State ex rel. CYFD v. Heather S.

Office of the
New Mexico
Director Compilation
Commission
2025.02.05
'00'07- 09:11:30
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2025-NMSC-002

Filing Date: October 17, 2024

No. S-1-SC-38922

STATE OF NEW MEXICO ex rel.
CHILDREN, YOUTH & FAMILIES
DEPARTMENT,

Petitioner-Respondent,

v.

HEATHER S.,

Respondent-Petitioner,

and

JIMMY A. and WESLEY S.,

Respondents,

IN THE MATTER OF NOAH S.,

Child.

ORIGINAL PROCEEDING ON CERTIORARI
William E. Parnall, District Judge

Children, Youth & Families Department
Mary A. McQueeney, Chief Children’s Court Attorney
Kelly P. O’Neill, Children’s Court Attorney
Robert Retherford, Children’s Court Attorney
Santa Fe, NM

for Petitioner-Respondent

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

for Respondent-Petitioner
Nanette E. Erdman
Rio Rancho, NM

for Guardian ad Litem

OPINION

VARGAS, Justice.

{1} This case requires that we consider the evidence necessary to support a finding
of neglect under NMSA 1978, Section 32A-4-2(G)(2) (2018), whether the district court
may aggregate that evidence to determine whether the Children, Youth and Families
Department (CYFD) satisfied its burden to prove neglect by clear and convincing
evidence, and whether CYFD met its burden here.

{2} For the reasons that follow, we conclude that the district court may aggregate
evidence to determine whether CYFD has proven by clear and convincing evidence that
a child is neglected. Under this standard, we hold that substantial evidence of a clear
and convincing nature did not support the district court’s adjudication of Child as a
neglected child as a matter of law. In re Termination of Parental Rights of Eventyr J.,
1995-NMCA-087, ¶ 14, 120 N.M. 463, 902 P.2d 1066 (considering the cumulative effect
of evidence to support a finding of abuse and neglect). Accordingly, we reverse both the
Court of Appeals and the district court and remand to the district court for further
proceedings consistent with this opinion.

I. BACKGROUND

A. Factual Background

{3} CYFD initiated this proceeding by filing an abuse and neglect petition in district
court against Heather S. (Mother) alleging, in relevant part, that her son (Child) was
abused and neglected because: (1) Mother caused Child to be medically neglected, (2)
Mother had unresolved domestic violence issues, (3) Mother allowed Child to live in
substandard and hazardous housing, and (4) Mother educationally neglected Child. In
support of its petition, CYFD provided the affidavit of its investigator, and presented
testimony at the adjudication hearings from two CYFD investigators, Child’s
kindergarten teacher, and Child’s principal. Mother also testified. The parties presented
the following evidence.

1. September 2018 incident

{4} Prior to commencement of the present action, a CYFD investigator responded to
an incident at Mother’s home in September 2018 following a domestic dispute between
Mother and a man called Jimmy, an individual who sometimes stayed with Mother and
with whom Mother shared a daughter. Mother told the investigator that Jimmy had
choked and hit her. When the CYFD investigator arrived at Mother’s home, Jimmy was
gone, and Mother was there with her two daughters. Mother told the CYFD investigator
that she also had a son, Child, who was living at the Children’s Treatment Center (CTC)
where he was receiving treatment for his severe Attention Deficit Hyperactivity Disorder
(ADHD).

{5} The CYFD investigator described Mother’s home during this visit as “a little
messy,” but expressed no safety concerns with the condition of Mother’s home. The
CYFD investigator testified that there were cars and car parts in the front yard, but not a
lot, and that the backyard was “not really messed up at all.” And she acknowledged that
she never asked Mother if the children play in either the front or back yards.

{6} Rather, the CYFD investigator explained that CYFD’s safety concerns at the time
were “[j]ust the domestic violence with [Jimmy] and [Mother.]” Regarding the domestic
violence, the investigator testified that she told Mother,

[I]t would probably be a good idea to get a restraining order if she was
going to get a restraining order. Pretty much, I knew that it had not been
the first time that had happened, and I know she had had domestic
violence in the past with other people. So I explained to her that it is a
good idea to protect her kids.

Following the September 2018 incident, CYFD did not put a safety plan in place, nor did
CYFD offer assistance to Mother or require any action on her part. See 8.10.3.7(XX)
NMAC (explaining that a “‘safety plan’ is a detailed strategy that outlines immediate
action steps the family and their network will take to help keep the child safe from the
identified danger indicators”).

{7} Without testifying about any other instances, the CYFD investigator testified that
she was concerned because Mother and Jimmy had a history of domestic violence and
if Jimmy was still living there, there could be another incident. Mother denied that he
lived at her home. The investigator explained she was concerned with Jimmy coming
and going because they had been unable to reach him to assess the risk he posed.

2. November 2018 incident

{8} CYFD next contacted Mother in the early morning hours of November 29, 2018,
after a police officer, who was there to arrest the children’s two babysitters on
outstanding warrants, 1 requested a safety inspection of the home to determine if
removal of the children was necessary. Mother, who had been at the casino with Jimmy
when CYFD was called, was at a neighbor’s house when the CYFD investigator arrived.
The CYFD investigator inspected the home and testified that, “in the kitchen, there was
an electrical socket that had no plate or covering so the wires were exposed”; there was
a sharp steak knife on the kitchen table “where the kids had access to it”; there were
piles of clothes in the doorway, hallway, and in the childrens’ bedrooms; there were also

1The record is unclear as to the reason for the warrants and only reflects that Mother left Child with two
babysitters who were her friends. Indeed, CYFD acknowledges the record does not indicate the reason
for the arrests.
piles of trash and debris in every room, “making it very hard to walk.” There were
“multiple roaches in the home scurrying around” in several rooms of the house, as well
as dirty dishes and old food in the kitchen sink and the kitchen floor was “greatly
discolored and sticky.” The CYFD investigator also testified that the bathroom was dirty,
with empty boxes and a discolored floor, the tub was dirty, “spotted black,” and there
was a “noticeable but faint smell of urine” throughout the entire house.

{9} After inspecting the home, the CYFD investigator informed Mother, who was
visibly upset and crying, that CYFD was called by law enforcement due to the condition
of the home. She explained that CYFD had safety concerns with the exposed electrical
socket, the steak knife on the table, and the clutter inside and outside of the house,
which could make it difficult for the family to exit quickly in an emergency. The CYFD
investigator told Mother that she needed to clean up the yard and create a safe path,
and Mother said she would work on it. Mother also agreed to clean the inside of the
home, and informed the CYFD investigator that she had been trying but was having a
difficult time getting rid of the roaches.

{10} The CYFD investigator then woke up the children, who had been asleep, and
observed that Child was free from any injury. Child wore pajamas that were slightly
dirty, with spots on them, however, none of the children were described as
malnourished. Nevertheless, based on the investigator’s safety concerns with the
condition of the home, CYFD took the children into custody and Child was later placed
in foster care.

{11} Another CYFD investigator testified that when the children were brought into
CYFD’s receiving center later that day, they “had a smell to them,” were “kind of dirty,”
and their shoes were “tattered and their clothes were dirty.” However, the children had
coats and were dressed appropriately for the weather. Regarding Mother, the
investigator testified that Mother did not indicate whether she had gotten a restraining
order since they last spoke in September, but acknowledged that she was not sure if
Mother had been given any information, by either CYFD or law enforcement, on how to
obtain a restraining order. Mother admitted to the CYFD investigator that she needed to
clean and that the steak knife should not have been left on the table, but said it was up
to Jimmy to clean the outside of the home because the cars and car parts were his.

{12} CYFD returned to Mother’s home the next day, November 30, 2018, to inspect
Mother’s progress on remediating CYFD’s concerns about the condition of the home. At
this inspection, the CYFD investigator observed stained carpets and “a lot of stuff
everywhere,” including a tire rim and “a big container full of just like car parts” in one of
the children’s rooms. The CYFD investigator testified that “[t]he kitchen was still kind of
a disaster, dishes everywhere.” CYFD was concerned that, because the children were
small and there was no pathway to the front of the house, that they could trip and hurt
themselves on the clutter, and because the car parts were “metal they could hurt
themselves on that.”

{13} However, upon returning to Mother’s home on that same day, November 30,
2018, the CYFD investigator did not see any cockroaches in the home, Child’s room
was “pretty clean” except for the tire rim, and “the living room was pretty clean too.”
Notwithstanding these improved conditions, Child was not returned to Mother “mostly
because the condition of the home had not changed,” and CYFD did not believe the
Child would be safe going home with Mother.

3. Child’s medical care and behavioral issues

{14} CYFD held a Family Centered Meeting (FCM) on November 30, 2018, the day
after the children were removed, to meet with Mother, explain why the children were in
custody, and come up with a plan so that the children could be returned to Mother.
CYFD expressed its concern about Child’s medication and behavior at school. The
CYFD investigator testified that, as far as she knew, Mother did not fill Child’s
prescription right away after he left CTC, and Mother told her she had issues getting his
medication because of the “manufacturer or something.” Mother also informed Child’s
principal she had had some difficulty filling Child’s prescription. While Child’s principal
testified, “it was obvious” to her that Child was not on his medication and Mother
acknowledged that there was a one-to-two-day lapse in Child’s medication due to a
preauthorization period required by her insurance, there was no evidence that Child had
not been on his medication otherwise. Indeed, Mother provided Child’s medication to
the CYFD investigator the day of the FCM.

{15} CYFD also expressed concern with what it had learned about Child’s behavior at
school. The record reflects that Child’s behavior would on occasion escalate to a point
where his classroom had to be evacuated. In September 2018, Child’s behavior was
described by his teacher as “very disruptive to the learning environment. It had a pretty
wide range of intensity from crying and refusing to do work to where the classroom had
to be evacuated because he was tipping over the tables and throwing the chairs.” The
evacuations were necessary to prevent Child from harming himself or others by kicking,
biting, or throwing objects in the classroom. Child’s teacher stated his behavior was
violent and his demeanor was frustrated and aggressive during these outbursts.

{16} While it is unclear in the record when and how many of these outbursts occurred,
Child’s teacher ultimately concluded that all the incidents occurred while Child was in
Mother’s care. The record indicates that Mother promptly came to the school when
called to address these incidents, expressed concern with Child’s behavior, and
explained she believed his medication was affecting his behavior. During at least one of
the incidents at school when Child was living with Mother, he was able to self-soothe
after an outburst event requiring much less assistance from his teacher.

{17} Mother explained to the district court that she first noticed Child’s behavior issues
at age one and addressed them at that time by taking him to his pediatrician, who
referred Child to PB & J Services, and PB & J Services referred Child to Behavior
Management Services (BMS). BMS provided Child with twenty hours a week of service
while he was at school, but then referred him to CTC for the first time after identifying he
needed greater services. Mother initiated all of Child’s treatments and services. Mother
testified that Child was placed in CTC’s residential treatment program twice, and the
second time was from March 2018 until September 28, 2018. It was during his second
stay at CTC that Child was prescribed methylphenidate, a medication commonly known
by the brand name Ritalin for ADHD. She testified that CTC provided her with a one-
month supply of Ritalin following Child’s discharge on September 28, 2018.

{18} Mother testified that her routine for Child was to wake him up between 6:45 a.m.
and 7:15 a.m., get him dressed, and feed him breakfast before giving him his
medication. Mother explained she would feed Child prior to giving him his medication
because it could cause decreased appetite. Mother testified that after refilling the
prescription she noticed a change in Child’s behavior. Mother also noticed a change in
Child’s behavior after his discharge from CTC, explaining that, “[Child] has always had a
very hard time with change and transitions. So he went from an adjustment from having
a very strict, very structured daily routine to having to share his time with his sisters and
getting back in the home routine.” To address these issues, Mother attempted to
arrange wraparound services, but was not able to do so until CTC fully discharged
Child, at which point he was put on a waitlist. In the meantime, Mother actively sought
treatment for Child, arranging for play therapy treatment, and reaching out to CTC to
schedule outpatient therapy.

4. School attendance

{19} CYFD was also concerned that Child had missed school but knew that Mother
had transportation issues. Child had been absent twelve times and tardy fifteen times,
during the first 60-day trimester. Some of the tardies were excused but none of the
absences were. Three absences and four tardies are attributable to CTC during this
time. While Child’s teacher testified Child was absent or tardy 72% of the time, he did
not know how many absences or tardies occurred when Child was with Mother and
could not explain how he came up with the percentage. 2 When Mother brought Child to
school late, she signed him in and walked him to class as required.

{20} At Child’s parent-teacher conference held just before Thanksgiving 2018, Mother
addressed Child’s attendance issues explaining they lived out-of-district and had
transportation issues, but explained she was trying to resolve the issue. While Child’s
principal testified that she did not observe an improvement in Child’s attendance after
this conference, there were only three school days3 between the parent-teacher
conference and when Child was removed from Mother’s care. Nevertheless, the tardies
and absences had a negative impact on Child’s academics and his social-emotional
development, which affected his ability to form relationships with his peers. CYFD
acknowledged that Mother placed Child in therapy to address his behavior issues, but
then stated Mother had no plan to address his behaviors, absences, and tardies from
school.

2Child’s teacher testified he got the percentage from Synergy, an attendance tracking software, but did
not explain how this system attributed specific dates to Mother to come up with this percentage.
3See APS 2018-2019 calendars https://www.aps.edu/schools/documents/
documents/archived/traditional-calendar-2018-19/view (last visited Sept. 26, 2024);
https://www.nctq.org/dmsView/abq (last visited Oct. 2, 2024).
5. District Court’s decision

{21} At the conclusion of the two-day adjudication proceeding, the district court found
that Child was a neglected child under Section 32A-4-2(G)(2). Even though the district
court acknowledged that “mom did a good job . . . with a hard child to deal with,” the
district court concluded that “the cumulative evidence,” including the “unresolved
domestic violence issue” proved by “clear and convincing evidence . . . that [Child] was
neglected to a certain degree.” The district court found that Mother “failed to protect the
children” because she did not obtain a restraining order against Jimmy, who “could have
been violent at any time” and Mother “couldn’t have protected the kids from him.”

{22} The district court also found that “there was some educational neglect” because
the “[t]welve absences and fifteen tardies in a semester is not acceptable and it did
affect [Child].” Additionally, the district court found that “the condition of the home is
more than dirty,” including the metal car parts and “stuff in the childrens’ bedroom” that
could have been a tripping hazard. The district court indicated, “[Mother] was told she
needed to clean it up, and a couple of months later it was worse.” The district court
noted the “conflict in the testimony about medication and behaviors and when [Child]
was on meds and off meds,” but, ultimately, the evidence showed that “that there is
chaos at home and that it needs to be resolved.” The district court entered a written
order adjudicating Child as a neglected child under Section 32A-4-2(G)(2). Mother
appealed to the Court of Appeals.

6. Court of Appeals decision

{23} Prior to issuing its memorandum opinion, the Court of Appeals ordered
supplemental briefing from the parties on the legal standard for neglect under Section
32A-4-2(G)(2). Notwithstanding its order, the Court of Appeals majority declined to
address the legal standard, concluding the issue was unpreserved, and even if it had
been preserved, the standard needed no clarification. State ex rel. CYFD v. Heather S.,
A-1-CA-38614, mem. op. ¶ 21 (N.M. Ct. App. July 6, 2021) (nonprecedential). 4
Ultimately, the Court of Appeals affirmed the district court, holding that it “need not
make any specific determination with respect to each finding of neglect by the district

4We note that Judge Ives called for a clarified standard of what constitutes neglect under the Abuse and
Neglect Act (ANA) in his dissent, reasoning that the language of the act is insufficient to make parents
aware of what conduct is prohibited and insufficient to guide CYFD in its enforcement of the act. Id. ¶ 29.
Judge Ives raised the concern that the statute fails to give parents fair warning of what conduct will
constitute neglect and may be constitutionally infirm on vagueness grounds. Id. ¶ 38. However, Mother
agrees that she did not challenge the constitutionality of Section 32A-4-2(G)(2), and she does not raise
the issue before this Court. Because neither party has challenged the constitutionality of this statute, this
Court need not engage in a void for vagueness analysis. Allen v. LeMaster, 2012-NMSC-001, ¶ 28, 267
P.3d 806 (“It is an enduring principle of constitutional jurisprudence that courts will avoid deciding
constitutional questions unless required to do so.” (internal quotation marks and citation omitted)).
Notably, the Court of Appeals has held that the language of Section 32A-4-2(G)(2) is not void for
vagueness. State ex rel. CYFD v. Shawna C., 2005-NMCA-066, ¶ 39, 137 N.M. 687, 114 P.3d 367
(holding that the phrase “without proper parental care and control . . . because of the faults or habits of
the child’s parent,” provides an adequate standard “to guide CYFD in its enforcement activities and do[es]
not invite or encourage arbitrary enforcement.” (internal quotation marks and citations omitted)).
court . . . [because] the combined effect of Mother’s failures support[ed] the district
court’s finding of neglect by clear and convincing evidence.” Id. ¶ 14 (citation omitted).
The Court of Appeals reasoned that there was substantial evidence of a clear and
convincing nature to support the decision of the district court based on the following:
there was a reasonable inference that Mother was not giving Child his medication based
on his behavior, id. ¶ 15; Mother “failed to demonstrate that Child’s attendance issues
resulted from circumstances beyond her control,” id. ¶ 16; Mother was “warned” in
September 2018 about CYFD’s concern with the condition inside and outside of her
home and the conditions were worse in November 2018, id. ¶ 17; and Mother did not
obtain a restraining order against Jimmy, disregarding the advice of the CYFD
investigator. Id. ¶ 18. Mother appealed this decision and this Court granted the petition.

II. DISCUSSION

A. Preservation

{24} Mother asks this Court to apply statutory construction principles and clarify the
legal standard for neglect in New Mexico under Section 32A-4-2(G)(2). CYFD contends
that this question is not properly before this Court because Mother did not raise it below,
and instead it was raised by the Court of Appeals. It is undisputed that this issue was
not raised before the district court. However, “this Court’s role is to engage in statutory
construction and apply a judicial interpretation that fully illuminates the Legislature’s
intent in enacting the child abuse statute.” State v. Consaul, 2014-NMSC-030, ¶ 31, 332
P.3d 850 (citation omitted).

{25} Furthermore, “[a]lthough generally, ‘propositions of law not raised in the trial court
cannot be considered sua sponte by the appellate court,’ we have previously done so to
resolve ‘questions of a general public nature affecting the interest of the state at large.’”
Id. ¶ 27 (quoting State v. Jade G., 2007-NMSC-010, ¶ 24, 141 N.M. 284, 154 P.3d 659).
“We will also determine propositions not raised in the trial court where it is necessary to
do so in order to protect the fundamental rights of the party.” Consaul, 2014-NMSC-030,
¶ 27 (internal quotation marks and citation omitted).

{26} Here, concluding that it was a matter of general public interest, the Court of
Appeals raised questions about our neglect standard sua sponte and ordered
supplemental briefing on the issue. See Heather S., A-1-CA-38614, mem. op. ¶ 26
(Ives, J., dissenting) (“This case presents an issue of profound importance not just for
Mother and Child but for families throughout our state.”). Because this Court is obligated
to interpret statutes, Consaul, 2014-NMSC-030, ¶ 31, the right to parent is fundamental,
State ex rel. CYFD v. Hector C., 2008-NMCA-079, ¶ 11, 144 N.M. 222, 185 P.3d 1072,
and the issue was raised as a matter of great public importance with an opportunity for
the parties to be heard, our consideration of this issue is appropriate. Accordingly, we
proceed to address New Mexico’s neglect standard under Section 32A-4-2(G)(2).
B. New Mexico’s Legal Standard for Neglect Under Section 32A-4-2-(G)(2)

{27} The parties request that we interpret Section 32A-4-2(G)(2) of the ANA which
presents a question of law that we review de novo on appeal. Shawna C., 2005-NMCA-
066, ¶ 24 (citation omitted). “In construing the language of a statute, our goal and
guiding principle is to give effect to the intent of the Legislature.” Grisham v. Romero,
2021-NMSC-009, ¶ 23, 483 P.3d 545 (citation omitted). “[W]e look to the ‘object the
legislature sought to accomplish and the wrong it sought to remedy,’” State v. Rowell,
1995-NMSC-079, ¶ 8, 121 N.M. 111, 908 P.2d 1379 (citation omitted), examining first
the language of the statute, though we “may also consider the history and background
of the subject statute.” State ex rel. Klineline v. Blackhurst, 1988-NMSC-015, ¶ 12,
106 N.M. 732, 749 P.2d 1111 (citation omitted).

{28} With the Children’s Code, which includes the ANA, the Legislature sought “first to
provide for the care, protection and wholesome mental and physical development of
children coming within the provisions of the Children’s Code and then to preserve the
unity of the family whenever possible.” NMSA 1978, § 32A-1-3(A) (2009); see also State
ex rel. CYFD v. Raquel M., 2013-NMCA-061, ¶ 29, 303 P.3d 865 (quoting § 32A-1-
3(A)). Taking these purposes into consideration, we recognize that “there is often a
tension between the physical, mental and emotional welfare and needs of the child, . . .
and the understanding that parental rights are among the most basic rights of our
society and go to the very heart of our social structure.” State ex rel. CYFD v. Benjamin
O., 2007-NMCA-070, ¶ 34, 141 N.M. 692, 160 P.3d 601 (internal quotation marks and
citations omitted). See Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (holding that
parents have a constitutionally protected liberty interest in rearing their children). With
the Legislature’s objectives in mind, we consider the language of Section 32A-4-2(G)(2).

{29} Section 32A-4-2(G)(2) provides that a neglected child is one

who is without proper parental care and control or subsistence, education,
medical or other care or control necessary for the child’s well-being
because of the faults or habits of the child’s parent, guardian or custodian
or the failure or refusal of the parent, guardian or custodian, when able to
do so, to provide them.

The plain language of the statute requires that two conditions be satisfied before a child
meets the definition of a “neglected child.” Id. The first addresses the circumstances and
condition of the child, mandating that the child must be “without proper parental care
and control . . . necessary for the child’s well-being.” Id. The second addresses the
culpability of the parent, requiring that the child’s lack of proper parental care and
control must be “because of the faults or habits” of child’s parent or the “failure or
refusal” of child’s parent to provide the necessary care or control. Id. (emphasis added).
Absent proof of both of these elements by clear and convincing evidence, a child is not
neglected.
1. Proof required to show the child is “without proper parental care and
control . . . necessary for the child’s well-being”

{30} Before a child is adjudicated neglected, CYFD must provide clear and convincing
evidence that the child is without proper parental care and control, including but not
limited to subsistence, education, and medical care. Section 32A-4-2(G)(2). CYFD must
also show that the care and control that is lacking is necessary for the child’s well-being.
Section 32A-4-2(G)(2); see State ex rel. Health & Soc. Servs. Dep’t v. Natural Father,
1979-NMCA-090, ¶¶ 9, 14, 93 N.M. 222, 598 P.2d 1182 (discussing the list as
nonexclusive). The standard articulated by the Legislature, however, does not provide
specific guidance to explain what amount of care and control a parent is required to
provide to avoid an adjudication of neglect under the statute. Instead, the statute
delineates only that proper care and control is that which is “necessary for the child’s
well-being.” Section 32A-4-2(G)(2). This explanation, rather than answering our
question, only leads us to another: What did the Legislature mean when it required that
the care and control must be “necessary for the child’s well-being?”

{31} “Our principal goal in interpreting statutes is to give effect to the Legislature’s
intent.” In re Mahdjid B., 2015-NMSC-003, ¶ 25, 342 P.3d 698 (internal quotation marks
and citation omitted). “In interpreting statutory language, we look first to the plain
language of the statute.” In re Guardianship of Patrick D., 2012-NMSC-017, ¶ 13, 280
P.3d 909 (text only) (citation omitted). However, “we look not only to the language used
in the statute, but also to the purpose to be achieved and the wrong to be remedied.”
Mahdjid B., 2015-NMSC-003, ¶ 25 (internal quotation marks and citation omitted). As
we consider the Legislature’s intent, “[w]e analyze a ‘statute’s function within a
comprehensive legislative scheme.’” Id. (internal quotation marks and citation omitted).

{32} The Legislature did not define “necessary for the child’s well-being.” Section 32A-
4-2(G)(2). We interpret the Legislature’s broad language referring to “other care or
control,” as well as its requirement that the care and control be “necessary for the child’s
well-being” as its recognition that each child has differing needs and that the needs of
one child may require care and control that is not needed or not appropriate for another.
Id. By choosing these broad terms, the Legislature gave wide latitude to consider
whether the needs of each child are being met, but this latitude makes it difficult to
discern a standard by which parents are to be measured as courts consider whether
children are neglected.

{33} As we begin our analysis, “we first turn to the plain meaning of the words at issue
. . . using the dictionary for guidance,” as we often do, N.M. Att’y. Gen. v. N.M. Pub.
Regul. Comm’n, 2013-NMSC-042, ¶ 26, 309 P.3d 89 (citation omitted), “to ascertain
[the word’s] ‘ordinary meaning.’” State v. Nick R., 2009-NMSC-050, ¶ 18, 147 N.M. 182,
218 P.3d 868. “Necessary” means “absolutely needed: required.” Necessary, Merriam-
Webster Collegiate Dictionary (11th ed. 2005). Our analysis becomes more complicated
when we consider the plain meaning of “well-being” as it is used in Section 32A-4-
2(G)(2). “Well-being” is commonly defined as, “the state of being or doing well in life;
happy, healthy, or prosperous condition; physical, psychological, or moral welfare.”
Well-being, Oxford English Dictionary (2nd ed. 1991). See also, well-being, Merriam-
Webster Collegiate Dictionary (11th ed. 2005) (defining well-being as “the state of being
happy, healthy, or prosperous”). Taking these definitions into account along with the
purpose of the statute, we do not believe the Legislature intended that every child who
is not happy and prosperous must be adjudicated neglected. See State ex rel. Helman
v. Gallegos, 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d 1352 (explaining that
“courts must exercise caution in applying the plain meaning rule,” as a statute’s
“beguiling simplicity may mask a host of reasons why a statute, apparently clear and
unambiguous on its face, may for one reason or another give rise to legitimate (i.e.,
nonfrivolous) differences of opinion concerning [its] meaning”). We also see room for
differing opinions as to what parental care or control is “necessary.”

{34} Concluding that the plain language of Section 32A-4-2(G)(2) does not resolve
what the Legislature intended when evaluating whether a child is neglected, we look to
other provisions of the ANA in an effort to discern legislative intent. See Mahdjid B.,
2015-NMSC-003, ¶ 25. “The ANA, as part of the Children’s Code, must be read as an
entirety and each section interpreted so as to correlate as faultlessly as possible with all
other sections.” Id. ¶ 26 (text only) (citation omitted). The provisions of the Children’s
Code, including Section 32A-4-2(G)(2), “should be interpreted in such a manner as to
effectuate its purposes, which include preservation of family unity when possible.” Id.
(internal quotation marks and citation omitted). Statutes must be considered “as a whole
and in reference to statutes dealing with the same general subject matter.” In re Grace
H., 2014-NMSC-034, ¶ 34, 335 P.3d 746 (internal quotation marks and citation omitted).
“Whenever possible, we must read different legislative enactments as harmonious
instead of as contradicting one another.” Mahdjid B., 2015-NMSC-003, ¶ 26 (internal
quotation marks and citation omitted).

{35} We note that the Legislature has provided some guidance in other provisions of
the ANA, explaining that we should interpret the Children’s Code such that “[a] child’s
health and safety shall be the paramount concern,” with the preservation of the family,
whenever possible, coming next. Section 32A-1-3(A). The Legislature explained that the
“[p]ermanent separation of a child from the child’s family . . . would especially be
considered when the child or another child of the parent has suffered permanent or
severe injury or repeated abuse.” Id. Considering the definition of “well-being” along with
the guidance provided by the Legislature, we conclude that the Legislature intended that
to find a child to be without proper parental care and control necessary for the child’s
well-being such that the child must be removed from the family, the child must be
subjected to circumstances that create a serious risk to the child’s mental or physical
health and safety. A serious risk is one that is likely to result in important or dangerous
consequences for the child. See serious, Merriam-Webster Collegiate Dictionary (11th
ed. 2005) (defining “serious” as “having important or dangerous possible
consequences”). This standard balances the Legislature’s concern for the preservation
of the family, when possible, while retaining as the paramount concern, the health and
safety of the child. Courts must be cautious to avoid finding neglect in every lapse in
parental care or control and must focus on those instances or circumstances likely to
have a serious or significant impact on a child’s health and safety. Evidence that
supports only “a vague inference of future harm” does not rise to the level of neglect as
defined in Section 32A-4-2(G)(2). Shawna C., 2005-NMCA-066, ¶ 22.
{36} We note that Mother initially argued in her briefing that a finding of neglect
“requires a showing of both actual harm and risk of potential future harm,” and cannot
be based on a risk of future neglect. Mother later acknowledged at oral argument before
this Court that a risk of future harm is a proper consideration in a determination of
neglect. Neither the plain language of Section 32A-4-2(G)(2) nor other statutes and
case law support an actual harm requirement. Indeed, both our statutes and case law
contemplate the consideration of the risk of harm to the child in the calculus of child
neglect and indicate that a lack of parental care or control can take many forms,
including a failure to properly supervise a child to keep the child out of harm’s way. See
§ 32A-4-4.1(I)(2) (2019) (requiring CYFD at the initial stage of an investigation to assess
the risk of imminent danger to the child and the risk of the “child becoming . . . a
neglected child”); Shawna C., 2005-NMCA-066, ¶ 15 (upholding child as neglected and
at substantial risk of harm based on mother’s prior neglect of her other children); State
ex rel. CYFD v. Cosme V., 2009-NMCA-094, ¶¶ 16, 21, 146 N.M. 809, 215 P.3d 747
(implicitly considering father’s failure to protect children from a known risk of harm by
upholding the district court’s finding of neglect based on father’s failure to protect
children from “[in]adequate supervision and care, [and lack of a] safe and stable home
environment”); State ex rel. CYFD v. William M., 2007-NMCA-055, ¶ 62, 141 N.M. 765,
161 P.3d 262 (explaining that father neglected children by, among other things, failing to
protect them from mother’s neglect). Before finding neglect in such circumstances,
however, courts must conclude that the risk of harm to the child is a serious risk that is
likely to result in important or dangerous consequences for the child.

2. Whether the absence of proper parental care and control is because of the
faults or habits of the parent

{37} Should the district court find that a child is “without proper parental care and
control . . . necessary for the child’s well-being,” it must then determine whether the
shortfall is “because of the faults or habits of the child’s parent . . . or the failure or
refusal of the parent . . . when able to do so, to provide them.” Section 32A-4-2(G)(2).
Again, the Legislature’s language is sufficiently broad to take into account differing
abilities of parents to provide resources necessary for the well-being of their children,
noting that a parent’s failure or refusal to provide resources must be “when [he or she] is
able to do so” before a child is adjudicated neglected. Id. “[T]he focus [of this culpability
element] should be on the acts or omissions of the parents in their caretaking function
and not on apparent shortcomings of a given parent due to [any] unfavorable status,”
Shawna C., 2005-NMCA-066, ¶ 30, poverty being the most common. When considering
a parent’s ability to provide necessary care, any unfavorable status excusing parent’s
responsibility must be beyond his or her control and a parent’s actions must be
reasonable under the circumstances. Id. ¶ 28. This consideration of a parent’s ability
“operates to exclude cases in which even an exemplary parent could not provide ‘proper
parental care and control.’” Id. (citation omitted).

{38} Mother contends that when we consider the Legislature’s intent in implementing
Section 32A-4-2(G)(2), we must conclude that the Legislature intended that we presume
that it is in a child’s best interest to remain with the child’s parent “unless the State
provides clear and convincing evidence to support each specific element of Section
32A-4-2(G)(2).” We agree. It is not the court’s role to determine whether a child would
be better off in foster care than with the child’s parent when considering whether a child
is neglected. Instead, it is the court’s obligation to consider whether a child’s parent is
providing those things absolutely needed for the child’s well-being, and if not, whether it
is the parent’s acts or omissions, rather than poverty, or some other unfavorable status
that are the cause of the parent’s shortcomings.

3. Aggregation of multiple failures to provide proper care and control

{39} Mother next claims that it was improper for the district court to aggregate the
individual complaints against her in its determination of neglect because nothing in the
plain meaning of the statute permits aggregation, and, standing alone, “none of the
individual complaints considered at trial would have been sufficient . . . for a finding of
neglect.” We disagree with Mother’s assessment of the plain meaning of the statute.
The plain language of Section 32A-4-2(G)(2) specifies that multiple areas of parental
care are “necessary for a child’s well-being.” Thus, the district court may consider
multiple areas of parental care in determining whether a child is neglected. See Natural
Father, 1979-NMCA-090, ¶¶ 9, 14 (noting the enumeration and explaining ‘“other care
or control,’ . . . is care and control other than subsistence, education and medical
attention, but is care or control necessary for the child’s well-being”). While the statute
does not contain express language permitting aggregation, we read the enumeration of
multiple areas of proper parental care and control in Section 32A-4-2(G)(2) as allowing
the district court to consider together evidence bearing on different areas of proper
parental care and control in its determination of neglect.

{40} A parent may be at fault for failing to provide “proper parental care or control” in
just one area or in multiple areas of parenting. One area of parental care—for example,
financial support alone—may be so deficient that a child’s well-being is negatively
impacted to a level constituting neglect. See, e.g., State ex rel. CYFD v. Alfonso M.-E.,
2016-NMCA-021, ¶ 31, 366 P.3d 282 (reasoning child was neglected based on father’s
failure to “provide financial support for Child or make other arrangements for Child’s
care or placement while Father was incarcerated”). Likewise, a single incident may form
the basis for an adjudication of neglect. See, e.g., State ex rel. CYFD v. Amanda M.,
2006-NMCA-133, ¶ 31, 140 N.M. 578, 144 P.3d 137 (affirming determination that child
was abused and neglected based on mother’s failure to notice injuries to child and
failure to seek immediate medical care on one occasion); see also In re Victoria CC.,
681 N.Y.S.2d 870, 933 (N.Y. App. Div. 1998) (determination of neglect based on leaving
a nine-month-old child unattended in a bathtub). However, it may also be the case that,
while one area of parental care is deficient, it is not so deficient so as to rise to the level
of neglect under Section 32A-4-2(G)(2). See, e.g., State ex rel. CYFD v. Michelle B.,
2001-NMCA-071, ¶ 21, 130 N.M. 781, 32 P.3d 790 (reversing determination of neglect
based on mother’s failure to notice injury to child where there was no evidence that
mother should have been alerted to injury, that child had been in danger, or any other
evidence of neglect).

{41} But, where there are multiple failures to provide proper parental care or control,
which alone may have been insufficient to rise to the level of neglect, the combined
effect of these failures may be sufficient to constitute neglect under Section 32A-4-
2(G)(2). In Eventyr J., the Court of Appeals held that substantial evidence supported the
district court’s finding that mother

emotionally abused and neglected her children by the combined effect of:
(1) leaving them unattended for long periods of time, (2) exposing them to
dangerous situations, (3) failing to understand their physical and emotional
needs, (4) failing to empathize with their feelings, (5) being self-centered
in her interactions with them, (6) exposing them to domestic violence, (7)
exposing them to substance abuse, (8) showing an indifference to their
needs in favor of her own, and (9) placing them with inappropriate
caretakers.

1995-NMCA-087, ¶ 14 (emphasis added). The Court of Appeals properly considered
several areas of proper parental care and control together to conclude that the child was
neglected. Nonetheless, while multiple parental failures may be aggregated to support a
finding of neglect, it remains CYFD’s burden to prove by clear and convincing evidence
that the combined effect left the child without proper parental care and control
necessary for the child’s well-being, and the child’s neglect can be attributed to the fault
or failure of the parent. Shawna C., 2005-NMCA-066, ¶¶ 7, 28; State ex rel. CYFD v.
Amanda H., 2007-NMCA-029, ¶ 21, 141 N.M. 299, 154 P.3d 674.

C. Substantial Evidence of a Clear and Convincing Nature Does Not Support
the District Court’s Adjudication of Neglect

{42} Following two days of hearings, the district court adjudicated Child a neglected
child, entering an order containing only sparse, conclusory, factual findings to support
its holding, stating,

[Mother] failed to protect the [C]hild from the violence and domestic abuse
of [Jimmy], failed to meet [Child’s] educational needs and ensure he
attends school, failed to meet [Child’s] medical needs and ensure he takes
his medications, as required, and failed to maintain a safe and stable
home for the [C]hild.

The district court did, however, provide an oral explanation of its ruling, discussing each
of the factors it considered in its determination that Mother had neglected Child. Initially,
the district court stated,

I think it is clear by clear and convincing evidence that if you add
everything together that there was neglect, that [Child] was neglected to a
certain degree. Now was it a lot of neglect? Was it bad neglect? Did
Mother do nothing to help him with his need for medication? No, I don’t
think that’s true. I think mom did a good job in some ways, a very good job
with a hard child to deal with.
....

So I am finding that all of that by clear and convincing evidence . . . that
the child was a neglected child and that it is in the best interests of the
child the State maintain custody for a period of up to two years. Hopefully
it is not a period of any length at all to allow her to get some help, to
resolve some of these issues. Any help the State can give [Mother] I
would appreciate.

We discuss the district court’s more specific explanation of its ruling below, as we
address its rationale for adjudicating Child as neglected.

1. Standard of review

{43} To determine if substantial evidence of a clear and convincing nature supports
the district court’s factual findings regarding Mother’s failures, we do not reweigh the
evidence and “[w]e will uphold the district court’s judgment if, viewing the evidence in
the light most favorable to the judgment, a fact finder could properly determine that the
clear and convincing standard was met.” Hector C., 2008-NMCA-079, ¶ 11 (internal
quotation marks and citation omitted). “For evidence to be clear and convincing, it must
instantly tilt 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.” Eventyr J., 1995-NMCA-087, ¶ 2 (internal quotation marks and citation omitted).

{44} Then, considering those findings supported by substantial evidence of a clear
and convincing nature, we review de novo whether those findings supported the district
court’s conclusion that Child is a neglected child as a matter of law under Section 32A-
4-2(G)(2). State ex rel. CYFD v. Lisa A., 2008-NMCA-087, ¶ 6, 144 N.M. 324, 187 P.3d
189 (stating that we review the district court’s conclusions of law de novo).

2. The district court’s finding that Mother failed to meet Child’s medical needs
is not supported by substantial evidence

{45} Finding Mother failed to meet Child’s medical needs, the district court reasoned,
“there is a conflict in the testimony about [Child’s] medication and behaviors and when
he was on meds and off meds but it looks like from the evidence I have heard [Mother’s]
explanation of [Child’s] behaviors doesn’t straighten out the problem. It is still
concerning to me that there is chaos at home and that it needs to be resolved.”

{46} First, we note that whether parent has “straighten[ed] out the problem” is not the
appropriate standard to evaluate whether a parent has neglected a child. The standard
for neglect is not outcome determinative, but instead evaluates whether the parent has
left the child without proper parental care and control necessary for a child’s well-being.
It does not ask whether a parent has fixed the problem, but instead requires the district
court to consider whether a parent is taking sufficient and appropriate steps to address
the problem. See Section 32A-4-2(G)(2). And if a parent is not taking sufficient and
appropriate steps, is it because of the faults and habits of the parent, or for a reason
parent cannot control?

{47} Here, the district court heard testimony that Child was a very difficult child who
had severe ADHD and had been in residential treatment at CTC, that he had behavior
issues at school, which were more extreme after Child left CTC, that he was prescribed
Ritalin and was sent home with a one-month supply, that Mother did not immediately
refill his prescription upon discharge, that “it was obvious” to Child’s principal that Child
was not on his medication, and that there was at least a one- to two-dose lapse of Child
taking his medication.

{48} There was also evidence that Mother had difficulty filling Child’s prescription due
to a delay with insurance, but that Mother had his medication at the time of removal and
provided it to CYFD. The district court also heard Child had a difficult time with
transitions and Mother sought treatment for Child’s behavioral problems continuously
beginning when he was a year old up until he was removed by CYFD, including
Mother’s efforts to secure wraparound services after Child was released from CTC
before going into CYFD custody.

{49} This evidence does not establish by clear and convincing evidence that Child
was without proper parental care and control necessary to address his medical needs.
Indeed, the evidence establishes that Child suffered from severe behavioral health
challenges, and Mother identified Child’s behavioral issues in early childhood and
consistently sought out support and treatment for Child up until the time CYFD took
Child into custody. We recognize the district court heard conflicting evidence as to
whether Child consistently received his medication during the two-month period he was
with Mother from the time he was released from CTC until he was taken into custody by
CYFD. Viewing this evidence in the light most favorable to the district court’s judgment,
as we must, we cannot say that under the circumstances of this case, a few missed
doses of Child’s ADHD medication during a two-month period, whatever the reason,
demonstrates by clear and convincing evidence a serious risk that is likely to result in
important or dangerous consequences for Child. It was because of Mother’s efforts to
obtain treatment for Child that Child was prescribed the medication, and the record
indicates that she did refill the medication because she had it for CYFD at the FCM.

{50} We also question whether Child’s ADHD medication can be considered
absolutely necessary for his well-being in light of our Legislature’s express prohibition
against CYFD taking a child into custody “solely on the grounds that the child’s parent
. . . refuses to consent to the administration of psychotropic medication to the child.”
NMSA 1978, § 32A-4-6(B) (2015). 5 Ritalin is a psychotropic medication. 6 Because the

5Section 32A-4-6(B) was amended by Chapter 41, Section 48 of New Mexico Laws of 2022, 2nd
Session, but the quoted provision was in effect at the relevant time and the amendment does not change
this language.
6See Commonly Prescribed Psychotropic Medications Fact Sheet, https://www.nami.org/About-Mental-
Illness/Treatments/Mental-Health-Medications/types-of-medication/methylphenidade-or-
dexmethylphenidate-concentra-ritalin-and-others/ (last visited Sept. 26, 2024);
Legislature has clearly stated that a child cannot be taken into CYFD custody for a
parent’s refusal of treatment by psychotropic drugs, we cannot see how Child’s missed
doses of Ritalin, whether by Mother’s failure or refusal, can form the basis of neglect of
a child’s medical needs.

{51} To be sure, failure or refusal to treat a child’s mental or emotional illness can be
the basis for a finding of child neglect. See In re C__F__B__, 497 S.W.2d 831, 835 (Mo.
Ct. App. 1973) (explaining the duty to provide medical care “extends to . . . treatment for
mental and emotional ills”). However, here, considering Mother’s diligent action in
seeking treatment and medication for Child from the time he was a year old, the fact
that Mother could likely have legally refused to give Child the medication altogether, and
the evidence in the record indicating a few lapses in Child’s medication, we conclude
that substantial evidence of a clear and convincing nature did not support the district
court’s finding that Mother failed to exercise proper parental care and control over
Child’s medical needs. Mother did not subject Child to circumstances that created a
serious risk to Child’s physical or mental health and safety. Instead, the evidence
indicates Child had challenging behavioral issues and Mother exercised appropriate
care and control to address those issues by obtaining consistent and appropriate
treatment for Child. With the exception of Child’s missed medication, which we do not
consider, see Section 32A-4-6(B), CYFD does not point to any failure or refusal on the
part of Mother to obtain treatment for Child. Rather, CYFD relies solely on the claim that
Child’s behavior was better when he was in the care of CTC than when he was with
Mother. While there are myriad reasons this might be the case, some of which have
been discussed above, this is not the test set out by our Legislature—a test that
balances the interests of the parent and the child and works to “preserve the unity of the
family whenever possible.” Section 32A-1-3(A). CYFD has failed to show that Child was
medically neglected pursuant to Section 32A-4-2(G)(2).

3. The district court’s finding that Mother failed to protect Child from
domestic violence was not supported by substantial evidence

{52} As part of the “cumulative evidence” the district court considered in finding
Mother neglected Child, the district court found that Mother failed to protect Child from
the violence and domestic abuse of Jimmy. The district court expressed that the
domestic violence issue was the most concerning among Mother’s failures. The record
indicates that the district court based its finding, in significant part, on Mother’s failure to
obtain a restraining order against Jimmy.

{53} To be sure, the risk posed by a history of domestic violence combined with a
failure to take any action to prevent future instances of domestic violence is serious and
may constitute neglect under certain circumstances. In re Guardianship of Ashleigh R.,
2002-NMCA-103, ¶ 21, 132 N.M. 772, 55 P.3d 984 (“Evidence of past domestic
violence can be relevant in an action for neglect when the abused parent fails to
recognize the harm the violence causes the children or refuses to get help in ending the

https://www.jber.jb.mil/Portals/144/Services-Resources/Resiliency-
Resources/PDF/SelfCareTipSheets/Common%20psychotropics.pdf (last visited Sept. 27, 2024).
situation.”); see also Eventyr J., 1995-NMCA-087, ¶¶ 22, 24 (reasoning that a parent
exposing a child to violence combined with an unwillingness to take action to make the
environment safer for the children is relevant to a parent’s neglect and may constitute
clear and convincing evidence of neglect); State ex rel. CYFD v. Tammy S., 1999-
NMCA-009, ¶ 18, 126 N.M. 664, 974 P.2d 158 (concluding that mother’s failure to follow
the treatment plan, along with her subsequent reunification with father “was sufficient
evidence that [m]other was unable to protect the children from [f]ather’s abuse or to
properly provide for them”). To prove neglect resulting from domestic violence, CYFD
must show that the domestic violence renders a parent unable to properly care for their
children. Amanda H., 2007-NMCA-029, ¶ 21 (providing that CYFD must prove
“culpability through intentional or negligent disregard of [the c]hild’s well-being and
proper needs”); see also 43 C.J.S. Infants § 21 (May 2024 update) (providing “the focus
is whether evidence of neglect of one child indicates a fundamental defect in the
parent’s understanding of the duties of parenthood”).

{54} We find the Court of Appeals’ decision in Ashleigh R. instructive. In Ashleigh R.
the Court of Appeals applied the neglect standard set out in Section 32A-4-2(G)(2) to
determine whether a mother was unfit in a custody dispute between the mother and the
grandparents of mother’s two children. 2002-NMCA-103, ¶¶ 20-21. The Court of
Appeals heard evidence of incidents of domestic violence between the mother and the
children’s father in their home, as well as evidence that the mother and her second
husband “experienced domestic problems” requiring the mother to spend a week in a
women’s shelter. Id. ¶ 21. Acknowledging that domestic violence could support a finding
of neglect “when the abused parent fails to recognize the harm the violence causes to
the children or refuses to get help in ending the situation,” the Court of Appeals
concluded that the children were not neglected under the facts of that case. Id. ¶ 21.
The Ashleigh R. Court explained that the domestic violence occurred four years prior to
the hearing while parents were still married and living together. There was no evidence
the children were present or witnessed these incidents. Id. Further, “there was no
evidence of continuing abuse” in the relationship between the mother and her second
husband. Id. The Ashleigh R. Court concluded that “the district court’s finding that some
incidents of domestic violence have occurred in [m]other’s home does not support a
finding that [m]other has been neglectful of her children.” Id.

{55} Here, the district court was presented with evidence of a single incident of
domestic violence in Mother’s home for which Child was not present. We acknowledge
that Child’s sisters were present during the September 2018 domestic violence incident,
and evidence of abuse or neglect of other children can support a finding of neglect of a
sibling. See Shawna C., 2005-NMCA-066, ¶ 26 (acknowledging that harm to other
children can be considered in finding neglect of another child). However, nothing in the
record indicates that Child’s sisters witnessed the domestic violence, or that they were
physically abused by Jimmy.

{56} As we evaluate Mother’s interactions with Jimmy and whether her failure to
obtain a restraining order showed a “fundamental defect” in her parenting, see 43 C.J.S.
Infants § 21, we find two facts, in addition to those set out above, particularly relevant.
First, CYFD acknowledged at the hearing that at no time did it put a safety plan in place
requiring Mother to refrain from contact with Jimmy or to seek services for domestic
violence. And while CYFD was concerned that Mother did not file a restraining order
following the September 2018 incident, the record reflects only that CYFD told Mother “it
would probably be a good idea to get a restraining order, if she was going to get one,”
and CYFD’s witness did not know if Mother was given any more information about how
to get a restraining order. See State ex rel. CYFD v. Joseph M., 2006-NMCA-029, ¶ 20,
139 N.M. 137, 130 P.3d 198 (deeming it “noteworthy that no treatment plans were ever
formulated or implemented in this case” for the father to leave the mother, and the
“[f]ather was never specifically and pointedly told that a failure to separate from [m]other
could constitute a basis for terminating his rights as a parent because that relationship
rendered him unable to properly care for his children”). We can only conclude from this
information that CYFD did not consider this single instance of domestic violence a
serious threat to the well-being of Child, and instead found it to be a vague inference of
future harm. Shawna C., 2005-NMCA-066, ¶ 22.

{57} While the CYFD investigator testified that she knew Mother had a history of
domestic violence, it was “with other people,” and the record is devoid of information
about these events, including when these instances occurred, whether Child or his
sisters were present for any of these other instances, and what steps Mother took to
protect Child and his sisters from further violence. The CYFD investigator did make a
statement that there was a “history of DVM [domestic violence]” between Mother and
Jimmy, that Mother still had contact with Jimmy, and that she did not provide CYFD with
Jimmy’s contact information; however, there is nothing in the record indicating a history
of domestic violence other than the September 2018 incident. Therefore, like in
Ashleigh R., CYFD’s evidence of domestic violence did not support a finding that
Mother failed to protect Child from the abuse and violence of Jimmy when the record
shows that there was a single incident, Child was not present, and there was no
evidence of any ongoing abuse.

{58} Our conclusion in no way is meant to excuse or minimize the traumatic and
deleterious effects of domestic violence on children and families. In this case, however,
CYFD has failed to show how this single instance, outside the presence of Child, that
resulted in neither a safety plan nor a requirement for a restraining order from CYFD,
rises to the level of clear and convincing evidence of neglect.

4. The district court’s finding that Mother failed to maintain a safe and stable
home is not supported by substantial evidence

{59} The district court also found Mother failed to maintain a safe and stable home for
Child. The district court explained that “this really is kind of a dirty home case,” and
found Mother failed in this respect because “[s]he was told she needed to clean it up,
and a couple of months later it was worse.” But the evidence did not support the district
court’s finding for two reasons. First, the district court’s statements indicate that it
misunderstood the facts presented, undermining the district court’s factual findings.
Second, CYFD did not connect the conditions of the home to the risk of harm to or well-
being of Child, more than would support a mere speculation of harm. Shawna C., 2005-
NMCA-066, ¶ 22 (providing that speculation of harm is insufficient to support a finding of
neglect).

a. Inaccurate facts

{60} The record indicates that the district court misapprehended or failed to accurately
recall the testimony related to alleged unsafe conditions in the home when it ordered the
removal of Child. As explained above, the adjudication proceedings were broken up
over two days with a three-month gap between the two hearings. The testimony
presented focused on two separate instances when CYFD visited Mother’s home—one
in September 2018 and the second two months later in November 2018. During the
second hearing, the district court judge summarized the testimony from the previous
hearing, three months earlier. In doing so, he misstated that it was in September when
CYFD first expressed safety concerns with the cleanliness of the home, including its
concern that a steak knife had been left out where Child could reach it. He also stated
that CYFD had safety concerns in September about the babysitters with whom mother
left the children. While CYFD clarified that the children were left with the babysitters two
months later, in November, CYFD did not correct the district court judge’s other
misunderstandings regarding the timing of CYFD’s concerns about the condition of the
home and the knife incident.

{61} In fact, the district court judge heard testimony at the first hearing that, while
CYFD initially thought the home was “a little messy,” it was not concerned about the
condition of the home in September. Rather, it was not until after CYFD’s second visit in
November that it expressed concern with the home. This factual mistake is significant
because the district court, and ultimately the Court of Appeals, charged Mother with
being on notice and failing to remedy the uncleanliness of her home for two months,
when, in reality, CYFD had not expressed concern with the condition of the home until
November, giving Mother only one day to address CYFD’s cleanliness concerns. See
Heather S., A-1-CA-38614, mem. op. ¶ 17 (reasoning in part that substantial evidence
supported the district court’s determination of neglect because Mother was “warned”
about the conditions in September and failed to act).

b. Risks of harm merely speculative

{62} At the adjudication hearings CYFD identified four conditions in Mother’s home as
presenting a danger to Child’s well-being: the steak knife left on the kitchen table; an
exposed electrical socket; the clothes, trash, and car parts scattered throughout the
yard and home; and the overall dirty nature of the home.

{63} With regard to the steak knife, Child and his siblings were asleep when CYFD
found the knife on the kitchen table, and nothing in the record suggests Child had an
opportunity to access it. And the testimony at trial did not indicate how long the socket
had been without a plate, where this socket was, or whether it was accessible to Child,
making it impossible to determine whether the risk of harm to Child was more than
speculative. See Shawna C., 2005-NMCA-066, ¶ 22.
{64} While the tire rim in Child’s room, the piles of clothing, and the car parts in the
front yard present some risk of harm—Child could trip on the car parts or clothing and it
might be more difficult to get out of house in an emergency—these risks, alone, are not
sufficient to require Child’s removal. The regulations governing CYFD require that it
“shall make reasonable efforts to maintain the family unit and prevent the removal of a
child from their home, as long as the child’s safety is assured.” 8.10.3.16(A) NMAC.
These conditions of the home here may have warranted some intervention by CYFD,
see 8.10.6.9(A), (B) NMAC (explaining a family is eligible for in home services without
regard to income, when the child is conditionally safe and the risk of harm is moderate
or high, and even when the child is unsafe, but the risks of harm are low), but CYFD
failed to explain how the risk rose to the level of a serious risk that is likely to result in
important and dangerous consequences to Child rather than a mere speculation of
harm. Shawna C., 2005-NMCA-066, ¶ 22 (providing that speculation of harm is
insufficient to support a finding of neglect). Indeed, the testimony at trial indicated that
when CYFD returned to inspect the house the day after removing Child, there was still
work to be done, but Mother had cleaned the living room and Child’s room, suggesting
that with the notice erroneously attributed to her by the district court after CYFD’s
September visit, Mother was prepared to remedy the concerns about the home
expressed by CYFD.

{65} In sum, the condition of Mother’s home may have warranted some intervention.
See 8.10.6.9(A), (B) NMAC. However, substantial evidence does not support the district
court’s finding that Mother failed to maintain a safe and stable home such that it created
a serious risk to Child’s physical or mental health or safety. This is reinforced by the fact
that Mother worked to resolve the issues with only one day’s notice, getting the home
“pretty clean.” We cannot say that the risk of harm to Child was a serious risk that was
likely to result in important or dangerous consequences. Instead the safety risks were
merely speculative.

5. The district court’s finding that Mother failed to meet Child’s educational
needs is not supported by substantial evidence

{66} The district court found “that there was some educational neglect” based on
Child’s absences and tardies, and that the amount of missed school was not
acceptable, and negatively impacted Child. At trial, the district court heard testimony
that Child was absent twelve days and tardy fifteen days during the first trimester. Of
those absences and tardies, three absences and four tardies occurred during the forty-
four days Child was at CTC, with the rest occurring while he was in Mother’s care.
Child’s teacher testified that the absences affected Child academically and socially.
Child’s principal testified that when she spoke with Mother about Child’s attendance,
Mother explained that she and Child lived out-of-district and Mother had transportation
issues she was trying to resolve.

{67} Child’s absences and tardies while he was with Mother are concerning. However,
we cannot conclude by clear and convincing evidence that the absences and tardies
affected Child such that they created a serious risk to Child’s mental or physical health
or safety likely to result in important or dangerous consequences for Child. First, in
reaching its decision, the district court based its conclusion on the thirty-six school days
from the time Child returned from CTC to the time CYFD removed him from Mother’s
home. CYFD has failed to explain why Child’s poor attendance over this short period of
time is likely to have such deleterious effects on Child and creates such a serious risk
that removal, rather than other remedies, such as those available under the Attendance
for Success Act, are appropriate. See NMSA 1978, §§ 22-12A-1 to -14 (2019) (requiring
public schools to “provide interventions to students who are absent
or chronically absent,” including “services or goods that a student or the student’s family
needs to assist the student to stay in school and succeed,” Section 22-12A-8(E)(8)).

{68} The district court also relied on the testimony of Child’s teacher that Child’s
absences and tardies impacted him academically and socially. Child’s teacher,
however, did not explain how those absences and tardies, over the short period of time
involved, created a serious risk to Child’s mental or physical health. While we do not
doubt that the absences affected Child, we have no evidence to suggest Child could not
recover from these impacts or that they would have important or dangerous
consequences for him. Further, the evidence presented to the district court indicated
that, notwithstanding Child’s tardies and absences, Mother was engaged with Child’s
educational needs. She promptly came to the school on the occasions when Child had
a behavioral outburst and each time expressed her concern with Child’s behavior. When
she was not able to get him to school on time, she would walk him to the office to check
him in and then walk him to class. Absent clear and convincing evidence of a serious
risk to Child, which is not present here, removal and foster care should not be CYFD’s
first course of action and Child cannot be adjudicated neglected.

{69} Even if we were to conclude that sufficient evidence existed to find that Mother
failed to provide proper parental care and control over Child’s education, CYFD did not
present clear and convincing evidence to show that Mother’s failure to satisfy Child’s
educational needs was Mother’s fault and not due to circumstances beyond her control.
See Amanda H., 2007-NMCA-029, ¶ 22 (explaining “the burden [is] on CYFD to
establish that Child was neglected by clear and convincing evidence”); Shawna C.,
2005-NMCA-066, ¶ 28 (explaining the fault requirement is not satisfied when a child is
without “proper parental care and control due to circumstances beyond that parent’s
control or where a parent is acting reasonably”); see also Jacqueline D. Stanley, J.D.,
32 Am. Jur. 3d Proof of Facts § 6 cmt (September 2024 update) (“It is inappropriate for
a court to find that parents have neglected their children in the face of evidence that the
parents are using the resources at their disposal and making reasonable efforts to
provide for the needs of their children.”). The only evidence presented to explain Child’s
absences and tardies came from Child’s principal. Child’s principal testified that Mother
and Child lived out-of-district and Mother explained that she had transportation issues
she was trying to resolve. CYFD did not present evidence that Mother was disinterested
or disengaged from Child’s education, or that she refused to bring him to school.
Instead, the evidence indicated that she walked him to class when he was tardy and
was always responsive when she was contacted by the school. The evidence presented
to the district court does not “instantly tilt 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” Child’s absences and tardies were due to the faults and failures of
Mother. See Eventyr J., 1995-NMCA-087, ¶ 2 (internal quotation marks and citation
omitted).

{70} While the district court did not discuss the effect that poverty had on Mother and
her ability to provide proper care and control necessary for Child’s well-being, the record
makes clear that in this instance, Mother was impacted by poverty. CYFD investigators
testified about children’s tattered shoes and dirty clothes and Mother and Child’s
principal both explained that Mother lacked reliable transportation. See State v. Chavez,
2009-NMSC-035, ¶ 35, 146 N.M. 434, 211 P.3d 891 (citation omitted) (relying on what
was apparent from record to conclude that certain environmental “conditions
evidence[d] poverty”). In Chavez, Justice Bosson, addressing a charge of child
endangerment, explained that these are cases “where the family struggled with poverty,
and our ultimate goal should be to assist, rather than to punish, that status.” Id. ¶ 43.
This is equally true in instances of alleged abuse and neglect. “[P]overty . . . [does not]
equate to neglect.” Shawna C., 2005-NMCA-066, ¶ 30. “[T]he Act does not permit a
court to find abuse or neglect based solely on a parent’s status.” Id. Instead, CYFD
must show “that [m]other’s status renders her unable to care for [c]hild.” Id. Here, CYFD
failed to make such a showing.

III. CONCLUSION

{71} For the foregoing reasons, we reverse the Court of Appeals and remand to the
district court to vacate the adjudication of neglect and dismiss the petition.

{72} IT IS SO ORDERED.

JULIE J. VARGAS, Justice

WE CONCUR:

DAVID K. THOMSON, Chief Justice

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

JOSHUA A. ALLISON, Judge
Sitting by designation