August 12, 2020- CYFD v. Hannah C., No. A-1-CA-38341

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO ex rel.	2
CHILDREN, YOUTH & FAMILIES	3
DEPARTMENT,	4
Petitioner-Appellee,	5
v. 	No. A-1-CA-38341	6
HANNAH C.,	7
Respondent-Appellant,	8
and	9
MATTHEW C.,	10
Respondent,	11
and	12
AMANDA BACA-BALDONADO and	13
MATTHEW BALDONADO,	14
Intervenors,	15
IN THE MATTER OF PIXIE ROSE C.,	16
Child.	17
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	18
Marie C. Ward, District Judge	19
Court of Appeals of New Mexico
Filed 8/12/2020 11:43 AM

2
Children, Youth & Families Department	1
Rebecca J. Liggett, Chief Children’s Court Attorney	2
Santa Fe, NM	3
Kelly P. O’Neill, Children’s Court Attorney	4
Albuquerque, NM	5
for Appellee	6
Susan C. Baker	7
El Prado, NM	8
for Appellant	9
Richmond L. Neely	10
Albuquerque, NM	11
for Intervenors	12
Eleanor K. Bratton	13
Albuquerque, NM	14
Jill L. Marron	15
Albuquerque, NM	16
Guardian Ad Litem	17
DECISION	18
B. ZAMORA, Judge.	19
{1} 	Hannah C. (Mother) appeals the termination of her parental rights to Child	20
arguing that (1) the Children, Youth and Families Department (CYFD) failed to	21
make reasonable efforts to assist Mother in ameliorating the causes and conditions	22
which led to the neglect of Child; (2) CYFD failed to provide her with reasonable	23
accommodations under the Americans with Disabilities Act (ADA); and (3) the	24

3
district court’s finding that Mother had presumptively abandoned Child is not	1
supported by substantial evidence. We affirm.	2
BACKGROUND	3
{2} 	On December 9, 2014, CYFD took custody of Child, who was approximately	4
fourteen days old at the time. CYFD filed an abuse and neglect petition alleging that	5
Child was abused and neglected as a result of Mother’s inability “to discharge [her]	6
responsibilities to and for [C]hild because of mental disorder or incapacity.” At an	7
adjudicatory hearing held in April 2015 Mother pled no contest to allegations that	8
Child was a neglected child as defined by NMSA 1978, Section 32A-4-2(G)(2)	9
(2009, amended 2018) (stating that a “neglected child” means a child “without	10
proper parental care and control or subsistence, education, medical or other care or	11
control necessary for the child’s well-being because of the faults or habits of the	12
child’s parent”). The district court found that Child was a neglected child based on	13
evidence that Mother’s “ongoing, unresolved mental health, substance abuse,	14
domestic violence and parenting issues have negatively impacted her judgment and	15
decision-making as it related to her ability to ensure [C]hild’s safety and well-	16
being.”	17
{3} 	A few weeks later, at a dispositional hearing, the district court adopted a	18
treatment plan proposed by CYFD, which set forth “services and steps to promote	19
improved conditions in the home and facilitate reunification.” Pursuant to the	20

4
treatment plan, the district court ordered Mother to (1) “participate in a psychosocial	1
assessment 	and 	follow 	recommendations”; 	(2) 	complete 	a 	“psychological	2
assessment and follow recommendations”; (3) “participate in a domestic violence	3
assessment and follow recommendations”; (4) “sign releases of information [to]	4
obtain pertinent records”; and (5) maintain contact with CYFD and attend visitation	5
with Child. Following implementation of the treatment plan, the district court held	6
six permanency hearings to track Mother’s compliance with the plan. Initially,	7
Mother was fairly compliant with the terms set by the district court, but as the months	8
progressed, her adherence to the plan waned.	9
{4} 	On November 20, 2017, following the last of the six permanency hearings,	10
CYFD moved to terminate Mother’s parental rights on the basis that Mother had	11
failed to comply with the treatment plan. Specifically, CYFD alleged that Mother	12
had failed to accept responsibility for the causes and conditions that brought Child	13
into custody; failed to adequately address mental health issues impairing her	14
parenting abilities; and failed to recognize and adequately address ongoing safety	15
risks to Child.	16
{5} 	Over the course of a five-day termination of parental rights (TPR) hearing,	17
CYFD presented testimony from three of its employees as well as multiple mental	18
health providers detailing their work with Mother during the case and outlining the	19

5
evidence in support of their request to terminate. The district court entered the	1
following findings of fact and conclusions of law relevant to our analysis:	2
9. 	[CYFD] provided referrals for the services required under	3
the treatment plan. During the course of the case, [Mother] participated	4
in several services. She completed her psychosocial and psychological	5
evaluation. She attempted services with Juntos Podemos and Aliviar to	6
address domestic violence concerns. [Mother] also reported seeing a	7
psychiatrist ever[y] few months, but did not engage in individual mental	8
health counseling or services.	9
10. 	The family was referred to A Child’s Voice for therapeutic	10
supports to address bonding, therapeutic visits and parenting. The	11
family was referred to [the University of New Mexico Hospital] Infant	12
Mental Health Program for additional support. [Mother] participated in	13
these services[;]	14
. . . .	15
66. 	Attempts were made at visits to focus on Mother and	16
[C]hild. In March 2016 a visit had been scheduled. However upon	17
arrival at the facility [C]hild became extremely dysregulated in the	18
parking lot. [C]hild was observed in the parking lot. The foster parents	19
were not even able to get [C]hild into the building and she could not be	20
consoled. [Mother] had also been late to that visit. [C]hild was so	21
dysregulated there was a serious concern for her health and well-being,	22
and therefore the foster parents were directed to leave with [C]hild[;]	23
67. 	Ms. [Stacy] Bond then met with [Mother] when she	24
arrived to explain what occurred and her concern. [Mother] then began	25
to make threats toward CYFD, herself, and made assertions of suicide	26
by cop. An ambulance was called and she was transported to the	27
hospital. After [Mother’s] release [from the hospital,] Ms. Bond wanted	28
to meet with [Mother] to develop a safety plan but [Mother] refused to	29
meet[;]	30
. . . .	31

6
74. 	Although extensive efforts were made for frequent regular	1
therapeutic 	visits 	between 	[C]hild 	and 	[Mother], 	and 	supportive	2
services for [Mother] to improve opportunity for success, over time the	3
interactions between [C]hild and [Mother] became worse, causing	4
concern for [C]hild’s well-being and [the visits] were stopped[;]	5
75. 	After the hospitalization after the March 2016 visit, Ms.	6
Bond and other therapists made attempts to meet with [Mother] and	7
address concerns. However, the efforts were not successful, and once	8
again [Mother] made threats and the agency [A Child’s Voice] felt they	9
could no longer safely work with her in providing services[;]	10
. . . .	11
112. 	[Mother] never provided release for medical records to address	12
her physical challenges during the course of this case[;]	13
. . . .	14
114. 	At this time, [CYFD] cannot return [C]hild home, and	15
does not believe the same is possible in the near future. There has been	16
no movement or confirmation regarding [Mother]’s efforts to work on	17
the treatment plan items including individual supports for mental health	18
issues. Moreover, the lack of confirmation of recommended services	19
for 	the 	parents 	has 	precluded 	consideration 	to 	work 	on 	further	20
therapeutic visits[;]	21
115. 	[N]o 	progress 	[has 	been] 	made 	toward 	restoring	22
therapeutic visits. [Mother’s] lack of communication and meeting home	23
visit 	requirements 	also 	precluded 	full 	assessment 	of 	[Mother’s]	24
progress regarding safe living conditions and parenting.	25
{6} 	Based on its findings of fact, the district court concluded that CYFD proved	26
by clear and convincing evidence that (1) Child was abused and neglected; and (2)	27
the “causes and conditions of the neglect have not been alleviated and are unlikely	28
to change in the foreseeable future despite the reasonable efforts of [CYFD.]” The	29

7
district court concluded that termination of Mother’s parental rights “will promote	1
the physical, mental, and emotional welfare and needs of [C]hild.” As a result, the	2
district court entered judgment terminating Mother’s parental rights to Child. This	3
appeal followed.	4
DISCUSSION	5
{7} 	Parental rights may be terminated based upon a finding of neglect when “the	6
conditions of the neglect are unlikely to change in the foreseeable future despite	7
reasonable efforts by the department . . . to assist the parent in adjusting the	8
conditions that render the parent unable to properly care for the child.” NMSA 1978,	9
§ 32A-4-28(B)(2) (2005). CYFD must prove the “grounds for termination by clear	10
and convincing evidence.” State ex. rel. Children, Youth & Families Dep’t v. Tammy	11
S., 1999-NMCA-009, ¶ 13, 126 N.M. 664, 974 P.2d 158. “Clear and convincing	12
evidence means evidence that instantly tilts the scales in the affirmative when	13
weighed against the evidence in opposition and the fact[-]finder’s mind is left with	14
an abiding conviction that the evidence is true.” State ex rel. Children, Youth &	15
Families Dep’t v. Keon H., 2018-NMSC-033, ¶ 37, 421 P.3d 814 (internal quotation	16
marks and citation omitted). We view “the evidence in the light most favorable to	17
the [TPR] judgment” and “will evaluate whether the [district] court could have found	18
by clear and convincing evidence the necessary statutory conditions to termination.”	19
State ex rel. Children, Youth & Families Dep’t v. Patricia H., 2002-NMCA-061,	20

8
¶ 22, 132 N.M. 299, 47 P.3d 859. We will uphold the district court’s judgment	1
terminating parental rights if it is supported by substantial evidence. 	See id.	2
“Substantial evidence is relevant evidence that a reasonable mind would accept as	3
adequate to support a conclusion.” 	Id. (internal quotation marks and citation	4
omitted).	5
I. 	CYFD Made Reasonable Efforts to Assist Mother	6
{8} 	Mother contends that substantial evidence does not support the district court’s	7
conclusion that CYFD made reasonable efforts to assist Mother in ameliorating the	8
causes and conditions which led to the neglect of Child. Specifically, Mother argues	9
that CYFD failed to provide “services to assist” her and “fail[ed] to provide Mother	10
with initial and prolonged visits” with Child. We disagree.	11
{9} 	The law requires CYFD to take affirmative steps to address and correct	12
deficiencies affecting parent-child relationships before moving to terminate parental	13
rights. See NMSA 1978, § 32A-4-22(C) (2009, amended 2016) (“Reasonable efforts	14
shall be made to preserve and reunify the family, with the paramount concern being	15
the child’s health and safety.”). The reasonableness of CYFD’s efforts depend on	16
the totality of the circumstances. See Keon H., 2018-NMSC-033, ¶ 41. “What	17
constitutes reasonable efforts may vary with a number of factors, such as the level	18
of cooperation demonstrated by the parent and the recalcitrance of the problems that	19
render the parent unable to provide adequate parenting.” Patricia H., 2002-NMCA-	20

9
061, ¶ 23. In addition, the law requires CYFD to provide parents with “reasonable	1
rights of visitation.” Section 32A-4-22(D) (“Any parent . . . of a child who is placed	2
in the legal custody of the department . . . shall have reasonable rights of visitation	3
with the child as determined by the court, unless the court finds that the best interests	4
of the child preclude any visitation.”).	5
{10} 	Having carefully reviewed the record, we conclude that substantial evidence	6
supports the district court’s conclusion that CYFD made reasonable efforts with	7
respect to both the provision of services and visitation as required by Section 32A-	8
4-22(C) and (D). Those efforts can be divided into three categories. First, CYFD	9
provided Mother with referrals or direct access to basic services. The various	10
Permanency Planning Workers (PPWs) assigned to Mother’s case referred Mother	11
to food pantries and soup kitchens, provided her with bus passes, budgeting guides,	12
and guides on maintaining a clean home.	13
{11} 	Second, CYFD referred Mother to various counseling agencies, and it referred	14
her for a psychological evaluation and other treatment services. Taylor Boyd, the	15
PPW initially assigned to work with Mother referred her to Aliviar Counseling	16
Services, Inc., for individual counseling and domestic violence counseling. Boyd	17
also referred Mother to Dr. Christopher Alexander, a clinical psychologist, for a	18
neuropsychological evaluation. Based on the neuropsychological evaluation, Dr.	19
Alexander recommended that Mother (1) sign a release for mental health records;	20

10
(2) attend a partners of sex offenders program; (3) receive care from a psychiatrist;	1
(4) attend a domestic violence program; (5) attend supervised visitations with Child;	2
(6) obtain stable housing; and (7) follow through with all medical appointments.	3
Importantly, CYFD made active efforts to refer Mother to additional counseling and	4
mental health treatment services based upon Dr. Alexander’s recommendations, and	5
upon evolving conditions which became evident during the course of Mother’s	6
participation in the treatment plan. Ultimately, Mother was referred to the University	7
of New Mexico’s Infant and Early Childhood Mental Health program to work with	8
Dr. Seema Jacob, an expert in child psychology.	9
{12} 	Finally, 	CYFD 	made 	reasonable 	efforts 	to 	ensure 	continued 	visitation	10
between Mother and Child. Early in the case, when Child was only a few months	11
old, PPW Boyd scheduled the initial parent-child visit between Mother and Child.	12
PPW Boyd testified that during that visit, Child became “dysregulated” and was	13
“screaming.” Due to Child’s dysregulation at the initial visit, Boyd referred Mother	14
to A Child’s Voice, a counseling agency with specialized expertise in parenting and	15
child bonding. Tina Bond, a licensed Clinical Social Worker at A Child’s Voice,	16
testified that Child appeared distressed during the visits with Mother, and engaged	17
in dysregulated behaviors including hair pulling, crying, and failing to make eye	18
contact. Due to Child’s distress, the parent-child visits were shortened. Beginning in	19
January 2016 Child’s foster parents attended the visits, which led Child to be more	20

11
receptive to Mother. However, when the foster parents were no longer allowed to	1
attend the visits in February 2016 Child’s distress returned, and was worse than	2
before.	3
{13} 	The visitation issues came to a head in March 2016. During a scheduled	4
parent-child visit, Child exhibited signs of distress, “couldn’t catch her breath,” and	5
was “red-faced.” Due to Child’s distress, A Child’s Voice ended the visit and sent	6
Child home with the foster mother. After Child went home, Mother said “she was	7
going to hurt CYFD . . . [and] she was going to kill herself.” The parent-child	8
sessions were suspended as a result of Mother’s threats of self-harm and harm to	9
others, but representatives of A Child’s Voice met with Mother in an attempt to	10
implement a safety plan in order to reestablish the parent-child visits. Mother did not	11
engage in the safety plan and consequently, the parent-child visits were not	12
reinstated.	13
{14} 	The record reflects that despite CYFD’s efforts to connect Mother with the	14
services necessary to facilitate her completion of the treatment plan, Mother did not	15
follow through with her responsibilities to attend and document her progress with	16
the treatment plan’s requirements. All three CYFD employees testified that Mother	17
did not adequately progress toward or complete her treatment goals. PPW Boyd	18
testified that while Mother “did attend” the domestic violence course through Aliviar	19
Counseling Services, she “did not complete” it. Similarly, PPW Julia Draper testified	20

12
that when she was assigned to the case in June 2017, Mother was not attending	1
domestic violence counseling. Both PPW Elizabeth Bearzi and PPW Draper testified	2
that Mother failed to make progress in addressing her mental health needs. Finally,	3
although Mother informed PPW Draper that she was receiving mental health and	4
psychiatric care from the University of New Mexico’s COPE clinic (a psychological	5
treatment facility), Mother failed to provide documented proof of her participation	6
in such services, and failed to sign a records release allowing CYFD access to such	7
documentation as required by the court-ordered treatment plan. Based on our review	8
of the record, Mother was continually resistant to CYFD’s efforts to get her to	9
complete and document her treatment. In lieu of participating in the various	10
counseling and treatment services to which she was referred, Mother maintained, “I	11
get my needs addressed there [COPE Clinic]. I don’t need to do anything additional.”	12
The evidence adduced from CYFD employees and Mother’s own statements support	13
the conclusion of the district court that the “causes and conditions of the neglect have	14
not been alleviated and are unlikely to change in the foreseeable future despite the	15
reasonable efforts of [CYFD].”	16
{15} 	The testimony of witnesses from outside of CYFD also demonstrate that	17
Mother failed to adhere to the treatment plan and to acknowledge her parental	18
deficiencies and take steps to address them. For instance, while Mother did attend	19
six psychological evaluation and treatment sessions through the University of New	20

13
Mexico’s Infant and Early Childhood Mental Health, Dr. Jacob ultimately concluded	1
that Mother “did not take any kind of responsibility or accountability as to why	2
[Child] was in the state’s custody.” Dr. Jacob testified that Mother “was not able to	3
think about how [her mental health] conditions impacted her ability to take care of	4
herself” and Child. 	Finally, Dr. Jacob 	concluded that Mother was unable to	5
recognize risks posing safety concerns to the Child. Similarly, Dr. Alexander opined	6
that “nothing would prohibit [Mother] from attending [individual] counseling in	7
terms of her physical functioning, her mobility, [and] cognitive capabilities”; but	8
“the difficulty is and probably has been motivational.”	9
{16} 	Both CYFD and Mother were required to make efforts to reunify the family.	10
See Keon H., 2018-NMSC-033, ¶ 48 (holding that the father failed to make	11
reasonable efforts because he did not contact CYFD, missed appointments, and	12
rarely visited the child). In Keon H., CYFD “prepared a treatment plan for [the	13
f]ather, went over the treatment plan with [him], provided [the f]ather with	14
[CYFD]’s contact information, and scheduled appointments for [the f]ather’s	15
psychosocial assessment[, but he] did not show up for the appointments and did not	16
participate in the psychosocial assessment.” Id. ¶ 43. Similarly, here, Mother failed	17
to complete the various requirements outlined in the court-ordered treatment plan	18
despite CYFD’s efforts to connect her with appropriate services. See id. ¶ 41	19
(“Efforts to assist a parent may include individual, group, and family counseling,	20

14
substance abuse treatment, mental health services, transportation, child care, and	1
other therapeutic services.” (internal quotation marks and citation omitted)).	2
{17} 	With respect to Mother’s claim that CYFD failed to provide appropriate	3
visitation between Mother and Child, it was Mother’s threats of self-harm and harm	4
to CYFD employees that resulted in the end of such visits. CYFD’s request that	5
Mother participate in the development of a safety plan before resuming such visits	6
was not unreasonable. In light of the district court’s statutory duty to consider	7
Child’s “health and safety,” we conclude that CYFD’s suspension of the parent-child	8
visits following Mother’s refusal to participate in a safety plan was appropriate. See	9
§ 32A-4-22(C) (stating that “[r]easonable efforts shall be made to preserve and	10
reunify the family, with the paramount concern being the child’s health and safety”).	11
“[V]iewing the evidence in the light most favorable to the [judgment],” Keon H.,	12
2018-NMSC-033, ¶ 38, we affirm the district court’s termination of Mother’s	13
parental rights to Child, pursuant to Section 32A-4-28(B)(2). Given our holding, we	14
need not address whether the district court properly terminated Mother’s parental	15
rights under Section 32A-4-28(B)(3)(f) (explaining presumptive abandonment).	16
II. 	Reasonable Accommodations under the ADA	17
{18} 	We turn now to Mother’s contention that CYFD failed to comply with the	18
ADA by (1) failing to make a determination as to whether she was a “qualified	19

15
[individual] 	with 	a 	disability[,]” 	and 	(2) 	failing 	to 	provide 	“reasonable	1
accommodations” to aid her with the potential disability. We disagree.	2
{19} 	To establish a violation of the ADA, the burden was on Mother to “establish[]	3
that she was a qualified individual with a disability.” State ex rel. Children, Youth &	4
Families Dep’t v. John D., 1997-NMCA-019, ¶ 21, 123 N.M. 114, 934 P.2d 308.	5
Contrary to Mother’s argument on appeal, the district court did address whether	6
Mother carried her burden; it concluded that she did not.	7
{20} 	Substantial 	evidence 	supports 	that 	conclusion. 	During 	the 	termination	8
proceedings, Mother’s trial counsel argued that due to Mother’s well-documented	9
disabilities Mother was entitled to reasonable accommodations under the ADA.	10
However, Mother never presented evidence in support of this argument. See Muse	11
v. Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104 (“The mere assertions	12
and arguments of counsel are not evidence.”). And on appeal, Mother fails to direct	13
our attention to any evidence supporting her contention that she satisfied the	14
requirements necessary for a finding that she is a “qualified individual with a	15
disability” under the ADA. See State ex rel. Children, Youth & Families Dep’t v.	16
Johnny S. Sr., 2009-NMCA-032, ¶ 8, 145 N.M. 754, 204 P.3d 769 (“[T]he parent	17
must create a factual and legal record sufficient to allow meaningful appellate	18
review[.]”). Because Mother did not establish that she is a qualified individual with	19

16
a disability for whom the ADA requires reasonable accommodations, we need not	1
determine whether CYFD complied with the ADA.	2
{21} 	We also note that Mother did not present her reasonable accommodations	3
argument until nearly four years after CYFD took Child into custody. See id. ¶ 9	4
(“[T]he initial burden to raise and argue the issues—as early in the case as possible—	5
lies with the parents and their counsel.”). This extreme delay deprived CYFD of a	6
meaningful opportunity to make any additional accommodations that the ADA	7
might have required.	8
CONCLUSION	9
{22} 	For the foregoing reasons, we affirm the district’s termination of Mother’s	10
parental rights to Child.	11
{23} 	IT IS SO ORDERED.	12
_____________________________	13
BRIANA H. ZAMORA, Judge	14
WE CONCUR:	15
____________________________	16
JENNIFER L. ATTREP, Judge	17
____________________________	18
ZACHARY A. IVES, Judge	19