February 02, 2009 – State of New Mexico ex rel. Children, Youth and Families Department v. John R., Nos. 27,880 and 27,985

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: February 2, 2009
NO. 27,880, consolidated with NO. 27,985
STATE OF NEW MEXICO, ex rel. CHILDREN,
YOUTH AND FAMILIES DEPARTMENT,
Petitioner-Appellee,
v.
JOHN R.,
Respondent-Appellant,
and
BERLINDA R.,
Respondent,
and
In the Matter of SABRINA R.,
Child.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Marie Baca, District Judge
Simon Romo, Chief Children’s Court Attorney
Rebecca J. Liggett, Children’s Court Attorney
Santa Fe, NM
for Appellee

Caren I. Friedman
Santa Fe, NM
for Appellant John R.
Scott M. Davidson
Albuquerque, NM
for Appellant Berlinda R.
Pat Anderson
Bosque Farms, NM
Guardian ad Litem

OPINION
BUSTAMANTE, Judge.
{1} 	John R. (Father) and Berlinda R. (Mother) (collectively Parents) each appeal
from the judgment of the district court terminating their parental rights to their
daughter, Sabrina R. (Child). Parents’ rights were terminated based on a finding that
Child had been subject to abuse and neglect, the causes of which were unlikely to
change in the foreseeable future.
{2} 	On appeal, Father asserts that the district court committed reversible error by
failing to appoint separate counsel for Child when she reached age fourteen during the
pendency of the termination proceeding. 	Mother’s separate appeal asserts that (1)
CYFD failed to make reasonable efforts to assist her in alleviating the causes and
conditions of neglect, (2) CYFD failed to prove that Mother was unable to alleviate
the causes and conditions of neglect, and (3) the termination of parental rights cannot
rest only on the best interests of Child.
{3} 	We consolidate Parents’ appeals and conclude that Father has standing to assert
the right-to-counsel issue and that the district court committed reversible error by not
appointing separate counsel for Child when she reached the age of fourteen.
Furthermore, we reaffirm our adherence to our statutory mandate to give primary
consideration to the best interests of the child in a proceeding to terminate parental

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rights. Having found reversible error, we do not address any of Parents’ evidentiary
arguments.
BACKGROUND
{4} 	This termination of parental rights (TPR) case deals with the alleged inability
of two developmentally disabled persons to properly care for their physically and
mentally disabled child. CYFD took Child into custody on October 14, 2005, based
on a report that Child was being physically abused/neglected by Parents. The basis
for the abuse/neglect allegations was that Child had significant medical needs not
being met at home.
{5} 	Child was twelve years of age when she was taken into CYFD’s care and was
suffering from complex medical problems and interrelated psycho-social issues.
Specifically, Child was suffering from hypothyroidism, obtrusive sleep apnea,
enuresis, encopresis, mental retardation, ADHD, a necrotic hip, and morbid obesity.
Child was virtually immobile because her weight made it difficult for her to walk,
even with a walker, and her wheelchair was broken. Child was also incontinent, her
Parents were not using Child’s C-Pap machine to treat her sleep apnea, and they were
not regularly administering her thyroid medication. Child’s untreated health problems
placed her at risk for brain damage or mortality unless drastic measures were taken.

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{6} 	Based on the foregoing facts, the district court found that Child was neglected
and that Child’s safety and welfare could not be ensured if she were returned to
Parents. 	Custody of Child was ordered to remain with CYFD for up to two years
while Parents continued with an ongoing treatment plan aimed at reunifying the
family. As part of the treatment plan, Parents were ordered to participate in parenting
classes, relationship therapy, weekly semi-supervised visits with Child, nutritional
training, and in all of Child’s medical and therapeutic appointments.
{7} 	As of March 2006, Parents were compliant with their treatment plan and made
“great progress” toward learning new parenting and nutritional skills. Child was also
progressing under her treatment plan, having lost 120 pounds while in foster care.
She was continent, receiving proper medical care, and able to walk without using a
walker.
{8} 	As a result of Parents’ compliance and cooperation, in May 2006 CYFD
arranged for Parents to take Child for a trial home visit. Upon returning home, Child’s
medical condition quickly deteriorated. Child began to gain weight at a rate of two
to three pounds per week, her C-Pap machine was not being used to treat her sleep
apnea, and she again became incontinent. 	She also missed health appointments,
stopped taking her thyroid medication, began having temper tantrums, and refused to

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exercise or follow her diet plan.
{9} 	Several factors contributed to Child’s regression and diminished health and
well-being. While Child was in foster care, Parents’ relationship had deteriorated and
they moved to separate residences. Mother went to live with a new female partner
whom Child disliked, and Father moved in with his brother. As a result, Child was
going back and forth between Parents. Incidents of domestic violence also took place
between Mother, Father, and Child’s older brother. 	These conditions led to a
recommendation that Child be put back in foster care. Child was once again removed
from Parents in September 2006 and placed back in treatment foster care.
{10} 	Upon returning to foster care, Child once again began making strong progress.
She began losing weight again, was more continent, and was getting proper nutrition
and medical treatment. 	At first, CYFD’s permanency plan remained to continue
working toward reunification of the family while keeping Child in temporary foster
care. But by January 2007, CYFD changed its recommendation from reunification to
“TPR/Adoption,” citing Parents’ continued inability to appropriately care for Child’s
physical, medical, and emotional needs.
{11} 	A TPR motion was filed in January 2007, a two day TPR hearing took place
during June, and a final order terminating parental rights was filed on July 2, 2007.

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In March, approximately three months before the TPR hearing, Child turned fourteen
years old. 	During the proceeding, Father and Mother were each represented by
separate counsel, and Child was represented by a guardian ad litem (GAL), but at no
point did she have her own attorney.
{12} 	At the commencement of the second day of the TPR hearing, Child’s GAL
pointed out that Child had the right to representation by separate counsel upon
reaching age fourteen. The GAL summarized the relevant statute as follows: “[w]hen
a child reaches [fourteen] years of age, a child’s guardian ad litem shall continue as
the child’s attorney, provided that the [c]ourt shall appoint a different attorney for the
child if the child requests a different attorney or the guardian ad litem requests to be
removed.” (internal quotation marks omitted). The GAL then informed the court that
Child was already fourteen years old and that she didn’t feel that she could do the job
of both GAL and counsel, stating “I don’t feel I can be her attorney, due to her . . .
mental capacity and . . . all my past work as the GAL.”
{13} 	Alerted to the potential issue posed by Child’s having reached fourteen before
the hearing, the district court decided to meet with Child before making any
determination as to what should be done. Upon meeting with Child and her GAL, the
district court recognized Child’s position as desiring reunification with Parents and

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also recognized that such a position was inconsistent with the recommendation of the
GAL. But the district court noted Child’s “extreme immaturity and developmental
delays,” explaining its concern that Child’s maturity level was not that of an average
fourteen-year-old, and that the TPR motion was filed before Child’s fourteenth
birthday. 	The district court 	reasoned that it would be inappropriate to appoint
separate counsel because the GAL had been on the case since its inception, and it
would be difficult for anyone else to come up to speed in the case.
{14} 	Ultimately, the district court decided against appointing separate counsel for
Child. 	The court’s finding on the issue was as follows: 	“The [c]ourt has also
considered the child’s expressed opinion on reunification, notes the fact that the child
turned fourteen during the pendency of this case and, notwithstanding those facts,
finds that it is not appropriate to appoint an attorney for the child.”
DISCUSSION
Father’s Standing
{15} 	As a preliminary matter, we address CYFD’s assertion that Father lacks
standing to argue the right-to-counsel issue. Whether a party has standing to sue is
a question of law, which we review de novo. 	See Forest Guardians v. Powell,
2001-NMCA-028, ¶ 5, 130 N.M. 368, 24 P.3d 803.

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{16} 	CYFD argues that because the right to counsel does not belong to Father, he has
suffered no injury in fact, and therefore lacks standing to argue the right-to-counsel
issue. 	In support of its assertion, CYFD cites Rio Grande Kennel Club v. City of
Albuquerque, 2008-NMCA-093, 144 N.M. 636, 190 P.3d 1131, for the standing
requirement of “an injury in fact.”
{17} 	CYFD is correct in its assertion that the right to counsel at issue here belongs
to Child and not to Father. However, we do not agree with CYFD’s conclusion that
Father has not been injured in fact. An “injury in fact” is “an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical. Forest Guardians, 2001-NMCA-028, ¶ 24 (internal
quotation marks and citations omitted). A litigant need not suffer the actual effects
of the challenged action, but need only show that there was a real risk of injury. Rio
Grande Kennel Club, 2008-NMCA-093, ¶ 11.
{18} 	Here, Father has a sufficient injury and a sufficiently concrete interest in the
outcome of this matter to satisfy the injury in fact requirement. Father has a legally
protected interest in his rights as a parent. 	See State ex rel. Children, Youth &
Families Dep’t v. Maria C., 2004-NMCA-083, ¶ 24, 136 N.M. 53, 94 P.3d 796 (“A
parent’s fundamental liberty interest in the care, custody, and management of their

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children is well established.”). 	Termination of this right presents an actual and
concrete invasion of that protected interest. For purposes of standing, we need not
determine whether failure to appoint counsel for Child was the actual cause of this
injury. It is sufficient that it presented a “real risk of injury,” in that it could have
affected the course of the trial and whether Father’s rights as a parent would
ultimately be terminated. See In re Christina M., 908 A.2d 1073, 1080 (Conn. 2006)
(recognizing that the inadequate representation of a child in a TPR case could affect
the outcome, and thus a parent has a claim of injury sufficient to confer standing).
Failure to Appoint Separate Counsel at Age Fourteen
{19} 	Father argues that the district court erred in failing to appoint separate counsel
for Child when she reached fourteen years of age during the pendency of the TPR
proceeding. He argues that when Child turned fourteen, one of her “basic rights” was
to have a different attorney appointed to represent her pursuant to NMSA 1978,
Section 32A-4-10(E) (2005), and that failure to so appoint was reversible error. We
hold that failure to appoint counsel for Child is reversible error because it was
prejudicial to Child and violated the Children’s Code.
{20} 	The issue of whether the district court erred in failing to appoint separate
counsel for Child when she reached fourteen is a question of law that we review de

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novo. State ex rel. Children, Youth & Families Dep’t v. Brandy S., 2007-NMCA-135,
¶ 17, 142 N.M. 705, 168 P.3d 1129. “To warrant reversal, error must be prejudicial.”
McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC-022, ¶ 21, 143 N.M. 740, 182
P.3d 121.
{21} 	The relevant provisions of the Children’s Code provide different rights to
representation based on whether a child is younger or older than fourteen. See § 32A-
4-10(C), (E). First, if at the inception of an abuse and neglect proceeding a child is
under fourteen years of age, the court is required to appoint a GAL for the child.
Section 32A-4-10(C). If, on the other hand, the child is fourteen years of age or older,
the court is required to appoint an attorney for the child. Id. With respect to each, the
court is required to ensure that the GAL “zealously represents the child’s best
interest[s,] and that the . . . attorney zealously represents the child.” Section 32A-4-
10(F). 	A child’s attorney also has a duty to provide “the same manner of legal
representation and be bound by the same duties to the child as is due an adult client,
in accordance with the rules of professional conduct.” NMSA 1978, § 32A-1-7.1(A)
(2005).
{22} 	Here, Child was thirteen when the TPR motion was filed, but turned fourteen
before any TPR hearing was held. 	The Children’s Code also addresses these

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circumstances where a proceeding commences before a child reaches fourteen and
continues beyond the child’s fourteenth birthday. See § 32A-4-10(E). The relevant
section of the Children’s Code is as follows:
When a child reaches fourteen years of age, the child’s guardian
ad litem shall continue as the child’s attorney; provided that the court
shall appoint a different attorney for the child if:
(1) 	the child requests a different attorney;
(2) 	the guardian ad litem requests to be removed; or
(3) 	the court determines that the appointment of a different
attorney is appropriate.
Id. 	Pursuant to the Uniform Statute and Rule Construction Act, we interpret this
section as imposing a requirement that the court must appoint separate counsel for a
child if any one of the three conditions is satisfied. See NMSA 1978, § 12-2A-4(A)
(1997) (defining the word “shall” as expressing a duty, obligation, or requirement).
{23} 	The district court judge recognized the requirement of Section 32A-4-10(E), but
determined that appointment of an attorney for Child was inappropriate under the
circumstances of this case. Pursuant to the statute, a district court does not have such
discretion (1) if the child requests a different attorney, or (2) if the child’s GAL
requests to be removed. Here, Child’s GAL effectively requested removal when she
stated that she could not act as Child’s attorney. 	Therefore, given the mandatory

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nature of the statute, the trial judge lacked the discretion not to appoint a different
attorney for Child. See § 32A-4-10(E)(3).
{24} 	Even if the GAL’s statement were to be interpreted as something less than a
request for removal, it was at least sufficient notice that Child was not being afforded
her full rights under the Children’s Code—specifically, Child’s right to zealous
representation in her own right. Alerted to the potential that Child’s interests were not
fully protected, the district court’s obligation was to remedy the deficiency by
appointing separate counsel for Child. Absent separate counsel, Child’s position was
not fully developed, and Child was therefore prejudiced by not being afforded her full
right to representation.
{25} 	To the extent, if any, that the district court had discretion not to appoint separate
counsel for Child in this case, consideration of Child’s mental age should not have
been part of its analysis. 	Although we are mindful of the fact that Child may not
function at the mental age of fourteen, it does not affect the requirements of the
statute. Longstanding precedent in interpreting the Children’s Code is that references
to age are references to years of age, not mental age. State v. Doe, 97 N.M. 598, 601,
642 P.2d 201, 204 (Ct. App. 1982). Therefore, Child’s mental age should not have
been a factor in determining whether to appoint a separate attorney.

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{26} 	Separate counsel should have been appointed for Child, even if the GAL
continued to advocate for Child’s best interest. Some circumstances may require the
services of both an attorney and a GAL and, absent a conflict, a GAL may serve a dual
role fulfilling the obligations of both. See State ex rel. Children, Youth & Families
Dep’t v. George F., 1998-NMCA-119, ¶ 11, 125 N.M. 597, 964 P.2d 158 (observing
that a GAL can serve two distinct roles as an advocate for a child’s best interests and
an advocate for a child’s position). This may be the case, for example, when a child’s
position is exactly aligned with her best interests. 	However, it is clear that here,
Child’s GAL could not serve such a dual role because Child herself desired
reunification with Parents, while the GAL deemed TPR to be in Child’s best interests.
Therefore, separate counsel should have been appointed even if the district court
determined that Child’s GAL should also remain a part of the proceeding because of
her background and knowledge of the case.
Best-Interests-of-the-Child Standard
{27} 	Mother argues that it was improper to decide the TPR hearing based on Child’s
best interests, and that her fundamental rights as a parent should have also been
considered. The Children’s Code provides that, in proceedings to terminate parental
rights, the court must “give primary consideration to the physical, mental and

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emotional welfare and needs of the child, including the likelihood of the child being
adopted if parental rights are terminated.” 	NMSA 1978, § 32A-4-28(A) (2005).
Mother’s argument is unpersuasive. 	First, as previously noted, a parent has a
fundamental interest in the care, custody, and control of his or her children. 	See
Maria C., 2004-NMCA-083, ¶ 24. But “[i]t is well established . . . that parents do not
have absolute rights in their children; rather, parental rights are secondary to the best
interests and welfare of the children.” In re Adoption of Francisco A., 116 N.M. 708,
714, 866 P.2d 1175, 1181 (Ct. App. 1993). Aside from expressing disagreement with
this standard, Mother presents no argument for setting it aside, and we are
unconvinced that we should do so. Second, Mother fails to recognize that due process
of law provides safeguards against erroneous deprivation of parental rights. 	Here,
Mother does not allege that she was not afforded due process and, even if she had, we
find nothing in the record to support such an argument. 	Therefore, contrary to
Mother’s assertion, her fundamental rights were given proper consideration in the
TPR proceeding.
CONCLUSION
{28} 	For the foregoing reasons, we reverse the district court’s termination of Parents’
parental rights to Child and remand for further proceedings consistent with this

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opinion.
29} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
CYNTHIA A. FRY, Chief Judge
MICHAEL E. VIGIL, Judge