August 31, 2020- CYFD v. Charlie F., No. A-1-CA-38535

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
STATE OF NEW MEXICO ex rel. Filed 8/31/2020 11:54 AM

CHILDREN, YOUTH & FAMILIES
A. al

DEPARTMENT, : > :
Mark Reynolds

v. No. A-1-CA-38535

Petitioner-Appellee,

CHARLIE F.,
Respondent-Appellant,

and

TRINASHA McD.,
Respondent,

IN THE MATTER OF ETERNITY-RAIN McD.,
Child.

APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY
LaDonna L. Giron, District Judge

Children, Youth & Families Department

Rebecca J. Liggett, Chief Children’s Court Attorney
Santa Fe, NM

Kelly P. O’Neill, Children’s Court Attorney
Albuquerque, NM

for Appellee

2
The Law Offices of Nancy L. Simmons	1
Nancy L. Simmons	2
Albuquerque, NM	3
for Appellant	4
Nicoleta Spilca	5
Albuquerque, NM	6
Guardian Ad Litem	7
MEMORANDUM OPINION	8
HANISEE, Chief Judge.	9
{1} 	Respondent Charlie F. (Father) appeals from the district court’s judgment	10
terminating 	his 	parental 	rights. 	On 	order 	of 	this 	Court, 	the 	district 	court	11
supplemented 	its 	judgment 	with 	findings 	of 	fact 	and 	conclusions 	of 	law	12
(supplemental order). Following the entry of the supplemental order by the district	13
court, this Court issued a notice of proposed disposition proposing to affirm. In	14
response, Father has filed a memorandum in opposition and motion to amend the	15
docketing 	statement 	(MIO), 	which 	we 	have 	duly 	considered. 	Remaining	16
unpersuaded, we deny the motion to amend the docketing statement and affirm the	17
termination of Father’s parental rights.	18
{2} 	In his MIO, Father’s continues to argue that the Department failed to make	19
reasonable efforts to assist Father in alleviating the causes and conditions that lead	20
to Child’s neglect. [MIO 14-16] However, Father concedes that this issue as it was	21
raised in his docketing statement was non-meritorious. [MIO 14] Instead, citing	22

3
State v. Penny J., 1994-NMCA-143, ¶ 20, 119 N.M. 328, 890 P.2d 389, Father shifts	1
the focus of his argument regarding the Department’s efforts, arguing that he may	2
impeach their reasonableness “on the basis that those efforts were directed at the	3
wrong causes and conditions or were insufficient because of unique factors.” [MIO	4
14]	5
{3} 	We note that Father’s MIO does not contest or address the district court’s	6
findings that the Department recommended a treatment plan for Father, that Father	7
partially complied with the treatment plan, including discharge from his parenting	8
plan and individual counseling in the summer of 2014, that he continued to test	9
positive for alcohol and illegal substances following discharge, that he did not call	10
in consistently for random urinalysis testing, and that he did not consistently visit	11
with 	Child. 	[Supp. 	Ord. 	FOF 	¶¶15-19] 	Father 	instead 	now 	claims 	that 	the	12
Department’s efforts to assist Father to comply with his treatment plan were	13
unreasonable because the Department did not assist Father to address the underlying	14
issues that Father claims were barriers to his success, including payment for services	15
and transportation and housing issues. [MIO 14-15] We note that Father appears to	16
raise this argument for the first time on appeal and it is not clear whether the facts	17
relied upon to support this argument were presented to the district court during the	18
termination of parental rights hearing. Nonetheless, even assuming these facts were	19
established, “our job [on appeal] is not to determine whether [the Department] did	20

4
everything possible; our task is limited by our statutory scope of review to whether	1
[the Department] complied with the minimum required by law.” State ex rel.	2
Children, Youth & Families Dep’t v. Patricia H. 2002-NMCA-061, ¶ 27, 132 N.M.	3
299, 47 P.3d 859.	4
{4} 	Father’s assertion, citing out-of-state case law, that the termination of his	5
parental rights was based on Father’s poverty alone is not supported by New	6
Mexico’s established jurisprudence or the record below. [MIO 15-16] See id. ¶ 23	7
(“[W]hat constitutes reasonable efforts may vary with a number of factors, such as	8
the level of cooperation demonstrated by the parent and recalcitrance of the problems	9
that render the parent unable to provide adequate parenting.”); see, e.g., State ex rel.	10
Children, Youth & Families Dep’t v. Tammy S., 1999-NMCA-009, ¶ 15, 126 N.M.	11
664, 974 P.2d 158 (“[The f]ather’s transience, failure to communicate, and lack of	12
cooperation rendered the [d]epartment’s efforts sufficient.”). Indeed, “[t]here is little	13
that can be as detrimental to a child’s sound development as uncertainty over	14
whether he is to remain in his current ‘home,’ under the care of his parents or foster	15
parents, especially when such uncertainty is prolonged.” Penny J., 1994-NMCA-	16
143, ¶ 23. As such, we conclude that Father has failed to demonstrate error on appeal.	17
See State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (“[I]t is	18
[the appellant’s] burden to demonstrate any claimed error below.”). We affirm on	19
this issue.	20

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{5} 	Father’s MIO additionally relies on his docketing statement to continue to	1
argue issues two through five as raised therein. [MIO 16-17] With regard to these	2
issues, Father cites to no authority and presents no new facts or arguments in his	3
MIO that persuade this Court that our proposed summary disposition was incorrect.	4
See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our	5
courts have repeatedly held that, in summary calendar cases, the burden is on the	6
party opposing the proposed disposition to clearly point out errors in fact or law.”);	7
State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating	8
that a party responding to a summary calendar notice must come forward and	9
specifically point out errors of law and fact, and the repetition of earlier arguments	10
does not fulfill this requirement), superseded by statute on other grounds as stated	11
in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. Accordingly, for the reasons	12
stated in our notice of proposed disposition and herein, we affirm on these issues.	13
{6} 	We now address Father’s motion to amend, in which he seeks to argue that	14
the district court’s termination of parental rights must be reversed because the	15
findings are insufficient to support that Father abandoned Child. [MIO 2] In order	16
for this Court to grant a motion to amend the docketing statement, the movant must	17
establish good cause for our allowance of such amendment. See State v. Moore,	18
1989-NMCA-073, ¶¶ 41-42, 109 N.M. 119, 782 P.2d 91, overruled on other grounds	19
by State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730; State v.	20

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Rael, 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193, 668 P.2d 309. “The essential	1
requirements to show good cause for our allowance of an amendment to an	2
appellant’s docketing statement are that (1) the motion be timely, (2) the new issue	3
sought to be raised was either (a) properly preserved below or (b) allowed to be	4
raised for the first time on appeal, and (3) the issues raised are viable.” Moore, 1989-	5
NMCA-073, ¶ 42.	6
{7} 	In support of his motion to amend, Father refers to the district court’s	7
judgment entered on September 6, 2019. [MIO 2] However, the district court’s	8
supplemental order clarified that its intended basis for termination of Father’s	9
parental rights was neglect. [Supp. Ord. FOF ¶¶ 9, 15-20 & COL ¶¶ D, E] To the	10
extent Father challenges abandonment, given that the district court’s order clarified	11
it was terminating for neglect, any alleged insufficiency in the findings to support	12
termination on the grounds of abandonment do not provide a basis for reversal. See	13
State ex rel. Children Youth & Families Dep’t v. Melvin C., 2015-NMCA-067, ¶ 15,	14
350 P.3d 1251 (concluding that neglect and abandonment are separate theories under	15
which termination may be pursued and based upon). We therefore deny Father’s	16
motion to amend as to this issue as non-viable. Moore, 1989-NMCA-073, ¶¶ 41-42.	17
{8} 	IT IS SO ORDERED.	18
_________________________________	19
J. MILES HANISEE, Chief Judge	20

—

WE CONCUR:

Aacquslina Ye. Madlimne,

JXCQUELINE R. MEDINA, Judge

MEGAN - DUFFY, Jul/ge