March 21, 2012 – State of New Mexico ex rel. Children, Youth & Families Department v. Steve C., No. 31,311

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	March 21, 2012
NO. 31,311
STATE OF NEW MEXICO ex rel.
CHILDREN, YOUTH and FAMILIES
DEPARTMENT,
Petitioner-Appellee,
v.
STEVE C.,
Respondent-Appellant,
and
JULIA A.,
Respondent,
IN THE MATTER OF ALEXIS C. and
MICHAEL C.,
Children.
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
John F. Davis, District Judge

Oneida L’Esperance, Chief Children’s Court Attorney
Rebecca J. Liggett, Children’s Court Attorney
Santa Fe, NM
for Appellee
Jane B. Yohalem
Santa Fe, NM
for Appellant
Michael J. Doyle
Los Lunas, NM
Guardian ad Litem

OPINION
CASTILLO, Chief Judge.
{1} 	Father appeals from an adjudication of abuse of his two children pursuant to
NMSA 1978, Section 32A-4-2(B)(1) (2009). Father claims that hearsay evidence was
improperly admitted and that the district court erred in allowing an amendment to the
petition at the end of the adjudicatory hearing to include the claim of abuse. We hold
that the amendment to the pleading was improper, and we reverse the adjudication of
abuse on that ground.
BACKGROUND
{2} 	In December 2010, the Children, Youth and Families Department (CYFD) filed
a petition against Father and Mother alleging neglect and abandonment of their
children Alexis and Michael (Children). See § 32A-4-2(E)(1) (defining a neglected
child as one “who has been abandoned by the child’s parent); 	§ 32A-4-2(E)(2)
(defining a neglected child as one who is “without proper parental care and control or
subsistence, education, medical or other care or control necessary for the child’s well-
being because of the faults or habits of the child’s parent . . . or [the] refusal of the
parent . . . when able to do so, to provide them”). The adjudicatory hearing for Father
was held on April 14-15, 2011; Mother was not part of this hearing and is not a party
to this appeal.

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{3} 	We provide a short summary of the facts presented at the hearing in order to
give context to this appeal. Mother abandoned Children as toddlers, after which they
were raised for the most part by their maternal grandmother (Grandmother). At first,
Father would drop Children off with Grandmother and leave them for a week or two
at a time. Eventually, he left Children with Grandmother as the primary caregiver
until late 2009. During that time, Children would occasionally live with Father for a
few months at a time, such as when Alexis was of kindergarten age; when Michael
was in fourth, fifth, or sixth grade; and in the summer of 2010. Grandmother said
Father was often hard to find and that her contact with him was limited to the times
she needed his signature to give her power of attorney in order to care for the
Children, which Father provided several times over the years. When Michael was
twelve years old, Father lived nearby, and on about four occasions Michael would go
over to Father’s house for short visits. Grandmother testified that generally Father did
not visit on holidays nor did he show an interest in Children’s education or
extracurricular activities. Father provided no financial support to Grandmother but
allowed her to deduct Children as dependents on her tax return. Father explained that
at one point he had paid for psychotherapy sessions for Michael and interacted with
the therapist, but except for that, Father left it to others to provide for Children’s
medical care. Father testified that the therapist told him that Michael had seen bad

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things when the boy had been with Mother. Several witnesses testified that Mother
used drugs and that she associated with and exposed Children to others who used
drugs.
{4} 	In December 2009, Mother returned to Children’s lives and brought them to
live with her boyfriend, Gustavo, in Santa Fe. When Mother abandoned Children a
second time in February 2010, Gustavo continued to take care of Children. Children
had an overnight visit with Father in May or June 2010, and when Gustavo picked
them up, he noticed that Michael seemed lethargic and glassy-eyed. When Gustavo
inquired about the boy’s demeanor, Michael became insolent and stated that Father
had allowed him to smoke marijuana. Gustavo testified that in July 2010 Mother took
Children, and Gustavo later had to rescue Michael from nearby Grandmother’s home
after Michael called Gustavo explaining that “there was a guy who was beating him
up” and “a pound of meth on the table.” Father continued to allow Children to live
with Gustavo during 2010, but Father provided no financial or medical support despite
Gustavo’s attempts to contact Father for this assistance. Father asserted his parental
rights when he found out that Children had been taken into custody by CYFD in
December 2010. Gustavo told CYFD that he had trouble providing medical care for
Children and called police to help resolve the custody issue. Grandmother offered to
seek custody of Children, but Children resisted staying there because of others in the

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home who were alleged to drink and take drugs.
{5} 	At the end of the hearing—after all of the evidence had been presented—CYFD
asserted in its closing argument that there was sufficient evidence presented at the
hearing to support a finding of abuse. 	The court considered this as a motion to
conform to the evidence pursuant to Rule 1-015(B) NMRA and granted the motion.
The court then found clear and convincing evidence that Father had neglected and
abused Children, but insufficient evidence that Father had abandoned Children. This
appeal followed.
DISCUSSION
Preliminary Issues
{6} 	We have two preliminary issues. First, we note that Father is not challenging
the adjudication of neglect against him under Section 32A-4-2(E)(2). Thus, we do not
review the adjudication of neglect by Father as determined by the district court.
Durham v. Guest, 2007-NMCA-144, ¶ 9, 142 N.M. 817, 171 P.3d 756 (stating that
issues not argued on appeal will not be reviewed on appeal), overruled on other
grounds by 2009-NMSC-007, 145 N.M. 694, 204 P.3d 19. Accordingly, the district
court had a basis on which to make a disposition of the case. NMSA 1978, § 32A-4-
22(B) (2005).
{7} 	Secondly, Father argues that the district court erred in admitting and relying on

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hearsay statements by Children and by Mother to conclude that Father abused
Children. Because we reverse the portion of the adjudication based on abuse, we need
not address this evidentiary question.
Amendment of the Petition After the Close of Evidence
{8} 	We now turn to the question of whether the district court erred in allowing the
amendment 	of 	the 	petition 	after 	closing 	statements. 	As 	a 	general 	matter,
“Amendments are within the [district] court’s discretion and will be reversed on
appeal only for abuse of discretion.” Bellet v. Grynberg, 114 N.M. 690, 692, 845 P.2d
784, 786 (1992) (internal quotation marks and citation omitted). Because resolution
of this matter involves the interpretation and application of rules and a statute, our
review is de novo. 	In re Daniel H., 2003-NMCA-063, ¶ 8, 133 N.M. 630, 68 P.3d
176. The review of issues dealing with the denial of Father’s rights to procedural due
process is also a question of law that we review de novo. See State ex rel. Children,
Youth & Families Dep’t v. Ruth Anne E., 1999-NMCA-035, ¶ 22, 126 N.M. 670, 974
P.2d 164.
{9} 	After closing arguments, the district court addressed the amendment question
as follows:
Rule 10-101 [NMRA] does bootstrap, essentially, the Rules of Civil
Procedure, so we look to [Rule 1-015] for guidance on the issue of
whether the pleadings should be amended to conform to the evidence.
I just want to lay out my thinking on this in the event there is a need to

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have a court review this. What we see is Rule 1-015(B), amendments to
conform to the evidence. 	[reading:] 	“When issues not raised by the
pleadings” —and specifically we’re talking about the allegation of
abuse—“are tried by express or implied consent of the parties, they shall
be treated in all respects as if they had been raised in the pleadings.
Rule 10-101 is found in the Children’s Court Rules, while Rule 1-015 is part of the
Rules of Civil Procedure for the District Courts. CYFD concedes that “[a]djudications
of abuse and neglect are governed by the Children’s Code and the Children’s Court
Rules and not the Rules of Civil Procedure[,]” and therefore the district court
incorrectly applied Rule 1-015. We agree. Rule 10-101(A) directs:
Except as specifically provided by these rules, the following rules of
procedure shall govern proceedings under the Children’s Code [NMSA
1978, § 32A-1-1 (1995)]:
(1) 	the 	Children’s 	Court 	Rules 	govern 	procedure 	in 	the
children’s courts of New Mexico in all matters involving children
alleged by the state:
. . .
(c) 	to be abused or neglected as defined in the Abuse and
Neglect Act[.]
The Children’s Code sets forth the procedure to be used when petitions are amended:
When it appears from the facts during the course of any proceeding
under the Children’s Code that some finding or remedy other than or in
addition to those indicated by the petition or motion are appropriate, the
court may, either on motion by the children’s court attorney or that of
counsel for the child, amend the petition or motion and proceed to hear
and determine the additional or other issues, findings or remedies as
though originally properly sought.

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NMSA 1978, § 32A-1-18(A) (1995) (emphasis added).
{10} 	Along these lines, CYFD acknowledges that Section 32A-1-18 does not contain
language allowing an amendment when issues not raised by the pleadings are tried by
the express or implied consent of the parties. Relying on State v. Franks, 119 N.M.
174, 889 P.2d 209 (Ct. App. 1994), and State v. Salgado, 112 N.M. 793, 819 P.2d
1351 (Ct. App. 1991), CYFD argues that the district court ruling should be affirmed
under the “right for any reason” doctrine. Franks, 119 N.M. at 177, 889 P.2d at 212
(allowing affirmance when a district court ruling is correctly based “on a ground not
relied upon by the district court” but not “if reliance on the new ground would be
unfair to the appellant”); Salgado, 112 N.M. at 796, 819 P.2d at 1354 (same).
According to CYFD, allowing the amendment under Rule 1-015 would be consistent
with the primary purpose of the Children’s Code to “provide for the care, protection[,]
and wholesome mental and physical development of children coming within the
provisions of the Children’s Code” as set forth in NMSA 1978, Section 32A-1-3(A)
(2009). We disagree.
{11} 	We begin by looking at the plain language of the statute. In re Jade G., 2001-
NMCA-058, ¶ 16, 130 N.M. 687, 30 P.3d 376 (“In pursuing this question of
construction of the Children’s Code, we look initially to the plain language of the
Code to ascertain legislative intent.”). Section 32A-1-18(A) refers to facts presented

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that would support “some finding or remedy other than or in addition to those
indicated by the petition or motion” and then directs that the district court may
“amend the petition or motion and proceed to hear and determine the additional or
other issues, findings[,] or remedies as though originally properly sought.” Father was
put on notice regarding claims of neglect and abandonment, but he first learned of the
abuse claim during CYFD’s closing argument at the end of the proceedings. Once the
district court grants a motion to amend, Section 32A-1-18(A) requires the court to
“proceed to hear and determine the additional or other issues, findings[,] or remedies,”
which in this case pertain to the new allegation of abuse. 	Here, the district court
granted the motion to amend the petition, immediately made its ruling, and did not
“proceed to hear” the additional issue. We note that proof of abuse requires elements
that are different from those elements required to prove neglect. An abused child is
defined as one “who has suffered or who is at risk of suffering serious harm because
of the action or inaction of the child’s parent[.]” Section 32A-4-2(B)(1). A neglected
child is one “who is without proper parental care and control or subsistence,
education, medical[,] or other care . . . because of the faults or habits of the child’s
parent[.]” Section 32A-4-2(E)(2). Throughout the proceedings, Father was defending
against allegations of neglect and abandonment, not abuse. 	Once the petition was
amended, Father was not given the opportunity to defend against the new charge of

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abuse. 	We conclude that the court erred by relying on Rule 1-015 and by not
following the requirements of Section 32A-1-18.
{12} 	Our interpretation of Section 32A-1-18 is consistent with the guarantees of due
process. “[N]eglect and abuse proceedings must . . . be conducted in a manner that
affords the parents constitutional due process.” In re Pamela A.G., 2006-NMSC-019,
¶ 11, 139 N.M. 459, 134 P.3d 746. “Process is due when a proceeding could affect
or interfere with the relationship between a parent and a child.” State ex rel. Children,
Youth & Families Dep’t v. Browind C., 2007-NMCA-023, ¶ 20, 141 N.M. 166, 152
P.3d 153. 	Even though the early stages of neglect and abuse proceedings do not
involve the termination of parental rights, that due process requirement “begins with
the filing of a petition for neglect and abuse.” Pamela A.G., 2006-NMSC-019, ¶ 11
(internal quotation marks and citation omitted).
{13} 	Due process requires “timely notice reasonably calculated to inform the person
concerning the subject and issues involved in the proceeding; a reasonable opportunity
to refute or defend against a charge or accusation; [and] a reasonable opportunity to
confront and cross-examine adverse witnesses and present evidence on the charge or
accusation[.]” Id. ¶ 12 (internal quotation marks and citation omitted). To evaluate
the process owed to a parent in abuse and neglect proceedings, we utilize the
balancing test from Mathews v. Eldridge, 424 U.S. 319 (1976). 	See State ex rel.

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Children, Youth & Families Dep’t v. Mafin M., 2003-NMSC-015, ¶ 19, 133 N.M. 827,
70 P.3d 1266. 	We weigh three factors under the Mathews test: 	(1) the parent’s
interest, (2) the risk to the parent of an erroneous deprivation in light of the probable
value of additional or substitute procedures as safeguards, and (3) the government’s
interest. 	Browind C., 2007-NMCA-023, ¶ 31. 	“Parents’ interest in maintaining a
parental relationship with [their] children is a fundamental right that merits strong
protection.” 	Pamela A.G., 2006-NMSC-019, ¶ 13 (alteration in original) (internal
quotation marks and citation omitted). “The government’s interest in protecting the
welfare of children is equally significant.” Id. We thus focus on the second prong and
compare the risk to the parent of erroneous deprivation of rights with the potential
burden to the state associated with additional procedures.
{14} 	Here, the risk to Father of erroneously depriving him of his rights is high. As
we explained above, the procedure followed by the court prevented Father from
presenting a defense to the new charge of abuse. Father was not given adequate notice
of the new charge nor was he given the opportunity “to be heard at a meaningful time
and in a meaningful manner.” 	State ex rel. Children, Youth & Families Dep’t v.
Maria C., 2004-NMCA-083, ¶ 26, 136 N.M. 53, 94 P.3d 796 (internal quotation
marks and citation omitted). Father “did not have a fair opportunity to defend” against
the claim of abuse, nor was he allowed to “offer[] additional evidence on the new

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theory.” 	Bellet, 114 N.M. at 692, 845 P.2d at 786. 	Denial of notice and the
opportunity to be heard is especially prejudicial in light of the relationship between
the adjudicatory findings and any proceedings related to the termination of Father’s
parental rights. 	We agree with Father that he was “blind-sided” by the amended
petition “sprung on him” at the end of the proceedings.
{15} 	By 	contrast, 	the 	burden 	on 	the 	state 	to 	provide 	additional 	procedural
safeguards—i.e., “proceed[ing] to hear and determine the additional or other issues”
and allowing Father to mount a defense to the charge of abuse—is minor. The district
court spent parts of one afternoon and the next morning adjudicating the case against
Father. According to CYFD, all of the facts that supported the court’s findings were
readily discoverable before the hearing and the evidence supporting neglect was
equally relevant to a claim of abuse. Therefore, there was nothing to prevent CYFD
from moving to amend its petition before the hearing. 	And once the motion was
granted at the end of the hearing, the court could have extended the proceedings to
allow Father to present his defense to the added charge, or if time presented a
problem, the court could have adjudicated the neglect issue and set the abuse issue for
another day. None of these options place a significant burden on CYFD or the district
court.
{16} 	We also observe that whether Father was afforded due process is not dependent

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on whether he would have prevailed had he been given adequate notice; rather, Father
need only show “that there is a reasonable likelihood that the outcome might have
been different.” 	Maria C., 2004-NMCA-083, ¶ 37. Because Father was not aware
that he was facing allegations of abuse, he had not investigated or prepared a defense
in this regard. His evaluation of the evidence presented was in relation to the neglect
and abandonment issues, not to abuse. His strategy regarding objections might have
been different had he known that he needed to defend against claims of abuse.
Accordingly, we conclude that there is a reasonable likelihood that the outcome might
have been different had notice been given. 	Applying the Mathews test to the
circumstances of this case, we conclude that Father’s due process rights were violated
by the amendment procedure.
CONCLUSION
{17} 	For the foregoing reasons, we reverse the adjudication of child abuse against
Father. As we have explained, the adjudication as to neglect was not appealed and the
disposition of the case based on neglect was proper. We remand for any proceedings
the court may want to take with regard to the disposition now that the determination
as to abuse has been reversed.

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{18} 	IT IS SO ORDERED.
__________________________________
CELIA FOY CASTILLO, Chief Judge
WE CONCUR:
__________________________________
JONATHAN B. SUTIN, Judge
__________________________________
J. MILES HANISEE, Judge