May 8, 2017- State of New Mexico ex rel. Children, Youth & Families Department v. Raymond D., No. 35,616

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: May 8, 2017
NO. 35,616
STATE OF NEW MEXICO ex rel.
CHILDREN, YOUTH AND FAMILIES
DEPARTMENT,
Petitioner-Appellee,
v.
RAYMOND D.,
Respondent-Appellant,
and
ALMA F.,
Respondent,
and
IN THE MATTER OF ADRIAN F.,
a Child.
APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
Jennifer E. DeLaney, District Judge

Children, Youth & Families Department
Charles E. Neelley, Chief Children’s Court Attorney
Rebecca J. Liggett, Children’s Court Attorney
Santa Fe, NM
for Appellee
Law Office of Jane B. Yohalem
Jane Bloom Yohalem
Santa Fe, NM
for Appellant
Law Office of David H. Gorman PC
David H. Gorman
Silver City, NM
Guardian Ad Litem

OPINION
VIGIL, Judge.
{1} 	Father appeals from a judgment terminating his parental rights to Child for
neglect pursuant to NMSA 1978, Section 32A-4-28(B)(2) (2005). The sole issue
presented is whether the district court erred in concluding that termination is in
Child’s best interests on the basis of substantial, admissible evidence. We affirm.
BACKGROUND
{2} 	Child was placed in the custody of the New Mexico Children, Youth and
Families Department (CYFD) on August 14, 2013, when Child was eight years old,
and the causes and conditions that brought Child into CYFD custody were for
physical abuse, medical neglect, emotional abuse, and substance abuse by Mother.
Mother’s parental rights were also terminated, but she has not appealed. We discuss
facts and circumstances related to Mother’s termination only insofar as they relate to
Father’s appeal.
{3} 	At all times during the case, Child needed intensive mental health treatment,
medication, and services. Since being taken into CYFD custody, Child went back and
forth from the Peak Psychiatric Residential Treatment Facility (Peak), and Bonem
Home Facility (Bonem), a mental health residential treatment center. The only
exceptions were for one week when Child was placed in a foster home and when

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Child briefly lived with Father in October 2013.
{4} 	Father began serving a federal prison term in 2010, and in July 2013, shortly
before Child was taken into CYFD custody, Father was released on probation. In
October 2013, Child was released from Peak and temporarily placed with Father.
During that time, Father had great difficulty attending to Child’s needs. While living
with Father and his paternal grandparents, Child punched his grandparents, tried to
punch and bite Father, and needed to be physically restrained by Father to prevent
Child from Child banging his head on the floor. Father testified that he felt Child
needed a higher level of care, and that he also needed training on how to meet Child’s
needs. On November 2, 2013, Father was arrested on new state charges, and CYFD
took Child back into custody. Father remained incarcerated and had no further contact
with Child.
{5} 	On November 13, 2013, Mother pled no contest to neglect of Child, and Mother
was ordered to participate in a treatment plan. Child remained in CYFD custody for
2014 while CYFD worked with Mother; however, Mother failed to comply with the
treatment plan.
{6} 	Father was facing a ten-year potential penitentiary sentence on the state charges
stemming from his November 2013 arrest, and on this basis, Father stipulated to a
finding that reunification with Child was futile on February 19, 2015. The district

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court accepted the stipulation, made a finding that reunification was likely futile, and
ordered that CYFD was relieved of providing treatment services to Father. See NMSA
1978, § 32A-4-22(C)(1) (2016) (providing that the district court may determine that
reasonable efforts at reunification are not required to be made when it finds that the
efforts would be futile). On the same day, Father also pled no contest to neglect of
child due to his incarceration. See NMSA 1978, § 32A-4-2(E)(4) (2009, recodified by
2017 N.M. Laws, ch. 64, § 2, as § 32A-4-2(F)(4)) (defining a neglected child in part
as a child whose parent “is unable to discharge that person’s responsibilities to and for
the child because of incarceration[.]”). On April 13, 2015, Father received a sentence
of two-and-one-half years on the pending state charges, with a scheduled parole date
of June 2016.
{7} 	CYFD filed its motion to terminate parental rights as to both Mother and Father
on June 5, 2015, on the basis of neglect. At the time of the termination of parental
rights (TPR) hearing on January 22, 2016, Child was residing at Bonem, and had been
there for approximately five months.
{8} 	Shasta Rael, Child’s therapist at Bonem, was responsible for Child’s individual
therapy and weekly family therapy sessions, which Mother participated in by phone.
Under cross-examination by Child’s guardian ad litem (GAL), Rael was asked her
opinion about Child’s demeanor after the family therapy sessions, and Rael answered

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that Child was usually calm, but confused about whether he would be reunited with
his parents or be adopted. Having testified on direct examination, that Mother’s
participation in the weekly family therapy sessions had been inconsistent, Rael added
in the GAL’s cross-examination that when there is inconsistency in his family therapy
sessions, Child becomes emotionally volatile, he demonstrates self-harm, and he has
conflicts with his peers. The GAL then asked Rael whether it would be in Child’s best
interests to continue family therapy with his Mother, and Father objected on the basis
that this was not a proper question for lay opinion testimony, and that no foundation
was laid to qualify Rael as an expert to answer the question. The GAL responded that
he was only asking for her opinion as a layperson, which went to the weight of her
testimony and not its admissibility. The district court overruled Father’s objection.
Rael then testified that Child is confused about his future and what the future holds
for him, and that family therapy was dependent on the outcome of the district court’s
decision. Hereinafter, we refer to this statement as the “testimony objected to.” In
Father’s cross-examination that followed, Rael testified that it was her therapeutic
recommendation that it was in Child’s best interests that he temporarily not have
contact with Father.
{9} 	At the end of the TPR hearing, the district court noted that “June in [Child’s]
life is still really far away” and said it could not make the case go on any longer. The

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district court also specifically ruled “that the confusion in Child’s life is leading him
to self-harm and Child’s continued limbo caused the Child confusion.” Father asked
if this finding regarding Child’s self-harm was based on Rael’s testimony, and the
district court answered, “Yes, that his being in limbo is causing him confusion and is
causing him self-harm.” Consistent with its answer, the district court’s written
findings include a finding that “The [C]hild’s confusion about what is happening is
having continued negative consequences on him and the longer he is in legal limbo
the longer and more pronounced these negative consequences are.”
{10} 	The judgment terminating parental rights on the basis of neglect was filed on
April 26, 2016. In the judgment terminating parental rights, the district court found:
“Giving primary consideration to the physical, mental, and emotional welfare and
needs of [C]hild, including the likelihood of adoption if rights are terminated, CYFD
has demonstrated by clear and convincing evidence that [C]hild’s best interests require
that the parental rights of [Father] should be terminated”). Father appeals.
DISCUSSION
{11} 	Father’s sole contention on appeal is that the district court’s finding on the
central issue in this case—that child’s best interests required prompt termination of
Father’s 	parental 	rights—is 	based 	on 	the 	testimony 	objected 	to, 	which 	was
erroneously admitted. For the following reasons, we disagree.

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Standard of Review
{12} 	Section 32A-4-28(A) directs, “In proceedings to terminate parental rights, the
court shall give primary consideration to the physical, mental and emotional welfare
and needs of the child, including the likelihood of the child being adopted if parental
rights are terminated.” We have no New Mexico authority directly on point specifying
our standard of review. However, we are persuaded by the logic and reasoning of In
re Adoption of Randolph, 227 N.W.2d 634, 637 (Wis. 1975), an adoption case.
Randolph states:
The finding [of best interests]is a mixed question of fact
and law. There are certain determinations of historical facts
which must be sustained unless they are clearly against the
great weight and clear preponderance of the evidence. The
determination of where the best interests of the children lie
is 	thus 	a 	question 	of 	fact 	in 	the 	sense 	that 	precise
determinations must be made about specific factors such as
age, finances of the parties, discipline questions, and
psychological 	factors. 	The 	application 	of 	the 	correct
standards for determining the best interests of the child and
the ultimate conclusion of where the best interests of the
children lie is a matter for legal determination by the trial
court, reviewable as such on appeal.
Id.
{13} 	In our review of the district court’s finding of Child’s best interests as a mixed
question of law and fact, we engage in a two-step process. We therefore engage in a
two-step analysis. First, we determine whether substantial evidence supports the

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district court’s findings of fact. See State ex rel. Children, Youth & Families Dep’t v.
Patricia H., 2002-NMCA-061, ¶ 22, 132 N.M. 299, 47 P.3d 859 (stating that in our
appellate review, we determine whether substantial evidence supports the district
court’s decision). “Substantial evidence is relevant evidence that a reasonable mind
would accept as adequate to support a conclusion.” Id. (internal quotation marks and
citation omitted). In determining whether substantial evidence supports the district
court’s finding, we view the evidence in the light most favorable to the judgment. Id.
Second, we determine whether that evidence supports a finding of best interests, a
question of law which we review de novo. See Stanley J. v. Cliff L., 2014-NMCA-029,
¶ 8, 319 P.3d 662 (stating that in applying the facts to determine whether
“extraordinary circumstances” exist under the Kinship Guardian Act, we are presented
with a question of law, and our standard of review is de novo).
Analysis
{14} 	There is no dispute that CYFD established the statutory grounds for termination
of parental rights on the basis of neglect. Under Section 32A-4-28(B)(2), parental
rights “shall” be terminated if “the child has been a neglected or abused child as
defined in the Abuse and Neglect Act and the court finds that the conditions and
causes of the neglect and abuse are unlikely to change in the foreseeable future despite
reasonable efforts by the department or other appropriate agency to assist the parent

8
in adjusting the conditions that render the parent unable to properly care for the child.”
The elements to be proven are that: (1) Child was neglected or abused; (2) the
conditions and causes of Child’s neglect and abuse were unlikely to change in the
foreseeable future; and (3) CYFD made reasonable efforts to assist Father in adjusting
the conditions that rendered Father unable to properly care for Child. See State, ex rel.
Children, Youth & Families Dep’t v. Nathan H., 2016-NMCA-043, ¶ 32, 370 P.3d
782, cert. denied, 2016-NMCERT-___ (May 3, 2016). Father’s no contest plea
satisfied the first element. See State ex rel. Children, Youth and Families Dep’t v.
Melvin C., 2015-NMCA-067, ¶ 13, 350 P.3d 1251 (stating that the court may make
a determination of neglect on the basis of a valid admission). Proof of the last two
elements was not required when Father stipulated to a finding of futility, which the
district court accepted. That is, by stipulating to the finding of futility, Father admitted
the causes and conditions of Child’s neglect were unlikely to change in the foreseeable
future due to his incarceration, and CYFD was not required to make reasonable efforts
to assist Father in adjusting the conditions that rendered Father unable to care for
Child. 	See 	State 	ex 	rel. 	Children, 	Youth 	& 	Families 	Dep’t 	v. 	Vanessa 	C.,
2000-NMCA-025, ¶ 14, 128 N.M. 701, 997 P.2d 833 (recognizing that a finding of
futility results in the removal of a person's expectation to the department’s reasonable
assistance).

1CYFD argues that Father only preserved an objection to the testimony objected
to, and that we can consider the balance of Rael’s testimony in determining
9
{15} 	However, a determination that a child is neglected under Section 32A-4-
28(B)(2) does not end the case. As we have already observed, Section 32A-4-28(A)
directs, “In proceedings to terminate parental rights, the court shall give primary
consideration to the physical, mental and emotional welfare and needs of the child,
including the likelihood of the child being adopted if parental rights are terminated.”
In this case, the termination of Father’s parental rights hinges on whether CYFD
proved that termination was in Child’s best interests. We therefore turn to Father’s
arguments.
{16} 	Father vigorously contends that the testimony objected to was only admissible
through a properly qualified expert, and that the district court erred in admitting the
testimony as lay opinion testimony. CYFD concedes that the testimony objected to
was inadmissible as lay opinion testimony. We therefore assume, without deciding,
that the testimony objected to was not admissible. We further assume that the district
court’s finding that Child’s “confusion about what is happening is having continued
negative consequences on him and the longer he is in legal limbo the longer and more
pronounced these negative consequences are” is based only on the testimony objected
to. We therefore proceed to determine whether the district court’s finding of Child’s
best interests is otherwise supported by admissible evidence. 1

whether the district court finding of Child’s best interests is supported by substantial
evidence. We agree. “If a proper objection is not made, the evidence may be
considered in the same manner as any other relevant evidence and has sufficient
probative value to support a finding. . . . Failure to object to the admission of evidence
operates as a waiver.” N.M. Att’y Gen. v. N.M. Pub. Serv. Comm'n, 1984-NMSC-081,
¶ 10, 101 N.M. 549, 685 P.2d 957 (citations omitted).
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{17} 	In pertinent part, the district made findings that family therapy with Mother and
Child was scheduled by the therapist to occur on a weekly basis, but Mother’s
participation was sparse and inconsistent, and outside of therapy, Mother only had
some contact with Child by telephone. This inconsistent contact led Child “to be
confused and he lacks understanding what is in his future, being reunification with his
parents or adoption” and the consequences of this inconsistent contact were that Child
“became more emotionally volatile, demonstrated self-harm and low tolerance
regarding conflict with his peers.” When Father was released from prison and Child
was placed with him in October 2013, for two or three weeks, “[C]hild experienced
aggressive and violent behaviors.” Father was then arrested on November 2, 2013 on
new criminal charges, and has had no contact with Child. Father was scheduled to be
paroled in June 2016, five months after the TPR hearing. However, since Father had
not participated in family therapy, it was not currently in Child’s best interests to have
contact with Father, and Father had not been able to participate in any classes due to

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his maximum security classification, and being on lockdown at the penitentiary. The
time period from the date of the TPR hearing to Father’s anticipated parole date six
months later, was “really far away” for Child, in Child’s experience. Finally, and
importantly, the district court found that Father had “shown an inability to follow the
laws of the State of New Mexico and it is uncertain that inability would change.”
{18} 	The foregoing findings, which do not rely on the testimony objected to, support
the district court’s finding that it was in Child’s best interests to terminate Father’s
parental rights. This case spans over three years of Mother’s inconsistent participation
in her treatment plan and Child’s therapy, Father’s incarceration and lack of
communication with Child, and Child’s continued residency in psychiatric and
residential facilities. It was not in Child’s best interests to make Child wait five more
months for a placement that might be temporary given Father’s recidivism and
inability to attend to Child’s special needs. Child would have to wait five months for
Father to be released from the penitentiary, and then wait for an additional
indeterminate period of time for Father to receive training that might or might not
succeed, in the face of possible reoffending by Father. Child waited for over three
years for his parents to remedy the causes of his neglect, and “the court is not required
to place the [Child] indefinitely in a legal holding pattern, when doing so would be
detrimental to the [Child’s] interests.” State ex rel. Children, Youth & Families Dep’t

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v. Mafin M., 2003-NMSC-015, ¶ 24, 133 N.M. 827, 70 P.3d 1266 (internal quotation
marks and citation omitted).
CONCLUSION
{19} 	The judgment terminating Father’s parental rights is affirmed.
{20} 	IT IS SO ORDERED.
_________________________________
MICHAEL E. VIGIL, Judge
WE CONCUR:
___________________________
JAMES J. WECHSLER, Judge
___________________________
STEPHEN G. FRENCH, Judge