April 6, 2020- CYFD v. Jennifer G., No. A-1-CA-38491

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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-38491	6
JENNIFER G.	7
Respondent-Appellant,	8
IN THE MATTER OF LINDSEY G.	9
and MADISON G.,	10
Children.	11
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY	12
Grace B. Duran, District Judge	13
Children, Youth & Families Department	14
Rebecca J. Liggett, Chief Children’s Court Attorney	15
Santa Fe, NM	16
Kelly P. O’Neill, Children’s Court Attorney	17
Albuquerque, NM	18
for Appellee	19
The Law Offices of Jane B. Yohalem	20
Jane B. Yohalem	21
Santa Fe, NM	22
for Appellant	23
Jennifer L. Munson	24
Las Cruces, NM	25
Guardian Ad Litem	26
Court of Appeals of New Mexico
Filed 4/6/2020 9:28 AM

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MEMORANDUM OPINION	1
VANZI, Judge.	2
{1} 	Mother appeals from the termination of her parental rights (TPR). We issued	3
a notice of proposed summary disposition proposing to affirm. Mother filed a	4
memorandum in opposition (MIO), which we have duly considered. Remaining	5
unpersuaded, we affirm.	6
{2} 	In Mother’s MIO, she argues that the district court relied on stale evidence to	7
determine that Mother would not likely be able to remedy the causes and conditions	8
that brought Child into custody in the foreseeable future. [MIO 3] New Mexico law	9
provides that evidence relied upon by the district court in terminating parental rights	10
may not be sufficiently outdated as to render it stale. See State ex rel. Dep’t of Human	11
Servs. v. Nat. Mother, 1981-NMCA-103, ¶ 9, 96 N.M. 677, 634 P.2d 699 (stating	12
that the information used to evaluate the continuing conditions and causes of neglect	13
was stale and thus not useful in the proceedings to terminate the mother’s parental	14
rights).	15
{3} 	In support of her argument, Mother states that testimony was presented	16
regarding efforts Mother made to engage in her treatment plan during the three	17
months prior to the TPR hearing. [MIO 6-7] Importantly, these efforts by Mother	18
were made only after the filing of a TPR motion by the Children, Youth and Families	19
Department (the Department), in the three months immediately prior to the TPR	20

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hearing, while mother was incarcerated for violating probation. [MIO 6-7] Mother	1
relies on State ex rel. Children, Youth and Families Department v. Hector C., 2008-	2
NMCA-079, ¶ 15-16, 144 N.M. 222, 185 P.3d 1072, to argue that evidence of recent	3
compliance renders previous evidence stale for TPR purposes. [MIO 9] However,	4
Hector C. involved a unique circumstance where “[the f]ather’s incarceration played	5
an overwhelming and singular role in the termination proceedings.” Id. ¶ 21. That	6
does not appear to be the case here, where Mother was not incarcerated for the	7
majority of the proceedings below and nonetheless disappeared from Child’s life and	8
failed to meaningfully engage in her treatment plan for over a year. [MIO 6-7; see	9
also 2 RP 293]	10
{4} 	Moreover, to the extent the district court considered this evidence of partial	11
compliance—for a limited time and in a controlled environment—and weighed it	12
against the approximate year preceding Mother’s incarceration where it appears that	13
Mother failed to engage in or complete her treatment plan [MIO 6-7; see also 2 RP	14
293], this falls within the district court’s role as fact-finder to weigh the evidence	15
presented, and we will not re-weigh the evidence on appeal. See State ex rel.	16
Children, Youth & Families Dep’t v. Amanda H., 2007-NMCA-029, ¶ 19, 141 N.M.	17
299, 154 P.3d 674 (“We employ a narrow standard of review and do not re[]weigh	18
the evidence.”).	19

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{5} 	For these reasons and for those outlined in our notice of proposed disposition,	1
we conclude that the district court did not err in concluding that the causes and	2
conditions that brought Child into custody were unlikely to change in the foreseeable	3
future. Having determined that termination of Mother’s parental rights was proper	4
on this basis, we need not consider whether termination would also have been proper	5
on the alternative basis of presumptive abandonment. Cf. State v. Leon, 2013-	6
NMCA-011, ¶ 37, 292 P.3d 493 (stating that sufficient evidence to support a single	7
probation violation supports affirmance of a district court’s revocation of probation).	8
{6} 	Finally, Mother argued in her docketing statement that the district court’s	9
determination that the parent-child bond had disintegrated was not supported by	10
sufficient evidence. [Amd. DS 4] In her memorandum in opposition, Mother	11
continues to argue that there was insufficient evidence of disintegration of the	12
parent-child bond, and thus the district court should have considered a less drastic	13
alternative to termination of her parental rights, namely the establishment of a	14
permanent guardianship between Child and her aunt. [MIO 13-17] However, Mother	15
has pointed to nothing in the statute requiring the district court to consider	16
guardianship before terminating parental rights. Indeed, nothing in NMSA 1978,	17
Section 32A-4-28(B)(2) (2005) requires a court to consider guardianship as an	18
alternative to termination. To the extent Mother argues otherwise, we note that our	19
decision is consistent with prior decisions of this Court, and that this Court has	20

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recently rejected a similar argument. See State ex rel. Children, Youth & Families	1
Dep’t v. Amie W., A-1-CA-37840, memo op. ¶¶ 28-30 (N.M. Ct. App. Dec. 18, 2019)	2
(non-precedential). Accordingly, we conclude that the district court was not required	3
to find that permanent guardianship was not in Child’s best interests before	4
terminating Mother’s parental rights.	5
{7} 	For the reasons stated in our notice of proposed disposition and herein, we	6
affirm the district court’s order terminating Mother’s parental rights.	7
{8} 	IT IS SO ORDERED.	8
______________________________	9
LINDA M. VANZI, Judge	10
WE CONCUR:	11
______________________________	12
JULIE J. VARGAS, Judge	13
______________________________	14
KRISTINA BOGARDUS, Judge	15