August 31, 2020- CYFD v. Tia M., No. A-1-CA-38550

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
STATE OF NEW MEXICO ex rel. Filed 8/31/2020 11:04 AM
CHILDREN, YOUTH & FAMILIES f
DEPARTMENT, a z= ,
Mark Reynolds
Petitioner Appellee,
Vv. No. A-1-CA-38550
TIA M,,
Respondent: Appellant,
and.
IN THE MATTER OF ALAYNA H.,
HAVEN H., and GRIFFEN H.,
Children.
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY

Emilio J. Chavez, District Judge

Children, Y outh & Families Department

Rebecca J. Liggett, Chief Children’s Court Attomey
Santa Fe, NM

Kelly P. O’ Neill, Children’s Court Attomey
Albuquerque, NM

for Appellee

Jane B. Yohalem
Santa Fe, NM

2
Nancy L. Simmons	1
Albuquerque, NM	2
for Appellant	3
Terry L. Hull	4
Taos, NM	5
Guardian Ad Litem	6
MEMORANDUM OPINION	7
HANISEE, Chief Judge.	8
{1} 	Respondent (Mother) appeals from the district court’s adjudicatory judgment	9
and order finding abuse and neglect. In this Court’s notice of proposed disposition,	10
we proposed to summarily affirm. Mother filed a memorandum in opposition and	11
motion to amend the docketing statement (MIO), which we have duly considered.	12
For the reasons articulated below, we deny Mother’s motion to amend the docketing	13
statement and affirm the adjudication of abuse and neglect.	14
{2} 	In her MIO, Mother abandons her argument regarding the propriety of an in-	15
chambers interview with Children, continues to argue prejudice in the delay in filing	16
the adjudicatory judgment and order and dispositional order, and, pursuant to Rule	17
12-208(F) NMRA, moves to amend her docketing statement to raise a new argument	18
that “reversal is required because the [district] court’s findings of abuse and neglect	19
by Mother are inconsistent with New Mexico law and policy that directs that	20
[C]hildren should be taken into State custody only when absolutely necessary.”	21

3
[MIO 2-3] We first address the issue raised in Mother’s motion to amend, as Mother	1
has acknowledged that prejudice in the delay in filing the adjudicatory judgment and	2
order “will only be established if this Court reverses the adjudication.” [MIO 12]	3
{3} 	In order for this Court to grant a motion to amend the docketing statement, the	4
movant must establish good cause for our allowance of such amendment. See State	5
v. Moore, 1989-NMCA-073, ¶¶ 41-42, 109 N.M. 119, 782 P.2d 91, overruled on	6
other grounds by State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d	7
730; State v. Rael, 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193, 668 P.2d 309. The	8
essential requirements to show good cause for our allowance of an amendment to an	9
appellant’s docketing statement are that “(1) the motion be timely, (2) the new issue	10
sought to be raised was either (a) properly preserved below or (b) allowed to be	11
raised for the first time on appeal, and (3) the issues raised are viable.” Moore, 1989-	12
NMCA-073, ¶ 42.	13
{4} 	Mother 	seeks 	to 	raise 	an 	issue 	regarding 	the 	initial 	ex 	parte 	custody	14
determination, and says it was raised at the adjudicatory hearing as she argued that	15
a single act, rather than a course of conduct, was not sufficient to support removal	16
or a determination of abuse and/or neglect. It is not entirely clear whether Mother is	17
challenging the original custody determination—a determination that could have	18
been immediately appealed, but was not—or the reliance on those facts in support	19
of adjudication. However, in determining the viability of this issue, we review it as	20

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a challenge to the adjudicatory determination—because, if the facts are sufficient to	1
support a determination of abuse and neglect based on clear and convincing	2
evidence, then it will necessarily satisfy the requirement that the district court found	3
that there was probable cause to believe that the criteria in NMSA 1978, Section	4
32A-4-18(C) (2019) were met.	5
{5} 	We need not address Mother’s general policy argument, that one single	6
incident cannot form the basis of a custody or parental rights determination, because	7
it fails to address the particular facts of this case. While the district court found that	8
the barbeque in this case was “unusual” in that it “got out of control and it was a	9
situation that resulted in the abuse and neglect of [C]hildren,” it also explained that,	10
while unusual, the event was not isolated: “Although this was an unusual event, it	11
was not unusual for there to be issues in the home with drinking or related to	12
potential domestic violence.” [1 RP 226 ¶ 8] While we acknowledge that there	13
appears to have been conflicting testimony as to what exactly happened the evening	14
of the barbeque, the district court addressed this conflicting evidence. The district	15
court explained that the barbeque may have ultimately escalated based on, as Mother	16
claimed, a “misunderstanding.” [1 RP 225, ¶ 4] Nonetheless, it found that this was	17
not a case where the misunderstanding was so isolated or unusual that Mother was	18
not on notice of the risk to Children. Cf. State ex rel. Children, Youth & Families	19
Dep’t v. Michelle B., 2001-NMCA-071, ¶¶ 20-21, 130 N.M. 781, 32 P.3d 790	20

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(reversing adjudication of neglect based on a mother’s failure to discover or report	1
one incident of sexual assault where there was no evidence suggesting the mother	2
knew or should have known that her child was at risk with the assaulter and no	3
indication that the child was not properly cared for prior to the assault). Irrespective	4
of why the barbeque escalated, the district court considered the undisputed facts—	5
the level of parental inebriation, the discharge of a firearm, Children’s ignored	6
confusion and anxiety causing them to run for help, and the fact that this was not an	7
isolated incident involving these factors—sufficiently egregious to warrant an	8
adjudication of abuse and neglect. [1 RP 224-27]	9
{6} 	To the extent Mother continues to rely on her own alternate explanation that	10
the situation was a big misunderstanding, we will not reweigh the evidence on	11
appeal. See id. ¶ 12 (“It is for the finder of fact and not for the reviewing courts to	12
weigh conflicting evidence and decide where the truth lies.”). Viewing the evidence	13
in the light most favorable to the prevailing party, as we must, we conclude that the	14
district court could have properly reached an abiding conviction that Children were	15
without proper parental care and control necessary for their well-being and that	16
Mother knowingly, intelligently or negligently placed Children in a situation that	17
may endanger their life or health. See NMSA 1978, § 32A-4-2(B)(4) and (G)(2)	18
(defining “abused child” and “neglected child”) (2018).	19

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{7} 	Mother additionally claims that because the barbeque’s extreme escalation	1
was unusual, “the trauma of placing [C]hildren in state custody outweighed the risk	2
to [C]hildren of allowing them to remain at home.” [MIO 10] However, even if we	3
were to find that the evidence was insufficient to warrant an adjudication of abuse	4
and neglect, it would not result in an automatic return of custody to Mother. See	5
State ex rel. Children, Youth & Families Dep’t v. Benjamin O., 2007-NMCA-070,	6
¶ 35, 141 N.M. 692, 160 P.3d 601 (“We do not believe that an automatic return of a	7
child to his or her parent following a reversal of an adjudication of abuse or neglect	8
is necessarily in the child’s best interests[.]”); State ex rel. Children, Youth &	9
Families Dep’t v. C.H., 1997-NMCA-118, ¶¶ 10-12, 124 N.M. 244, 947 P.2d 1064	10
(affirming district court’s determination to continue custody with the department	11
following dismissal of abuse and neglect petition against parent until the court could	12
investigate and determine the proper placement of the children). While a goal of the	13
Abuse and Neglect Act is to preserve the family relationship, the Act explicitly	14
outlines a number of situations by which immediate removal from the home is	15
appropriate and contemplates that the preservation of the family relationship will be	16
best served in some cases through initial removal and later reunification. See § 32A-	17
4-18(C) (identifying situations upon which the district court should not return legal	18
custody to a parent or guardian of a child alleged to be abused or neglected); see,	19
e.g., In re Mahdjid B., 2015-NMSC-003, ¶ 19, 342 P.3d 698 (“[P]reserving the	20

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family relationship . . . remains the ultimate goal of [Abuse and Neglect Act]	1
proceedings until the [district] court finds that reunification is simply not possible.”	2
(emphasis added)). To the extent Mother now argues that reversal of the adjudication	3
of abuse or neglect is required because removal should not have occurred, Mother	4
has failed to provide any authority or evidence of record to demonstrate a nexus	5
between the initial custody determination and the district court’s later adjudication	6
of abuse and neglect in this case. Cf. In re Adoption of J.J.B., 1995-NMSC-026, ¶ 57,	7
119 N.M. 638, 894 P.2d 994 (“A finding that parental rights were improperly	8
terminated does not mechanically result in the award of custody to the biological	9
parents. The termination of parental rights and the determination of custody are	10
different issues and must be addressed separately.”); see also Headley v. Morgan	11
Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (declining to	12
entertain a cursory argument that included no explanation of the party’s argument	13
and no facts that would allow the Court to evaluate the claim).	14
{8} 	Finally, Mother has broadly asserted, without citation to authority, that this	15
case “should have been addressed by something other than an adjudication of abuse	16
and neglect and the placement of one child in congregate care and one in a foster	17
home.” [MIO 11] However, “[t]he mere assertions and arguments of counsel are not	18
evidence.” Chan v. Montoya, 2011-NMCA-072, ¶ 9, 150 N.M. 44, 256 P.3d 987	19
(internal quotation marks and citation omitted); see ITT Educ. Servs., Inc. v.	20

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Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969	1
(explaining that this court will not consider issues that are unsupported by authority);	2
cf. In re Adoption of Francisco A., 1993-NMCA-144, ¶ 20, 116 N.M. 708, 866 P.2d	3
1175 (“It is well established in New Mexico that parents do not have absolute rights	4
in their children; rather, parental rights are secondary to the best interests and welfare	5
of the children.”). Accordingly, Mother has not demonstrated error in the district	6
court’s adjudication of abuse and neglect. See Farmers, Inc. v. Dal Mach. &	7
Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 (“Appellant	8
must affirmatively demonstrate its assertion of error.”).	9
{9} 	Mother lastly asserts error in the district court’s failure to allow Mother to	10
voluntarily place the two youngest Children with her parents in Wisconsin. [MIO	11
11] To the extent Mother is challenging the district court’s failure to place Children	12
with her parents, Mother has failed to demonstrate error on this basis because the	13
record indicates that the district court was indeed considering placement with the	14
maternal grandparents, but that they were in the process of moving and could not be	15
evaluated for placement until the move was completed. [1 RP 209-11, 234]	16
Furthermore, to the extent that Mother suggests that a guardianship by her parents	17
pursuant to the Kinship Guardianship Act should have been considered before	18
placing Children in the Department’s custody pending a determination of abuse or	19
neglect, Mother has cited no authority which would require the district court to do	20

9
so. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where	1
a party cites no authority to support an argument, we may assume no such authority	2
exists.”); see also Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This	3
Court has no duty to review an argument that is not adequately developed.”); see	4
also Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“We	5
will not review unclear arguments, or guess at what a party’s arguments might be.”	6
(alteration, internal quotation marks, and citation omitted)). Moreover, we note that	7
nothing in Section 32A-4-18(C) or NMSA 1978, Section 32A-4-28(B)(2) (2005),	8
requires a court to consider guardianship as an alternative to initial removal pending	9
further proceedings or to termination, which has not occurred in this case.	10
{10} 	Mother cites to no authority and presents no new facts or arguments in her	11
MIO that persuade this Court that our proposed summary disposition was incorrect.	12
See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our	13
courts have repeatedly held that, in summary calendar cases, the burden is on the	14
party opposing the proposed disposition to clearly point out errors in fact or law.”);	15
State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating	16
that a party responding to a summary calendar notice must come forward and	17
specifically point out errors of law and fact, and the repetition of earlier arguments	18
does not fulfill this requirement), superseded by statute on other grounds as stated	19
in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. To the extent Mother	20

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maintains that the district court’s delay in entering its adjudicatory orders delayed	1
her ability to challenge the original custody determination, the fact that Mother had	2
an immediate right of appeal from the custody determination that she did not exercise	3
undermines her argument. See § 32A-4-18(I) (allowing immediate appeal from	4
custody determination). Moreover, as we have not reversed the adjudication, Mother	5
has acknowledged that she has not established prejudice in the delay. [MIO 12]	6
Accordingly, Mother’s motion to amend and policy argument has failed to cite any	7
authority or explain why the district court’s initial custody determination and later	8
adjudication of abuse and neglect are erroneous as a matter of law. We therefore	9
consider Mother’s issue that the district court misconstrued the Abuse and Neglect	10
Act non-viable, and we deny the motion to amend. See Moore, 1989-NMCA-073,	11
¶¶ 42-43.	12
{11} 	Accordingly, for the reasons stated in our notice of proposed disposition and	13
herein, we affirm.	14
{12} 	IT IS SO ORDERED.	15
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_________________________________	17
J. MILES HANISEE, Chief Judge	18

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WE CONCUR:
Chile 4. Vargar
JULIE J. VARGAS, Judge
2 3 4 5 DeLA2
JENNIFER L. ATTREP, Judge
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