September 9, 2019- CYFD v. Edward W., No. A-1-CA-37908

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO ex rel.
3 CHILDREN, YOUTH & FAMILIES
4 DEPARTMENT,
5 	Petitioner-Appellee,
6 	v. 	No. A-1-CA-37908
7 EDWARDW.,
8 	Respondent-Appellant,
9 and
10 IN THE MATTER OF MIKELE W.
11 	and ELYCIA W.,
12 	Children.
13 	APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
14 William E. Parnall, District Judge
15 	Children, Youth & Families Department
16 Rebecca J. Liggett, Chief Children's Court Attorney
17 	Santa Fe, NM
18 	Kelly P. O 'Ne ill, Children's Court Attorney
19 Albuquerque, NM
20 	for Appellee
21 	Roybal-Mack & Cordova, P.C.
22 	Antonia Roybal-Mack
23 	Albuquerque, NM
24 	for Appellant
Court of Appeals of New Mexico
Filed 9/9/2019 11:03 AM

1 Kim Romero Oak
2 Albuquerque, NM
3 Guardian Ad Litem
4
5 VANZI, Judge.
DECISION
6 {I} 	Edward W. (Father) appeals the termination of his parental rights to Mikele
7 	W. , born July 12 , 2004, and Elycia W., born October 22, 2008 (Children). Father
8 argues that the evidence was not clear and convincing that the Children, Youth, and
9 Families Department (the Department) made reasonable efforts to assist him in
10 	adjusting the causes and conditions that rendered him unable to care for Children.
11 	Unpersuaded that the district court erred in finding to the contrary, we affirm.
12 	{ 2} 	We set out only the pertinent facts and law in connection with the issues
13 	analyzed because the parties are familiar with the facts and procedural posture of
14 this case and because this is a non-precedential expedited bench deci sion. See In re
15 	Court of App eals Ca seload, Misc. Order No. 01-57, ii 4(C) (Sept. 19 , 2016).
16 	BACKGROUND
17 	{3} 	The following 	facts 	are undisputed. 	The Department took Children into
18 	custody on May 6, 2015. In the Affidavit submitted by the Department in support of
19 	its motion for custody, the Department alleged that Children were abused and/or
20 	neglected. Among other things, the Department had received a referral alleging
21 	physical and emotional abuse of Children. Thereafter, the Department learned Father
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1 and Children were usually homeless and, although he denied any substance abuse,
2 Father refused a drug test. Father, who had a long history with the Department,
3 likewise had a history of past criminal activity, including domestic violence, and
4 refused all 	services through the Department, thereby leaving Children without
5 necessary parental support or protection.
6 {4} 	At a hearing in July 2015, Father did not contest the allegation that he had
7 neglected Child under NMSA 1978, Section 32A-4-2(E)(2) (2009, amended 2018),
8 which provides that a child is neglected if the child is "without proper parental care
9 and control or subsistence, education, medical or other care or control necessary for
10 the child's well-being because of the faults or habits of the child's parent. .. or the
11 	failure or refusal of the parent, ... when able to do so, to provide them." In the
12 	stipulated judgment and disposition memorializing the adjudication as to Father, the
13 	district court noted that Father had "exposed [C]hildren to risk of serious harm and
14 	neglect due to his faults and habits."
15 	{5} 	The 	district 	court 	adopted 	a 	treatment 	plan, 	which 	required 	Father 	to
16 participate 	in 	a 	parenting 	program 	and 	individual 	therapy, 	provide 	relative
17 	information, sign requested releases, participate in supervised visitation, participate
18 	in a psychosocial evaluation and follow all recommendations, maintain contact with
19 	the 	Department, 	undergo 	anger 	management, 	substance 	abuse 	treatment, 	and
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1 psychological assessments. Father was also directed to follow all recommendations,
2 and undergo drug testing through random urinalyses.
3 	{6} 	At the initial permanency hearing on March 7, 2016, the district court found
4 that the Department had made reasonable efforts to implement the treatment plan
5 but that Father was making "inconsistent and minimal efforts to comply with his
6 treatment plan." The court adopted a permanency plan of adoption for Children that
7 never changed. In February 2017, the Department moved to terminate Father's
8 parental rights (TPR) pursuant to NMSA 1978, Section 32A-4-28(B)(l) and (B)(2)
9 (2005). The TPR trial took place on July 5, 2017. At the beginning of the TPR trial,
10 	the district court took judicial notice of Father's no contest plea to neglect.
11 	{7} 	Kate Zephyr testified first at the TPR trial. The district court accepted Zephyr,
12 a licensed mental health counselor, as an expert. Zephyr, who works as a therapist
13 	at Open Skies Healthcare, testified that she had been Elycia 's therapist for two years
14 and had provided therapy to Mikele for approximately one and a half years. Children
15 	both had issues stemming from neglect, abuse, and trauma. For example, Zephyr had
16 	to work slowly with Elycia due to Elycia 's "high defense mechanisms in terms of
17 	dealing with any kind of trauma." Mikele was caught with marijuana at school,
18 	disappeared from school and no one knew where he was, he had been acting out
19 angrily, and his grades slipped.
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1 {8} 	Zephyr also saw Father a few times without Children present, but those
2 sessions were ultimately discontinued. She was not able to successfully start family
3 therapy with Father because he was not complying with his parenting plan from the
4 Department. Father's attendance with Zephyr was sporadic. When he did meet with
5 Zephyr, 	Father 	blamed 	the 	Department 	for 	removing 	Children, 	blamed 	the
6 Department for keeping him from Children, and said he did not understand why
7 Children needed therapy. Zephyr told Father that in order for visits to be restarted
8 with Children, he needed to follow his case plan and meet with her to start family
9 	sessions. Father did not follow up and never asked to restart family sessions. In the
10 	six months leading up to the TPR trial, Father did not have any communication with
11 	Children, provided no financial support for Children, and did not participate in any
12 treatment team meetings. Zephyr testified that Father had mental health issues and
13 	would "need to do an incredible amount of [his] own personal therapy work" before
14 he would be able to be a healthy, functioning parent.
15 	{9} 	Jessica Benavidez was a Department permanency planning worker (PPW)
16 who was assigned to Father's case in May 2015 and was his PPW until January 1,
17 2016, when she became a supervisor on his case up to the time of the TPR trial.
18 	Benavidez testified that the safety risks at the time Children were removed were
19 substance 	abuse, 	anger 	issues, 	and 	housing. 	She 	referred 	Father 	to 	Aliviar
20 	Counseling 	for 	anger 	management 	services 	where 	Father 	attended 	an 	anger
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1 management assessment, 	as 	well 	as 	to 	Counseling World 	for 	additional 	such
2 services. In the months before trial, Father did not see Children, did not provide
3 financial support for Children, and did not send letters to Children. In addition, when
4 Benavidez met with Father in January 2017, she learned that Father had made no
5 progress in his treatment plan, his situation had not changed since Children's
6 placement in foster care, he was not involved in any services, and he blamed the
7 Department 	for 	taking 	Children 	from 	him. 	Benavidez 	testified 	that 	Father
8 acknowledged that referrals were offered to him but he did not use them and agreed
9 that they were "s till at square one in regard to the causes and conditions that brought
10 	... Children into custody."
11 	{IO} 	During the trial, the district court asked Father, who arrived an hour after the
12 	trial began, to submit a sample for a drug test because Father "w as acting so
13 	erratically" in the courtroom. Mario Valdez, the surveillance officer for juvenile
14 drug 	court, 	administered 	the 	test 	on 	Father, 	who 	tested 	positive 	for
15 	methamphetamine. Father told Valdez that he had used methamphetamine within
16 the last two days.
17 	{11} 	Father testified that the last communication he had with Children was nineteen
18 	months before trial during a visit at the Department. He told the court that he last
19 used 	methamphetamine 	three 	days 	prior 	to 	the 	trial 	and 	said 	he 	takes
20 methamphetamine to help with stress. Father maintained that the best next steps for
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1 him to address his severe drug abuse was to "do a substance intake somewhere" and
2 that he had insurance to help pay for an inpatient program. He testified that he had
3 contacted Four Winds Behavioral Health in Rio Rancho, New Mexico, the week
4 before the TPR trial but did not make an intake appointment because he wanted to
5 first see how the district court ruled on his cas e. The district court reminded Father
6 that in December 2016, Father' s then-attorney told the court that Father needed
7 inpatient treatment and the court advised Father at that time to get into an inpatient
8 treatment program. When asked whether he attended inpatient treatment at that time,
9 Father responded, "no, sir, I did not."
10 {12} 	After the TPR trial, the district court found by clear and convincing evidence
11 	that Father "abandoned" Children and, on October 12 , 2017, entered a judgment
12 	terminating Father's parental rights. Father appealed, and this Court proposed to
13 	reverse the TPR judgment and "remand to the [district] court to reconsider the
14 termination of Father's parental rights in light of our Supreme Court 's interpretation
15 	of[Section 32A-4-28](B(2)" in In re Grace H , 2014-NMSC-034, 335 P.3d 746. The
16 Department did not oppose the reversal, and we reversed the judgment. State ex re l.
17 	Childre n, Youth & Families Dep 't v. Edward W , No. A-l-CA-36762, mem. op. (Ct.
18 	App. April 3, 2018) (non-precedential).
19 {13} 	On remand, the district court issued a second TPR order terminating Father's
20 parental rights pursuant to Section 32A-4-28(B)(2). Among other things, the court
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1 found by clear and convincing evidence that the Department "had made referrals to
2 services for him, but admitted that nothing had changed and he was in the same
3 situation as the beginning of the case[.]" It al so found that the Department helped
4 	facilitate contact with Children and had given Father the opportunity to provide
5 support, but that he had done neither. Thus, the court found that "the causes and
6 conditions of the neglect and abuse are unlikely to change in the foreseeable future,
7 despite the reasonable efforts by the Department and other appropriate service
8 providers to assist [Father] in adjusting the conditions which render [him] unable to
9 properly care for [C]hildren." This appeal followed.
10 	DISCUSSION
11 	{14} 	Pursuant 	to 	Section 	32A-4-28(B)(2), "the 	court 	shall 	terminate 	parental
12 	rights" when "the child has been a neglected or abused child" and the district court
13 	finds that (1) "the conditions and causes of the neglect and abuse are unlikely to
14 change in the foreseeable future [(2)] despite reasonable efforts by the [D]epartment
15 	.. . to assist the parent in adjusting the conditions that render the parent unable to
16 properly care for the child." The Department bears the burden "to prove [these] ...
17 grounds for termination by clear and convincing evidence." State ex re l. Childre n,
18 	Youth & Families Dep 't v. Tammy S. , 1999-NMCA-009, il 13 , 126 N.M. 664, 974
19 P .2d 158. "Clear and convincing evidence is ... evidence that instantly tilts the
20 	scales in the affirmative when weighed against the evidence in opposition and the
8

1 fact finder ' s mind is left with an abiding conviction that the evidence is true." State
2 	ex re l. Children, Youth & Families Dep 't v. Lance K. , 2009-NMCA-054, ,r 16, 146
3 N.M. 286, 209 P.3d 778 (alteration, internal quotation marks, and citation omitted).
4 	On appeal, this Court "will uphold the district court 's judgment if, viewing the
5 evidence in the light most favorable to the judgment , [the district court] could
6 properly determine that the clear and convincing standard wa s met." State ex re l.
7 	Children, Youth & Famili es Dep 't v. Hector C. , 2008-NMCA-079, ,r 11, 144 N.M.
8 222, 185 P.3d 	1072 (internal quotation marks and citation omitted). Thus, the
9 question before us is "whether the [district] court ' s conclusion, when viewed in the
10 	light most favorable to the decision below, wa s supported by substantial evidence,
11 	not whether the [district] court could have reached a different conclusion." State ex
12 	re l. Children, Youth & Famili es Dep 't v. Patricia H , 2002-NMCA-061, ,r 31 , 132
13 	N.M . 299, 47 P.3d 859. This Court does not "assess the credibility of the witnesses,
14 deferring instead to the conclusions of the [district court]." State ex re l. Children,
15 	Youth &Famili esD ep 'tv. Van essa C. , 2000-NMCA-025 , ,r24 , 128 N.M. 701 , 997
16 P. 2d 833.
17 {IS } 	Father argues on appeal that the evidence was not clear and convincing that
18 	the Department made reasonable efforts to assist him in addressing the causes of
19 Childrens neglect, to wit: Father' s "intransigent drug dependence and mental health
20 problems." 	He maintains that, with 	minor exceptions, the Department did not
9

1 provide "evidence of its efforts regarding the services it was ordered to provide
2 Father."
3 {16} 	This argument fails on both the facts and the law. We note at the outset that
4 the reasonableness of the Department 's efforts depends on the "totality of the
5 circumstances," which may include "the level of cooperation demonstrated by the
6 parent and the recalcitrance of the problems that render the parent unable to provide
7 adequate parenting." State ex rel. Children, 	Youth & Families Dep 't v. Keon H ,
8 2018-NMSC-033, 	,r 41 , 421 	P.3d 	814 	(internal 	quotation 	marks 	and 	citation
9 omitted).
10 {17} 	Here, the district court could reasonably determine that the Department's
11 	efforts were reasonable in light of Father's failure to engage with them. In Keon H.,
12 	our Supreme Court addressed whether the Department's efforts were reasonable
13 	under circumstances similar to those here. Id. ,r 36. In that case, "the Department
14 prepared a treatment plan for [the appellant], went over the treatment plan with
15 	[him], provided [the appellant] with the Department's contact information, and
16 	scheduled appointments for [the appellant]' s psychosocial assessment[,]" but he "did
17 	not show up for the appointments and did not participate in the psychosocial
18 	assessment." Id. ,r 43 . The Court noted that the Department had provided its contact
19 	information to the appellant, but the appellant never contacted his PPW, either when
20 he was in or out of custody. Id. ,r 44. Moreover, the appellant had failed to keep in
10

1 touch with his attorney, despite the court's order that he do so. Id. ,r 49. Our Supreme
2 Court observed that the appellant "ha[ d] continuously failed to show any desire or
3 willingness to 	address the conditions and causes that brought 	[the c]hild 	into
4 custody. [The appellant] never contacted the Department, he missed or canceled
5 scheduled appointments with the Department, and he only visited [the c]hild once or
6 twice at the beginning of the case." Id . ,r 48 .
7 	{18} 	Stating that "[b]oth [the Department] and [the parents] are responsible for
8 making efforts toward reunification of the family[ ,]" the Court concluded that "[t]he
9 record indicates that the Department made reasonable efforts to assist [the appellant],
10 but [he] did not take advantage of those efforts." Id. ,r,r 48, 50; see § 32A-4-22(C)
11 	("[T]he court shall ... order the [D]epartment to implement and the child ' s parent
12 	... to cooperate with any treatment plan approved by the court." ). Because its ' job
13 	is 	not 	to 	determine 	whether the 	Department 	did 	everything 	possible" 	but 	to
14 "determine whether the Department complied with the minimum required under
15 	law," the Court further concluded that "the Department' s efforts, although imperfect,
16 were reasonable" in light of the appellant ' s limited cooperation with the Department
17 and 	compliance 	with 	the 	treatment 	plan. 	Keon 	H. , 	2018-NMSC-033 , 	,r 	43
18 	(alterations, internal quotation marks, and citation omitted).
19 {19} 	There was evidence in this case that the Department provided Father with the
20 treatment plan 	and 	informed 	him 	that 	his 	issues 	with 	substance abuse, anger
11

1 management, and parenting were barriers to reunification with Children and referred
2 him to Aliviar Counseling and Counseling World for services. Zephyr repeatedly
3 told Father that he needed to follow the treatment plan that the Department had
4 prepared and given to him. When the district court questioned Zephyr about what
5 specifically she told Father, Zephyr testified that she told Father that in order to have
6 contact with Children he had to follow the treatment plan that the Department had
7 in place and he had to meet with her consistently. Zephyr stated that there was no
8 confusion about what Father needed to do in order to see Children and that he was
9 eligible to re-engage with her at any time. We note as well that Zephyr spoke with
10 	Father's therapist at Counseling World where he was assessed and was receiving
11 	individual therapy to discuss the work Zephyr was doing with Father. Despite the
12 referrals to Aliviar and Counseling World, and Zephyr' s repeated efforts to get
13 	Father to comply with the parenting plan and attend sessions with her that would
14 allow Children to communicate with Father in a therapeutic setting, he stopped
15 	seeing Zephyr after only a few sessions.
16 	{20} 	In addition to the above, there was substantial evidence that Father understood
17 	his obligations under the plan but failed or refused to meet them. For example, the
18 	district court reminded Father that it told him in December 2016 to go to an inpatient
19 	treatment program, yet Father did not follow that directive. Further, Father testified
20 that he 	contacted 	substance abuse 	providers 	the week 	before trial 	but before
12

1 committing to treatment wanted to learn what the district court ruled following trial.
2 Again, he did not enroll in a program despite both the Department's and the district
3 court's effort to address his ongoing substance abuse issues. Father admitted using
4 methamphetamine and tested positive for them at the TPR trial. As well, Father
5 continued to blame the Department for removing Children and keeping them from
6 him.
7 	{21} 	Additionally, Father had no contact with Children in the six months before
8 trial, had not communicated with Children in nineteen months, did not send cards,
9 letters or gifts to Children, did not participate in substance abuse counseling, did not
10 	maintain contact with the Department, did not participate in treatment team meetings
11 	for Children, and refused to participate in any sessions with Zephyr. Given the length
12 	oftime Children have been in custody, the duration of counseling services repeatedly
13 	offered to Father through more than one source, and Father's lack of engagement
14 with those services and progress toward resolving his drug addiction, we conclude
15 	that the district court could reasonably find that the Department's efforts were
16 reasonable under the totality of the circumstances.
17 	CONCLUSION
18 	{22} 	For the foregoing reasons, we affirm.
13

1 { 23 } 	IT IS SO ORDERED.
2
3
4 WE CONCUR:
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8 	ELINE R. MEDINA, Judge
14