July 3, 2019-State of New mexico ex rel. Children, Youth & Families Department v. Donald G., No. A-1-CA-37500

OCR transcription for search; preserved printed pages are authoritative

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Court of Appeals of New Mexico
Filed 7/3/2019 11:09 AM

IN THE COURT OF APPEALS OF THE STATE OF NEW woudl

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

Petitioner-Appellee,
v. No. A-1-CA-37500
DONALD G.,
Respondent-Appellant,
and
DUSTIN G.,
Respondent.

IN THE MATTER OF THOMAS G.,
KALEIGH G., and WYATT G.,

Children.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Daylene A. Marsh, 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

ark Reynolds

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W bo

TAN

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Law Offices of Jane B. Yohalem
Jane B. Yohalem
Santa Fe, NM
for Appellant
Richard J. Austin P.C.
Richard J. Austin
Farmington, NM
Guardian Ad Litem

DECISION
VARGAS, Judge.
{1} Father appeals the termination of his parental rights to his three children
(Children), arguing that the district court erred in finding the New Mexico Children,
Youth and Families Department (CYFD) made reasonable efforts to assist Father in
adjusting the causes and conditions of Children’s neglect and that CYFD and the
district court violated his due process rights. For the reasons that follow, we affirm.
As the parties are familiar with the facts and procedural posture in this case, our
decision includes only those facts and law necessary to decide the merits.
BACKGROUND
2} On August 19, 2016, Farmington Police sought CYFD’s assistance to assess
the safety of Father’s three school-aged children when officers learned that Children

were not currently enrolled in school and the family was homeless. CYFD filed a

petition alleging that Children were neglected under the Abuse and Neglect Act

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(ANA), NMSA 1978, §§ 32A-4-1 to -35 (1993, as amended through 2019).' The
district court awarded CYFD custody of Children, and eventually placed Children
with their maternal grandfather and his wife (foster grandmother) (collectively,
grandparents) in Eunice, New Mexico on September 12, 2016.

33. On October 31, 2016, the district court entered a stipulated judgment and
disposition that Children were neglected under NMSA 1978, Section 32A-4-2(F)(2)
(2016) (current version at Section 32A-4-2(G)(2)) and adopted a family treatment
plan. The district court found that “[s]ubstance abuse, mental health and housing
instability led to [Father] being unable to provide proper care for [C]hildren.” The
treatment plan required that Father take the following steps toward reunification:
undergo a substance abuse evaluation and a mental health evaluation, follow the
recommendations that arise from those evaluations, participate in hair analysis and
random urinalysis (UA), participate in once weekly visitation with Children via
telephone, complete a parenting class, complete “Bio-Parent Orientation,” maintain
safe and stable housing, seek employment, and complete a medical evaluation.

4; Approximately eight and a half months later, in July 2017, CYFD moved to

terminate Father’s parental rights, alleging that Father was unable or unwilling to

'The petition also named Dustin G. (Mother), whose appeal we decided in
State ex rel. Children, Youth & Families Dep’t v. Dustin G., No. A-1-CA-37362,
dec. (N.M. Ct. App. Apr. 23, 2019) (non-precedential). Our decision today discusses
only the facts and law relevant to Father’s appeal.

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provide proper parental care for Children and had not utilized or benefitted from the
services designed to remedy the conditions and causes of Children’s neglect. After
a hearing on CYFD’s termination of parental rights (TPR) motion in February 2018,
the district court issued extensive findings of fact and concluded that although CYFD
made reasonable efforts to reunify the family, it was in the best interests of Children
to terminate Father’s parental rights. Father appeals.

DISCUSSION

{5} Father makes two arguments on appeal. First, Father argues that the placement
of Children with grandparents in Eunice, New Mexico, nine hours away from Father,
violated the statutory requirement that CYFD make reasonable efforts toward
reunification and violated his due process rights. Second, Father argues that CYFD
and the district court violated his due process rights by terminating his parental rights
instead of pursuing the less restrictive alternative of permanent guardianship. We
address each argument in turn.

Reasonable Efforts

{6} To the extent Father’s arguments involve statutory interpretation, our review
is de novo. State ex rel. Children, Youth & Families Dep’t v. Steve C.,2012-NMCA-
045, 7 8, 277 P.3d 484. Section 32A-4-28(B)(2) of the ANA provides that the district
court shall terminate parental rights if

the child has been a neglected or abused child as defined in the [ANA]
and the court finds that the conditions and causes of the neglect and

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abuse are unlikely to change in the foreseeable future despite

reasonable efforts by [CYFD] to assist the parent in adjusting the

conditions that render the parent unable to properly care for the child.
It is CYFD’s burden to demonstrate that these elements are met by clear and
convincing evidence. State ex rel. Children, Youth & Families Dep’t v. Patricia H.,
2002-NMCA-061, 7 21, 132 N.M. 299, 47 P.3d 859.
(7; When considering the termination of parental rights, the district court is
obligated to “give primary consideration to the physical, mental and emotional
welfare and needs” of children. Section 32A-4-28(A). A termination of parental
rights must be supported by clear and convincing evidence “that instantly tilts 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.” State
ex rel. Children, Youth & Families Dep’t v. Keon H., 2018-NMSC-033, { 37, 421
P.3d 814 (internal quotation marks and citation omitted). Thus, our inquiry on appeal
is whether, “viewing the evidence in the light most favorable to the [prevailing
party], the factfinder could properly determine that the clear and convincing
evidence standard was met.” Jd. J 38. It is not for this Court to reweigh the evidence,
however, and “our task is limited by our statutory scope of review to whether CYFD

complied with the minimum required under law.” Patricia H., 2002-NMCA-061,

{| 28; see Keon H., 2018-NMSC-033, 41.

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{833 | When reviewing the district court’s determination as to whether CYFD made
reasonable efforts to assist the parent in remedying the conditions and causes of
neglect, we consider the totality of the circumstances. Keon H., 2018-NMSC-033,
4 41. “What constitutes reasonable efforts may vary with a number of factors, such
as the level of cooperation demonstrated by the parent and the recalcitrance of the
problems that render the parent unable to provide adequate parenting.” Jd.
(alteration, internal quotation marks, and citation omitted). “[O]ur job is not to
determine whether CYFD did everything possible; our task is limited by our
statutory scope of review to whether CYFD complied with the minimum required
under the law.” Patricia H., 2002-NMCA-061, § 28.

Due Process

{93 “Whether an individual [is] afforded due process is a question of law that we
review de novo.” State ex rel. Children, Youth & Families Dep’t v. Rosalia M.,2017-
NMCA-085, 4 8, 406 P.3d 972 (alteration, internal quotation marks, and citation
omitted). When determining whether due process was satisfied in a termination
proceeding, we employ the three-part balancing test set forth in Mathews v. Eldridge,
424 U.S. 319, 335 (1976). State ex rel. Children, Youth & Families Dep’t v. Raquel
M., 2013-NMCA-061, 4 19, 303 P.3d 865 (“That test requires the weighing of (1)
[parent’s] interest; (2) the risk to [parent] of an erroneous deprivation of such interest

through the procedures used, and the probable value, if any, of additional or

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substitute procedural safeguards; and (3) the government’s interest.”). A parent’s
fundamental interest in regaining a parent-child relationship and the state’s interest
in protecting the welfare of children balance equally in this inquiry, rendering the
second factor of the Mathews test decisive. See State ex rel. Children, Youth &
Families Dep’t v. Mafin M., 2003-NMSC-015, 4 20, 133 N.M. 827, 70 P.3d 1266.
Our analysis centers on whether Father has shown that there is a reasonable
likelihood that the outcome might have been different had he been afforded the
additional procedures that he suggests should have been provided. State ex rel.
Children, Youth & Families Dep’t v. Browind C., 2007-NMCA-023, J 31, 141 N.M.
166, 152 P.3d 153.

Foster Placement

{10} Initially, we note that the district court concluded that it was “substance abuse,
mental health and housing instability” that rendered Father unable to properly care
for Children. Father does not claim that CYFD failed to make reasonable efforts to
assist him in adjusting these conditions. See Section 32A-4-28(B)(2) (2005)
(requiring CYFD to make “reasonable efforts”). Instead, Father contends CYFD
“[v]iolated the [r]equirement that CYFD [m]ake [r]Jeasonable [e]fforts to [rJeunite
[p]arents and [c]hildren” when it placed Children with their grandparents nine hours
away in Eunice, New Mexico, guaranteeing “that the parent-child bond would be

irreparably damaged and that reunification would not be possible.” In support of his

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position, Father argues that, by placing Children with grandparents, CYFD violated
ANA’s mandate to facilitate reunification.

{11} Father initially supported CYFD’s decision to place Children with
grandparents and never told CYFD that he did not want Children placed with them.
Prior to placing Children with grandparents in Eunice, CYFD explored placing
Children with their maternal great-grandmother and with other family members in
the Farmington area. The great-grandmother’s background check raised concerns
resulting from her previous service as a foster parent with CYFD, and no other
family members in the area were willing to take Children.

12} In evaluating the propriety of the foster placement, we recognize that the
Legislature has explicitly required that courts consider family placement, family
connections, and family identity in placing children. See § 32A-4-22(A) (listing
relevant concerns in placement of child, including several aimed at the identification,
location, and investigation of relatives for possible placement). While CYFD’s
placement of Children was not ideal because it limited Father’s ability to have in-
person visitations, the placement satisfied the legislative intent that courts make
reasonable efforts to place Children with family. See § 32A-4-22(A)(6)-(8)
(requiring district court to enter findings considering whether reasonable efforts have
been made to evaluate family placement and consider family identity and

connections); see also § 32A-4-25(1)(6) (permitting the district court to overrule

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CYFD’s placement decision only where “the court determines [CYFD] . . . abused
its discretion in the placement or proposed placement of the child”). Moreover, when
CFYD was unable to place Children with a relative in the area, it sought to
ameliorate the impact of the long-distance relocation and maintain the bond between
Father and Children by arranging the opportunity for Father to make one-hour
FaceTime video conference calls with Children every week. CYFD also provided
Father the opportunity for two supervised phone calls with Children per week.
CYFD provided Father access to a phone if he was unable to call from his personal
cell phone. CYFD provided Father with a bus pass so that he could use public
transportation to attend FaceTime visits and make phone calls to Children. CYFD
also offered to personally transport him to appointments, if necessary. Despite this
offer, Father never asked CYFD for transportation. Finally, CYFD attempted to have
Children transported to see their parents and to have the parents transported to see
Children, but budgetary constraints and the reluctance of family members to assist
with overnight accommodations prevented those in-person visits. Notwithstanding
CYFD’s efforts to arrange video conference and phone visits with Children, Father
failed to take full advantage of these opportunities. As of July 2017, when the TPR
motion was filed, Father had attended twenty-four of the approximately forty-two
FaceTime calls CYFD had arranged. Father typically only called Children once a

month, sometimes less, and never sought additional phone visits.

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{13} As we consider the propriety of CYFD’s foster placement of Children, we
look to the totality of the circumstances surrounding the district court’s
determination that Father failed to adjust the conditions that rendered him unable to
properly care for Children and those “causes of the neglect are unlikely to change in
the foreseeable future despite reasonable efforts by [CYFD].” See § 32A-4-28(B)(2);
see also Keon H., 2018-NMSC-033, { 41 (noting that we consider the totality of the
circumstances). Specifically, the district court found Father “has a severe drug abuse
problem . . . that requires in-patient treatment,” Father failed to do any substance
abuse treatment, and did not complete any UA testing. Father was diagnosed with
several mental disorders and obtained prescriptions for medications to treat those
disorders, but refused to obtain Medicaid or to take the prescribed medications. The
district court also found that Father moved the family between homeless shelters,
tents, motels and friends’ homes and that he “obtained a house for a time that was
uninhabitable.” Father did not challenge any of the district court’s findings related
to his failure to adjust the causes of his neglect of Children, and we are bound by
them when conducting our review. See Rule 12-318(A)(4) NMRA (requiring that
the argument of the brief in chief “set forth a specific attack on any finding, or the
finding shall be deemed conclusive”); see also State ex rel. Children, Youth &
Families Dep’t v. Mercer-Smith, 2015-NMCA-093, § 26, 356 P.3d 26

(acknowledging specific challenges to certain findings of fact and noting that “[a]ny

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unchallenged findings are binding on appeal”), rev'd on other grounds, 2019-
NMSC-005, 434 P.3d 930. Considering the totality of the circumstances, including
CYFD’s placement of Children with family in accordance with legislative intent,
Father’s failure to take advantage of FaceTime and telephone calls to Children, and
Father’s failure to remedy his substance abuse, mental health, and homelessness
issues that rendered him unable to properly care for Children, we conclude that
sufficient evidence of a clear and convincing nature supported the district court’s
determination that CYFD made reasonable efforts to assist Father.

(14; To the extent that Father argues that the placement violated his due process
rights because CYFD failed to make reasonable efforts to reunite him with Children,
we are unpersuaded. Father has failed to demonstrate a reasonable likelihood that
his parental rights might not have been terminated had Children been placed closer
to Father in light of his failure to remedy the causes of Children’s neglect. See
Browind C., 2007-NMCA-023, { 31.

Permanent Guardianship

{15} Father argues that CYFD and the district court violated his due process rights
by terminating his parental rights instead of pursuing the less restrictive alternative
of permanent guardianship. The facts in the record demonstrate that CYFD believed
permanent guardianship was an option early on in the proceedings and that CYFD

informed foster grandmother and Father that guardianship was an option. At the

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close of the TPR hearing, the district court noted that, while guardianship “sound[s]
somewhat attractive to the [district] court,” it was a compromise that did not meet
the best interests of Children. The district court concluded guardianship was not
appropriate because it would not provide Children with the permanence and stability
they needed in light of Father’s failure to make any meaningful efforts to remedy the
circumstances that brought Children into the system since the proceedings began and
those circumstances were unlikely to change in the foreseeable future. The district
court concluded that Father had failed and refused to address many, if not all of the
causes of Children’s neglect. Given Father’s failure to address the causes of neglect,
Father has failed to show that there is a reasonable likelihood that his parental rights
might not have been terminated had the district court granted grandparents
permanent guardianship. See Browind C., 2007-NMCA-023, § 31 (requiring a
showing that there is a reasonable likelihood that the outcome might have been
different if additional procedures had been afforded). “The [district] court was not
constitutionally required to leave open the possibility that [Father] could become
able, at some undetermined point in the future, to parent [C]hildren adequately.”
State ex rel. Children, Youth & Families Dep’t v. B.J., 1997-NMCA-021, 4 18, 123
N.M. 99, 934 P.2d 293.

CONCLUSION

416} We affirm the district court’s decision.

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a7} ITISSO ORDERED.

WE CONCUR:

yatta —

LINDA M. /VANZI, Judge

JENSHFERL. ATTREP, Judge

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JULIE J. VARGAS Judge