral issues, such as

screaming and crying on the floor, but Child did not attempt to harm herself and did

not require therapeutic holds.

September Through November 2017 Visitation

a The second round of visitation consisted of three visits beginning in

September 2017 and continuing through November 2017. Child’s therapist

conferred with Mother’s therapist regarding family therapy sessions, which occurred

monthly during this time. In September, when Child’s therapist was attempting to

prepare Child for the upcoming visits with Mother, Child stated that Mother was

so, Mother’s behavior was appropriate during these visits, and Mother effectively

incorporated feedback from Child’s therapist about how to engage with Child.

3; After these visits with Mother, Child yet again became more irritable, angry

and once again began hurting herself by pulling out her hair and scratching her face.

During the November visit, Child was irritable, agitated, and stated that she did not

want to see Mother, but Child’s therapist proceeded with the family therapy session.

During the November session, Child ran from the therapy room where she was

visiting with Mother. Visitation was then suspended for two reasons: at the

recommendation of Child’s treatment team, and due to Child’s disclosure of sexual

abuse by Mother.

193 Following the suspension of visitation, Child began to stabilize after a few

months. However, in early 2018 Child began describing “Mr. Sink,” a tall dark

person with a black hat and red eyes, who, according to Child, did not like Child’s

therapist and would stand behind Child’s therapist during discussions of Mother.

During therapy, when first discussing Child’s disclosure of sexual abuse by Mother,

Child said “no no no no no” under her breath and deepened her voice, addressing the

therapist as Mr. Sink. After this event, Child took longer to stabilize than previously,

and Child refused to enter her therapy room until her therapist showed her that there

was no one else in the room. Child’s self-harming behavior continued, but lessened

over time. By the end of 2018, Child was not hurting herself and no longer discussed

Mr. Sink.

‘February 2019 Attempted Visitation
tivir

410} The third and final attempt at visitation occurred in February 2019. At that

time, Child was stable, was not hurting herself, and would enter her therapy room

without difficulty. A plan was developed to restart visits with Mother, beginning

sessions, and then family therapy with Mother. During the February ZO19 treatment

team meeting, Child spoke with Mother by phone, and Child’s therapist told Child

during a therapy session about the plan to restart visits with Mother.

© The followi k. Child refused “tt for | kly tl
~~ {3} session and stated that her stomach was hurting; Child asked to go to the bathroom, |

where she was found masturbating. Child’s negative behaviors increased in the

weeks that followed—she was irritable, aggressive, discussed two voices in her head

Child’s increased behavioral issues would require residential treatment.

42} Although it was uncontested that Mother completed her treatment plan, CYFD

the district court terminated Mother’s parental rights.

DISCUSSION

I. Alleged Statutory Violations Do Not Constitute Fundamental Error

4133, Mother alleges that the proceedings violated her rights under the Abuse and

Neglect Act because: (1) CYFD “permanently suspended” her visits with Child in

November 2017, and “unilaterally” decided to keep Child in custody without a plan

to return home; and (2) the district court failed to dismiss the case, change the

permanency plan, or return Child to Mother by July 31, 2017, which Mother alleges

violated the six-month timeline outlined in NMSA 1978, Section 32A-4-25.1(D)

(2009, amended 2016).

4143. As Mother concedes, she failed to preserve her arguments regarding alleged

violations of her statutory rights, and we therefore review for fundamental error.

“(TJermination of parental rights cases can be candidates for fundamental error

analysis[,]” and “we will address unpreserved errors that go to the foundation of the

case, and which deprive the defendant of rights essential to his [or her] defense.

Although fundamental error does not generally apply in civil cases, we will apply

the doctrine in exceptional cases.” Sate ex. rel. Children, Youth & Families Dep't

v. Paul P., Jr., 1999-NMCA-077, § 14, 127 N.M. 492, 983 P.2d 1011 (internal

quotation marks and citation omitted).

eS)

TO dt EEG OG te = ce a

A. The Record Does Not Support Mother’s Characterization of the Facts
Regarding the November 2017 Suspension of Visits

415} To the extent that Mother claims that CYFD “permanently suspended” her

visits with Child in November 2017 and “unilaterally” kept child in custody, without

a plan to return home, we note that Mother fails to direct us to evidence in the record

to support these allegations, and where a party fails to cite any portion of the record

to support its factual allegations, this Court need not consider its argument on appeal.

See Santa Fe i:xpl. Co. v. Oil Conservation Comm’n, 1992-NMSC-044, ¥ 11, 114

N.M. 103, 835 P.2d 819; see also Rule 12-318(A)(3) NMRA (requiring briefs in

chief to contain “a summary of proceedings, briefly describing the nature of the case,

the course of proceedings, and the disposition in the court below, and including a

summary of the facts relevant to the issues presented for review[, which] summary

shall contain citations to the record proper, transcript of proceedings, or exhibits

supporting each factual representation” (emphases added)).

{16 Nonetheless, our own review of the record demonstrates that, contrary to

Mother's claims, the November 2017 suspension of visits was neither unilateral nor

permanent, and Child’s permanency plan of reunification remained intact.

417; The decision to suspend visits in November 2017 was not a unilateral one by

“1 2

N
—

CYFD. In fact, the suspension was therapeutically recommended. Child’s therapist

testified that Mother’s visits were suspended at that time because of Child’s recent

negative behavior following visits with Mother. Child’s therapist further testified

that the therapeutic recommendation against continued visitation with Mother would

still have been made regardless of the sexual abuse allegations, and was due to

concerm that Child’s behavioral issues might require a higher level of care than

treatment foster care. Because the November 2017 suspension of visits was

therapeutically recommended, the suspension was not a unilateral decision by CYFD

as Mother alleges.

4183 Additionally, although Mother alleges the November 2017 suspension of

visits was permanent, the evidence suggests that it was not. This is most readily

apparent by the later attempt in February 2019 to restart visitation between Child

and Mother, after Child’s behavioral issues stabilized.

4193 Finally, the November 2017 suspension of visits did not keep Child in CYFD

custody without a plan to return home, as Mother alleges, because although visitation

was temporarily suspended, efforts continued to stabilize Child and prepare her for

visits with Mother. From the time visits were suspended in November 2017 to

February 2019, when the next attempt was made to restart visitation, Child’s

therapist continued weekly and monthly efforts to engage Child in discussions of

Mother in therapy to prepare Child for future visits with Mother.

20; After diligent review, this Court concludes that the record does not support

Mother’s characterization of the facts relating to the November 2017 suspension

visitation and this Court does not consider Mother’s arguments on this issue further.

B. The Alleged Statutory Timeline Violation Does Not Constitute
Fundamental Error

13 Mother argues that the six-month timeline in Section 32A-4-25.1(D) required

the district court to dismiss the case, change the permanency plan, or complete a plan

to transition home by July 31, 2017; therefore, the district court’s failure to take one

of these actions until December 19, 2018, when the district court changed the

permanency plan to adoption, violated Mother’s statutory rights and constitutes

fundamental error. CYFD responds that this case was exempted from the six-month

timeline in Section 32A-4-25.1(D) because NMSA 1978, Section 32A-4-29(G)(5)

(2009) allows for extended time in CYFD custody when a child is incapable of

functioning in a family setting. Mother contends, for various reasons, that the

statutory exception in Section 32A-4-29(G)\(5) does not apply. However, even

assuming that the statutory exception in Section 32A-4-29(G)(5) does not apply to

Child, under the facts of this case, the district court’s failure to dismiss the case,

change the permanency plan, or complete a transition home until December [9,

2018, does not rise to the level of fundamental error. We explain.

23 During the nearly eighteen-month period at issue, Mother’s compliance with

N
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her treatment plan improved. The record demonstrates that as of August 2017,

Mother was not fully in compliance with her treatment plan because she repeatedly

tested positive for marijuana in her drug screenings

use as recently as July 2017. The district court found that by December 2018 Mother

had “worked extensively” on her treatment goals, and noted no failures to comply

with the case plan, such as the failed drug screenings noted in previous findings

Although CYFD proposed changing Child’s permanency plan to adoption in August

2017, the district court maintained the plan of reunification and ordered continued

visits. Additionally, as described above, visitation was attempted during this

eighteen-month period; although visitation was suspended in November 2017 for

therapeutic reasons, Mother demonstrated appropriate behavior with Child during

the visits in the fall of 2017 and effectively incorporated feedback from Child’s

therapist about how to best engage with Child. During the TPR hearing, CYFD

stipulated to Mother’s completion of her treatment plan, and CYFD presented

evidence confirming Mother’s appropriate behaviors in her visits during the fall of

2017. In essence, this eighteen-month period in CYFD custody created additional

opportunities for Mother to fully comply with her treatment plan and for additional

attempts to reestablish visitation with Child. Therefore, even if the district court

failed to comply with the six-month timeline set out in Section 32A-4-25.1(D), the

additional time before termination proceedings benefitted Mother’s defense to

termination. We conclude that because the alleged error does not “go to the

foundation of the case, [or] deprive [Mother] of rights essential to [her] defense[, |”

it-does_not-_constitute fundamental error. See Paul P.,_Jr., 1999-NMCA-077, 4 14

EEL DOH GE SOG. =k? ENV bh >

(internal quotation marks and citation omitted).

II. Mother’s Procedural Due Process Rights Were Not Violated

23; Mother contends that the above-described proceedings, which allegedly

violated the six-month timeline required by Section 32A-4-25.1(D), also violated

her right to procedural due process.

4243 “Whether an individual was afforded due process is a question of law that we

review de novo.” State ex rel. Children, Youth & Families Dep’t v. Rosalia M., 2017-

NMCA-085, { 8, 406 P.3d 972 (alteration, internal quotation marks, and citation

omitted). “To evaluate the due process owed to a parent in termination proceedings,

we use the balancing test in Mathews v. Eldridge, 424 U.S. 319... (1976).” Rosalia

M., 2017-NMCA-085, ¢ 9. Three factors are weighed under that test: “the parent’s

interest; the risk to the parent of an erroneous deprivation through the procedures

used in light of the probable value, if any, of additional or substitute procedural

safeguards; and the government’s interest.” /d. A parent’s fundamental interest in

the parent-child relationship and the state’s interest in protecting the welfare of the

children balance equally; therefore, the second Mathews’ factor is dispositive. State

I! 4 =

ex rel. Children, Youth & Families Dep't v. Mafin M., 2003-NMSC-015, § 20, 133

N.M. 827, 70 P.3d 1266. “Our conclusion does not depend on a showing that [the

mJother would have been successful if she had been provided with the additional

procedures she alleges should hav

show that there is a reasonable likelihood that the outcome might have been

different.” State ex rel. Children, Youth & Families Dep’t v. Browind C., 2007-

NMCA-023, 4.31, 141 N.M. 166, 152 P.3d 153 (emphasis, internal quotation marks

and citation omitted).

5} In Paul P., J/r., this Court reversed the district court’s dismissal of the father

from adoption proceedings. 1999-NMCA-077, ¥ 1. This Court held that the father’s

due process rights were violated when the district court erroneously interpreted the

criminal sexual penetration statute and determined that the father’s consent was not

required for the adoption of the child because, based on the age of the mother, the

child was conceived as the result of conduct constituting criminal sexual penetration.

Id. 4 1, 4-5. Because the child in Paul P., Jr. “was not actually conceived as a result

of rape as argued” by CYFD, the Children’s Code required that the father “be

allowed to defend against termination of parental rights in a full evidentiary hearing

following procedures, including the filing of a petition[.]” /d. J 13.

726} Mother argues that she was denied due process because, like the parent in Paul

P., Jr., she was “excluded” from the proceedings when CYFD acted “unilaterally”

and without judicial oversight. To the extent that Mother bases this argument on her

characterization of the facts underlying the November 2017 suspension of visits, we

do not consider the argument further for the reasons we previously discussed. To the

during the eighteen-month period described above, we remain unpersuaded.

a7 Although Mother alleges that she was “excluded from the proceedings just as

surely as the respondent father was excluded in Paul P., Jr.,” we note that Mother

does not direct this Court to any proceedings where she was not present,

unrepresented by counsel, denied the opportunity to cross-examine CYFD’s

witnesses or present evidence of her own, or denied an impartial decision-maker.

Significantly, Mother does not allege that there is a reasonable likelihood that the

outcome of the termination proceedings might have been different had CYFD

complied with the statutory deadlines it allegedly violated. See Browind C., 2007-

NMCA-023, § 31 (requiring a respondent parent to “show that there is a reasonable

likelihood that the outcome might have been different” had additional procedural

safeguards been provided (emphasis, internal quotation marks, and citation

omitted)).

228}, Because our own review of the record demonstrates that the eighteen-month

period of time that allegedly violated statutory deadlines benefitted Mother’s defense

in certain ways—creating additional time for her to fully comply with her treatment

plan and allowing time for further attempts to reestablish visitation with Child—we

will not guess at Mother’s undeveloped arguments or the probable value of a shorter

timeline for attempted reunification. See Headley v. Morgan Mgmt. Corp., 2005-

NMCA-045, 4-15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear

ENGAGE > HI v¥ ESE ¥ VY &.

arguments, or guess at what [a party’s] arguments might be.”’).

9} Because Mother fails to fully develop her argument regarding the alleged due

process violations, and because our own review of the record reveals no reasonable

likelihood that a shorter timeline would result in a different outcome, we conclude

that Mother’s procedural due process rights were not violated.

UI. Substantial Evidence Supports Termination of Parental Rights

430} Mother contends that CYFD failed to present sufficient evidence that (1) the

conditions and causes of the neglect and abuse were unlikely to change in the

foreseeable future, (2) CYFD made reasonable efforts to assist Mother in adjusting

the conditions that rendered her unable to properly care for Child, (3) termination of

parental rights was in Child’s best interests, and (4) Child was adoptable. We address

each in turn.

{31} We consider the district court’s findings in relation to the “substantial

evidence” standard. See, e.g., State ex rel. Children, Youth & Families Dep't v.

Patricia H., 2002-NMCA-061, 9 22, 31, 132 N.M. 299, 47 P.3d 859 (reviewing the

district court’s “reasonable efforts” finding for substantial evidence). “Substantial

evidence 1s relevant evidence that a reasonable mind would accept as adequate to

support a conclusion.” State ex rel. Children, Youth & Families Dep’t v. Keon H.,

2018-NMSC-033, 4 36, 421 P.3d 814 (internal quotation marks and citation

ce a . = Ss = ae TES OGL.

omitted). In determining whether the st

reweigh all the evidence presented to the district court or “substitute our judgment

for that of the [district] court as to any factual matter”—but rather defer to the district

court’s conclusions. State ex rel. Children, Youth & Families Dep't v. Vanessa C.

2000-NMCA-025, 4 24, 128 N.M. 701, 997 P.2d 833. Overall, “we view the

evidence in the light most favorable to support the [district] court’s findings and

conclusions of law.” State ex rel. Children, Youth & Families Dep’t v. David F., Sr.,

1996-NMCA-018, ¢ 34, 121 N.M. 341, 911 P.2d 235.

{32} Because the standard of proof applicable to the termination of parental rights

determination is clear and convincing evidence, the district court’s findings are valid

only if they meet that standard. See Keon H., 2018-NMSC-033, § 37 (recognizing

that a parent cannot be deprived of parental rights without due process of law and

that “[d]ue process requires that findings necessary to terminate parental rights be

supported by clear and convincing evidence”). “Clear and convincing evidence

means evidence that instantly tilts the scales in the affirmative when weighed against

the evidence in opposition and the fact[-]finder’s mind is left with an abiding

conviction that the evidence is true.” /d. (internal quotation marks and citation

omitted).

A. Substantial Evidence Supports the District Court’s Finding That the
Causes and Conditions of Neglect Were Unlikely to Change in the
| ______ Foreseeable Future

{33} In order to terminate parental rights with respect to a neglected or abused

child, the district court must find that “the conditions and causes of the neglect and

abuse are unlikely to change in the foreseeable future[.]’”” NMSA 1978, Section 32A-

4-28(B)(2) (2005). Mother argues that: (1) CYFD failed to demonstrate that Child’s

“discomfort [with Mother] actually existed” because Child’s behavioral issues

occurred after visits with Mother; and (2) even if such behavioral issues were related

to contact with Mother, the evidence presented was not current and, therefore, did

not support a finding that the condition was unlikely to change in the foreseeable

future.

13
14

1. Child Was Traumatized and Her State of Mind Was Not Conducive to
Reunification

34 To the extent that Mother argues that CYFD failed to demonstrate that Child’s

“discomfort [with Mother] actually existed” because Child’s behavioral issues

occurred after visits with Mother, we presume such an argument to challenge the

district court’s finding that Child was traumatized and that her state of mind was not

—
\o

conducive to reunification.

35} Child’s treating therapist and her treatment coordinator each testified about

their personal observations of significant increases in Child’s behavioral issues and

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1} hyperactivity, aggressive behaviors, unpredictable mood swings, falling to the
2 ground screaming, kicking the ground hard enough to risk injury, scratching and

punching her face, punching her legs, pulling at her hair, pinching and biting her

arms, and sexualized behaviors. Additionally, Child’s descriptions of “Mr. Sink”

arose during Child’s discussion of sexual abuse by Mother, and in general, Child’s

references to hallucinations of voices and shadows occurred in the weeks and months

following contact with Mother.

4363 Although Child’s behavioral issues arose after contact with Mother and not

during contact with Mother, “[o]ur standard of review requires us to determine

whether the [district] court’s conclusion, when viewed in the light most favorable to

the decision below, was supported by substantial evidence, not whether the [district]

court could have reached a different conclusion.” Patricia H., 2002-NMCA-061,

431. Even though Child’s behavioral issues did not occur during her family therapy

sessions with Mother or during her phone contact with Mother, from the evidence

presented, the district court could reasonably conclude, by the standard of clear and

convincing evidence, that Child was severely traumatized and her state of mind was

not conducive to reunification with Mother.

NO —

2. The Causes and Conditions of Neglect That Brought Child Into Custody
Were Not Alleviated and Were Unlikely to Change in the Foreseeable

Future

137}, Mother challenges the district court’s finding that the causes and conditions

of neglect that brought Child into custody were not alleviated and were unlikely to

change in the foreseeable future. Specifically, Mother contends that CYFD relied on

an impermissible presumption that Child’s issues continued to the time of the

termination proceedings and, therefore, absent current evidence, CYFD failed to

demonstrate that this condition was unlikely to change in the foreseeable future.

(383 “We have interpreted the term ‘foreseeable future’ to refer to corrective

change within a reasonably definite time or within the near future. We have also

noted that in balancing the interests of the parents and children, the [district] court is

not required to place the children indefinitely in a legal holding pattern.” /d. ¥ 34

(internal quotation marks and citations omitted).

439} In State ex. rel. Children, Youth & Families Dep't v. Alfonso M.-E., this Court

rejected CYFD’s reliance “on vague references to [the flather’s past to draw

speculative inferences about the current and future existence of the causes and

conditions of neglect.” 2016-NMCA-021, 4 40, 366 P.3d 282. During the

termination proceedings in A/fonso M.-E., CYFD presented evidence of the father’s

history of substance abuse,” but “no evidence” regarding whether he continued to

abuse alcohol. /d. This Court reasoned that “CYFD is not entitled to transfer its

evidentiary burden [to the father,] . . . particularly when [the flather made efforts to

continuing existence of the causes and conditions of neglect.” /d. 37.

440} To the extent that Mother claims that, like A/fonso M.-E., this case involves

mere speculation of Mother’s inability to safely parent Child, we disagree. In A/fonso

M.-E., CYFD presented no evidence of the father’s continued issues with alcohol

abuse, only evidence of a past substance abuse problem. /d. In contrast, the case at

hand involved years of evidence of Child’s continued pattern of severe behavioral

issues following contact with Mother. As recently as February 2019, Child

demonstrated severe behavioral issues following phone contact with Mother.

Because CYFD presented evidence of Child’s continued behavioral issues following

contact with Mother as recently as five months before termination proceedings,

which began in July 2019, we cannot say that the district court impermissibly relied

on speculation for its finding that the conditions of neglect continued to the time of

termination. Stated differently, because Mother could not safely have contact with

Child, it was reasonable for the district court to conclude that Mother could not safely

parent Child.

413 In State ex. rel. Children, Youth & Families Dep’t v. Hector C., this Court

held that there was not clear and convincing evidence to support the finding that the

causes and conditions of neglect were unlikely to change in the foreseeable future

where the “[fJather’s incarceration played an overwhelming and singular role in the

termination proceedin

CEE P

participated willingly, voluntarily, and enthusiastically in all the programs that

CYFD recommended.” 2008-NMCA-079, {ff 15, 17, 21, 144 N.M. 222, 185 P.3d

1072. Because the evidence relied on for termination was based overwhelmingly on

conditions that were demonstrably no longer in effect—the father’s incarceration—

the evidence was stale for purposes of determining “whether those conditions

persisted at the time of the hearing or would persist into the future.” /d. ¢ 16 (internal

quotation marks and citation omitted).

{423 To the extent that Mother relies on Hector C. for her contention that CYFD

presented only an impermissible “inference of future harm[,]’ we disagree. The

evidence relied upon in Hector C. was stale because it was based on conditions no

longer in effect, namely, the father’s incarceration, rather than the more recent

evidence of the father’s compliance with CYFD recommended programs after his

release from prison. /d. J§ 15, 17, 21. Here, the evidence demonstrated that Child’s

inability to safely adjust to contact with Mother was a consistent pattern across all

three attempts to establish visitation, and the pattern continued despite Mother’s

ongoing compliance with her treatment plan and appropriate behavior during visits.

Unlike the significant change in the father’s circumstances in Hector C., Mother

does not direct this Court to any change in circumstances that would affect the

ongoing pattern of Child’s behavioral issues following contact with Mother, and our

own review of the record reveals none.

{433 Because CYFD presented evidence of the pattern of Child’s inability to safely

manage contact with Mother spanning years and continuing as recently as five

months prior to termination, and because we see no change in circumstances that

would indicate this pattern of behavioral issues was unlikely to continue into the

foreseeable future, we conclude that clear and convincing evidence supported the

district court’s finding that the causes and conditions of neglect were not alleviated

and were unlikely to change in the foreseeable future.

10
11

B. Substantial Evidence Supports the District Court’s Finding That CYFD
Made Reasonable Efforts

444 Mother challenges the district court’s finding that CYFD made reasonable

efforts and contends that her visits with Child were terminated “in an almost

whimsical process, without consultation, much less collaboration, with Mother or

Mother’s therapist.

45} In order to terminate parental rights with respect to a neglected or abused

child, the district court must find that “the conditions and causes of the neglect and

—
ie,2)

abuse are unlikely to change in the foreseeable future despite reasonable efforts by

the department . . . to assist the parent in adjusting the conditions that render the

parent unable to properly care for the child.” Section 32A-4-28(B)(2) (emphases

NO
—

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.” Keon _H.

doh wate = ae poe Sa ERC Livy

2018-NMSC-033, § 41 (internal quotation marks and citation omitted). CYFD’s

efforts need only be reasonable, not perfect. See id. ¢ 43. Moreover, CYFD need not

do “everything possible” to assist_a parent; instead, the focus is on whether it has

done the minimum required by law. See Patricia H., 2002-NMCA-061, § 28.

{46} Here, CYFD attempted to reestablish the relationship between Child and

Mother three times between 2016 and 2019, each time suspending visitation plans

based on Child’s severe behavioral issues following contact with Mother and out of

concern that Child might require residential treatment for those behavioral issues. In

between these three rounds of visitation, CYFD continued to provide services to

stabilize Child and prepare her for future contact with Mother. These services

included weekly therapy sessions, mood-stabilizing medication, monthly psychiatric

appointments, treatment foster care, and coordination of Child’s care through

monthly treatment team meetings. The evidence demonstrates serious concerns by

Child’s treatment team about the damaging effect of repeated attempts at contact

between Child and Mother, notwithstanding Mother’s appropriate behaviors during

visits.

(47 To the extent Mother argues that it was “whimsical” for CYFD to suspend

visits without consultation or collaboration with Mother or Mother’s therapist, we

remain unpersuaded. The issues preventing visitation were Child’s self-harming

follow the recommendations of Child’s treating therapist regarding the suspension

of visits and appropriate treatment to stabilize Child. By focusing on Child’s safety

and therapeutic needs, CYFD’s efforts were directed at the appropriate cause of the

issue—Child’s mental health. See State ex. rel. Children, Youth & Families Dep't v.

Athena H., 2006-NMCA-113, ¥ 13, 140 N.M. 390, 142 P.3d 978 (concluding that

substantial evidence supported a finding that CYFD made reasonable efforts when

visits with the mother were suspended at the recommendation of the children’s

therapists who believed that “visits had a detrimental effect on the children, who

became traumatized, regressed in behavior, and were not able to progress in

therapy”). NMSA 1978, Section 32A-4-22(C) (2009, amended 2016), states that

“(rjeasonable efforts shall be made to preserve and reunify the family, with the

paramount concern being the child’s health and safety.” (Emphases added.) Thus,

CYFD’s focus on Child’s therapeutic needs and the recommendations from Child’s

therapist was both reasonable under the circumstances and in accordance with

CYFD’s statutory duty to prioritize Child’s health and safety when making efforts

towards reunification.

(48; To the extent that Mother challenges the reasonableness of CYFD’s efforts

because visitation was planned by Child’s therapist, we remain unpersuaded. Child’s

psychologist, an expert witness, recommended that the pace of family therapy

between Child and Mother be determined by Child’s therapist. Additionally, Child’s

> S

psychologist testified that although reunification with Mother would not be possible

without family therapy, he would not recommend family therapy with Mother if it

was going to stress Child to the degree that Child required residential treatment

Child’s psychiatrist testified that, in his opinion, Child’s pattern of regressive,

oppositional, physically aggressive, agitated behavior following contact with

Mother took away any possibility for family therapy to be beneficial, noting that the

team was “barely” keeping Child in her treatment foster home and “any escalation”

might have led to hospitalization of Child. Child’s psychiatrist also testified that he

believed that Child’s therapist’s approach to family therapy with Mother was

reasonable.

49} We conclude that, under these circumstances, CYFD presented sufficient

evidence for the district court to find, by a clear and convincing standard, that CYFD

made reasonable efforts to reunify Child and Mother by attempting family therapy

with Mother and providing services to address Child’s mental health, behavioral

issues, and ability to safely maintain contact with Mother.

18
19

C. Substantial Evidence Supports the District Court’s Finding That
Termination of Parental Rights Was in Child’s Best Interests

NO
—_—

50} Mother argues that CYFD failed to present sufficient evidence demonstrating

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“no evidence that Child [would] be better off in treatment foster care[,]” and

513 CYFD must show that termination of parental rights is in the best interests of

the child, “[h]owever, the termination of parental rights cannot be based on a best

interests determination alone. The fact that.a child might be better off in a different

environment is not a basis for termination of parental rights[.]” Patricia H., 2002-

NMCA-061, § 21 (internal quotation marks and citations omitted).

4523 CYFD presented evidence that Child suffered from significant mental health

and behavioral issues following contact with Mother, despite weekly therapy, mood-

stabilizing medications, and treatment foster care. When visits with Mother were

suspended, Child’s behaviors stabilized. Although Child was required to change

treatment foster homes in September 2019 Child’s behavior did not require

immediate removal, and her behavior in her newer foster home improved; Child was

successfully able to form attachments with her new foster parents and the other

children in the home.

{53} “[WJe view the evidence in the light most favorable to support the [district]

court’s findings and conclusions of law[,]” see David I, Sr., 1996-NMCA-018,

434, and we will not substitute our judgment for that of the district court, instead

24.

Despite evidence that Child continued to experience some behavioral issues while

in treatment foster care, even during times when Child was not in contact with

Mother, CYFD presented sufficient evidence

conclude, by a clear and convincing standard, that termination of parental rights was

in Child’s best interests.

D.__ Mother’s Undeveloped Argument Regarding Adoptability

(543 Mother argues—in a single sentence and without citation to the record or

supporting authority—‘that CYFD has failed to prove that Child is adoptable.”

55} “We will not review unclear arguments, or guess at what a party’s arguments

might be.” Elane Photography, LLC vy. Willock, 2013-NMSC-040, 4 70, 309 P.3d 53

(alteration, internal quotation marks, and citation omitted). “To rule on an

inadequately briefed issue, this Court would have to develop the arguments itself,

effectively performing the parties’ work for them.” /d. Additionally, “[w]e will not

search the record for facts, arguments, and rulings 1n order to support generalized

arguments.” Muse v. Muse, 2009-NMCA-003, § 72, 145 N.M. 451, 200 P.3d 104.

Given Mother’s lack of a developed argument regarding adoptability, we need not

consider it further.

CONCLUSION

{56} For the above reasons, we affirm the district court’s termination of Mother’s

—
\O

parental rights.

—

673 IT ISSO ORDERED.

E/RDUS, Judge

4| WE CONCUR:

July 19, 2021- CYFD v. Josie G., No. A-1-CA-39128

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