A-1-CA-36890 | Omnilex

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Court of Appeals of New Mexico
Filed 6/25/2019 10:21 AM

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

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STATE OF NEW MEXICO ex rel.

CHILDREN, YOUTH & FAMILIES
DEPARTMENT

SJE TREN BUYIN

Petitioner-Appellee,

v. No. A-1-CA-36890

KRYSTAL R.,

and

JOEL and KIM WEBER,

Intervenors,

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APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY

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Steven Blankinship, District Judge

Children, Youth & Families Department
Rebecca J. Liggett, Chief Children’s Court Attorney

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Santa Fe, NM
Kelly P. O’Neill, Children’s Court Attorney
Albuquerque, NM

for Appellee

Law Offices of Nancy L. Simmons, P.C.
Nancy L. Simmons

Albuquerque, NM

for Appellant

Lori Gibson, P.C.

Lori G. Willard

Ruidoso, NM

for Intervenors

Erinna M. Atkins
Alamogordo, NM

Guardian Ad Litem

DECISION
ATTREP, Judge.
{1} Krystal R. (Mother) appeals the district court’s termination of her parental
rights to Jude R. (Child). For the reasons that follow, we affirm.
BACKGROUND
23 Child is a medically fragile child, suffering from several conditions including
hydrocephalus, requiring placement of a shunt in his head and insertion of a feeding
tube at birth, Down syndrome, and cerebral palsy. As a result, Child has vision

problems, mobility issues requiring leg braces, difficulty verbalizing and

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difficulties. These conditions require Child to be cared for twenty-four hours a day

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and to attend numerous doctors’ appointments across the state in order to properly
manage his health.
3} OnJune 27, 2013, the New Mexico Children, Youth and Families Department
(CYFD) took custody of Child, seven months old at the time, after receiving two
separate allegations that Child was starving. The abuse and neglect petition alleged
that Mother had removed Child’s feeding tube against medical advice and had
refused to allow medical professionals into her home to provide necessary care for
Child. The petition further alleged that Mother had failed to bring Child in for weekly
check-ups, which was problematic because Child was diagnosed with failure to
thrive and weighed under ten pounds when he should have weighed twice that.
4; | Mother pleaded no contest to the charge of abuse and neglect, as defined by
NMSA 1978, Sections 32A-4-2(B)(1), (E)(2) (2009, amended 2018) (re-codified at
NMSA 1978, Section 32A-4-2(G)(2) (2018), of the Abuse and Neglect Act, NMSA
978, §§ 32A-4-I to -35 (1993, as amended through 2019). The district court found
that Mother “has unresolved parenting issues, as well as the possibility of
undiagnosed mental health issues, and lacks the parenting skills necessary to safely
parent [Chiid] and meet his medicai needs.” The district court adopted a treatment
plan requiring Mother to, among other things, “participate in a psychological

[evaluation] and follow recommendations.” Given Child’s medical needs, the

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Child’s medical, dental, and developmental appointments and be able to discuss
issues and concerns with medical staff and CYFD personnel. After being taken into
CYFD custody, Child was placed with foster parents, Joel and Kim Weber, and
Mother was granted visitation with Child at the discretion of CYFD.

6s} In February 2017, after the case had been pending nearly four years, the
district court denied CYFD’s request to change the permanency plan from adoption
to reunification, and CYFD subsequently requested a hearing on its motion to
terminate parental rights (TPR). The two-day TPR hearing was held in November
2017. Mother was present as well as Child’s foster parents. Relevant testimony from
the TPR hearing is summarized below.

{6} | The CYFD permanency planning worker (PPW), Gina Vigil, testified first.
She served as the PPW for the two years leading up to the TPR hearing. Despite the
permanency plan remaining adoption, Ms. Vigil continued reunification efforts up
until the TPR hearing. Ms. Vigil described the various requirements of Mother’s
treatment plan. Although Mother was compliant with several requirements, she was
not in compliance with the most critical aspect of her plan—i.e., attending ninety-
five percent of Chiid’s medical appointments and engaging with Child in
developmental therapies at the New Mexico School for the Blind and Visually

Impaired (NMSBVI). Specifically, Ms. Vigil testified that Mother failed to attend

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date of the TPR hearing, though she had been provided notice of all appointments.
And Mother failed to participate in Child’s feeding therapy, provided as part of his
speech therapy at NMSBVI, which was important in ensuring Child ate. Mother also
was non-compliant with the requirement that she follow the recommendations made
in a psychological evaluation. Mother was diagnosed with chronic anxiety and an
adjustment disorder in May 2016, and the diagnosing doctor recommended that
Mother engage in psychotherapy, but Mother refused to do so.

3 Ms. Vigil further testified that Mother had recently regressed in her
participation with CYFD and seemed resistant to sharing information, which was
concerning given Child’s medical frailty. Ms. Vigil also discussed safety concerns
she had with Grandmother providing care for Child. Ms. Vigil testified that
Grandmother lives in Mother’s home, and that Mother identified Grandmother as
the main caregiver for Child when Mother is at work, a plan with which CYFD did
not agree. Grandmother herseif has an in-home care provider for an unknown reason,
has refused to be evaluated by CYFD to ensure her fitness to care for Child, and has

engaged in behavior toward foster parents that resulted in the issuance of a

7) restraining order against her.

833 CYFD called Dr. Marc Caplan as an expert at the TPR hearing. Although he

did not evaluate anyone in relation to the case, he gave generalized testimony about

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transitioning such a child away from his primary attachment figures could result in
significant regressive behaviors. The Webers had previously been identified as
Child’s primary attachment figures.

993 Jennifer Lara, Child’s teacher at NMSBVI, testified next. Ms. Lara testified
that Child requires one-on-one attention in class due to his various conditions.
Although Mother had been to the school three times in the late fall to observe Child
in the classroom and at his orthopedic therapy, she did not come to the school in
August or September; nor had Mother ever attended any school functions, such as
field trips or talent shows. Importantly, during the 2017-2018 school year, Mother
had not contacted the school to learn about any therapies that she should be
implementing in her home to assist with Child's development.

{10} Dolores Lamb, a senior PPW at CYFD, testified about two visits she made to
Mother’s home in August and October 2017 with Ms. Vigil. Ms. Lamb recalled
Mother was unabie to answer any questions regarding Child’s food preferences,
which was concerning given Child’s difficulties with feeding and eating. At these
visits, Ms. Lamb noted that Mother was oppositional towards her and Ms. Vigil.
a1} Next, CYFD calied Joel Weber, Child’s foster father, to testify. Mr. Weber
explained when Child came into his home, his head was locked to one side, his eyes
were fixed, his arms were fixed to his chest, and he was unable to cry or make any

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the Weber home. He explained that Child requires around-the-clock care and cannot
stand or do anything else on his own. Mr. Weber is primarily responsible for taking
Child to all his medical appointments and explained Child’s medical appointment
schedule, which totaled eight so far in 2017. Of those eight appointments, Mother
only attended the two dental appointments. Mr. Weber does not believe that Mother
understands Child’s needs, nor does he believe Child would be safe in Mother’s
home. Finally, Mr. Weber and his wife Kim Weber both testified that they would
like to adopt Child.

12} Kristen Huddleston, a medical assistant at Pediatrics of Alamogordo, testified
next. Child has been a patient of hers since his birth. Over the years, Ms. Huddleston
has seen Mother at various appointments, but believes Mother does not understand
Child’s medical needs and is concerned Child would not receive necessary medical
care if he were returned to Mother.

13} Patti Grier testified on behalf of Mother. Ms. Grier is the counseling director
at Children in Need of Services (CHINS). Ms. Grier provides mental health therapy

to children and families. Ms. Grier was accepted as an expert witness in the area of

7\ infant mental health at the TPR hearing. CYFD referred Mother and Child for

services at CHINS in 2013, and Ms. Grier provided mental health services to Mother

and Child since the referral. Ms. Grier focused on providing parenting guidance and

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and bonding between Mother and Child. Mother and Child completed therapy with
Ms. Grier in 2016, but Ms. Grier continued to see them occasionally. According to
Ms. Grier, Mother has owned up to the mistakes she made that brought Child into
the system and has a really good understanding of Child’s disabilities. Ms. Grier
believes that Mother does not face any more challenges than any other parent taking
care of a high-needs child. Ms. Grier was unaware that, in the nine months leading
up to the TPR hearing, Mother had missed several of Child’s medical appointments.
Ms. Grier never observed Mother at any doctors’ appointments and did not know
about Mother’s ability to communicate with doctors.

4143 Mother testified on her own behalf. Mother testified to the circumstances that
brought Child into care, stating she realizes now that removing Child’s feeding tube
was not the right thing to do. Mother testified that she was not compliant with the
treatment plan for a period time at the beginning of the case. Mother is on probation
for felony child abuse charges stemming from the circumstances that brought child
into CYFD custody and is compliant with probation. Mother currently lives in a
rental home with Grandmother and her other son, who was seven years old at the

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time of the TPR hearing. Mother recently changed jobs to be more available for
Child and now works at a fast food restaurant thirty-two to forty-two hours per week.

Mother had not informed CYFD about her change in employment.

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15} Regarding her treatment plan, Mother testified that she completed therapy
sometime in 2016, and she believed further therapy was only required once Child
was brought back into her home. With respect to Child’s medical appointments,
Mother testified that she could not attend some appointments because she either
could not get off work or did not have enough gas money. Mother later admitted that
she spends roughly one hundred dollars a month on cigarettes and that she could
“probably” use that money to get to Child’s appointments. When asked, Mother was
unable to name several of Child’s medical providers or his Molina Healthcare
contact.

16} After the TPR hearing, the district court, in its written order, stated that there
was clear and convincing evidence that Child was abused and neglected based on
Mother’s no-contest plea. Based on the evidence presented, the district concluded
that CYFD had met its burden to “demonstrate[] that the causes of neglect or abuse
were unlikely to change in the foreseeabie future” and terminated Mother’s parental
rights to Child. This appeal followed.

DISCUSSION

17}, Before a district court terminates a parent’s rights with respect to a neglected
or abused child, CYFD must show by clear and convincing evidence that “the

conditions and causes of the neglect and abuse are unlikely to change in the

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to assist the parent in adjusting the conditions that render the parent unable to
properly care for the child.” Section 32A-4-28(B)(2); see also State ex rel. Children,
Youth & Families Dep’t v. Vanessa C., 2000-NMCA-025, § 24, 128 N.M. 701, 997
P.2d 833 (stating that the burden of proof for termination of parental rights is clear
and convincing evidence). “Clear and convincing evidence is defined as 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 y. Lance K., 2009-
NMCA-054, ¢ 16, 146 N.M. 286, 209 P.3d 778 (alteration, internal quotation marks,
and citation omitted). “We will uphold the district court’s judgment if, viewing the
evidence in the light most favorable to the judgment, a fact finder could properly
determine that the clear and convincing standard was met.” State ex rel. Children,
Youth & Families Dep’t v. Hector C., 2008-NMCA-079, ¥ 11, 144 N.M. 222, 185
P.3d 1072 (internal quotation marks and citation omitted).

418} Mother does not contend that CYFD failed to make reasonable efforts to assist
her, but instead argues that CYFD “failed to show that Mother had not ameliorated
the causes and conditions of neglect, and would not do so in the foreseeable future.”
While Mother asserts that she “challenges” a number of factual findings, she fails to
explain why the identified findings are not supported by substantial evidence, and

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4 29, 147 N.M. 761, 228 P.3d 1181 (“[W]e do not review unclear or undeveloped
arguments [that] require us to guess at what [a party’s] arguments might be.”);
Murken v. Solv-Ex Corp., 2005-NMCA-137, ¢ 14, 138 NM. 653, 124 P.3d 1192
(“[W]e decline to review . . . arguments to the extent that we would have to comb
the record to do so.”). We therefore accept the district court’s factual findings and
turn to Mother’s other arguments as to why the district court erred. See Rule 12-
318(A)(4) NMRA (stating that a party’s argument “shall set forth a specific attack
on any finding, or the finding shall be deemed conclusive”).

19} First, citing In re Mary L., 1989-NMCA-054, 108 N.M. 702, 778 P.2d 449,
and State ex rel. Children, Youth & Families Dep’t v. Benjamin O., 2007-NMCA-
070, 141 N.M. 692, 160 P.3d 601, Mother contends that the district court erred by
relying on her failure to comply with her treatment plan in terminating her parental
rights. Reliance on these cases is inapt. In Mary L., we held that evidence of a
mother’s failure to comply with a non-court mandated treatment plan during a period
when CYFD wrongfully took custody of her children was insufficient, standing
alone, to support an adjudication that she neglected her children. 1989-NMCA-054,
nlike this case, Mary L. involved an appeal from an adjudication of
neglect. Id. § 1. As noted, Mother pleaded no contest to the charge of abuse and

neglect. Furthermore, Mother was court-ordered to comply with her treatment plan.

a parent’s failure to participate in a court-ordered treatment plan as evidence in
terminating parental rights, and we assume none exists. See In re Adoption of Doe,
1984-NMSC-024, ¢ 2, 100 N.M. 764, 676 P.2d 1329. Moreover, our Supreme Court
recently affirmed a termination of parental rights where the district court considered
a father’s failure to comply with his court-ordered treatment plan. See State ex rel.
Children, Youth & Families Dep’t v. Keon H., 2018-NMSC-033, 4 54, 421 P.3d 814
(“[T]he [district] court found that [the flather did not substantially comply with his
court-ordered treatment plan. ... We will not disturb the district court’s findings.”
(internal quotation marks omitted)); see also State of N.M. ex rel. Children, Youth &
Families Dep’t v. Athena H., 2006-NMCA-113, 4 9, 140 N.M. 390, 142 P.3d 978
(considering a parent’s compliance with treatment plan in assessing a parent’s
progress in addressing the causes and conditions of the abuse or neglect).

720} Reliance on Benjamin O. is no more helpful to Mother. In Benjamin O., this
Court reversed the underlying finding of abuse and neglect. 2007-NMCA-070, § 13.
Under those circumstances, we clarified that it would be improper to rely on the

father’s non-compliance with a treatment plan to prove that he was an abusive or

7| neglectful parent in the first instance. /d. § 41. Here, Child was validly adjudicated

an abused and neglected child after Mother pleaded no contest to the allegations, and
Mother’s treatment plan was based upon this finding of abuse and neglect.
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Accordingly, it was not improper

compliance with her court-ordered treatment plan in assessing whether the
conditions and causes of the neglect and abuse were likely to change in the
foreseeable future.

213 Second, citing State ex rel. Children, Youth & Families Dept. v. Alfonso M.-
E., 2016-NMCA-021, 366 P.3d 282, Mother contends that the district court
incorrectly shifted the burden of proof from the CYFD to her. Unlike A/fonso M.-E.,
see id. | 37, however, there is no indication in the record that the district court shifted
the burden to Mother in this case. In fact, in its order terminating parental rights, the
district court clarified that the burden was on CYFD to “offer evidence . . . (1) [about
the] abuse and neglect of [Child], (2) [about] the attempts made by CYFD to
ameliorate the conditions leading to the abuse and neglect, and (3) that despite these
efforts, that [Mother] failed to make changes, such that, (4) the conditions and causes
of the neglect and abuse are unlikely to change in the foreseeable future.” Because
the district court did not impermissibly shift the burden of proof, we find no error.
223}. Third, Mother advances several arguments purportedly based upon Lance K.,

2009-NMCA-054. In Lance K., this Court held that, despite some remaining

7 concerns about the father’s behavior, there was not clear and convincing evidence

that the conditions and causes of neglect were unlikely to change in the foreseeable

future because of the father’s substantial progress. Jd. J] 30, 37. In so doing, this

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that took place years before the termination hearing. Jd. [{ 26, 32. We also noted
that CYFD’s complaints about the father’s reaction to certain department
recommendations could be “viewed as reflecting [the f]ather’s mistrust of CYFD in
general and his disagreement with CYFD’s assessments.” Id. § 25. Finally, we
clarified that “the fact that a child might be better off in a different environment is
not a basis for termination of parental rights in this state.” Id. 137 (alteration, internal
quotation marks, and citation omitted).

23} None of these propositions, however, are helpful to Mother. The vast majority
of the evidence presented concerned the ten months leading up to the TPR hearing,
and thus was not stale. Unlike Lance K. , the district court heard ample evidence that
Mother had not made substantial progress with critical aspects of her court-ordered
treatment plan, and thus Mother’s mistrust of CYFD is no excuse for her failure to
comply. Finally, the district court was very clear in its order that it was not
comparing Mother’s home with the foster parents’ home, stating “[a] parent’s rights
may not be terminated simply because a child might be better off in a different
environment.” Accordingly, Mother’s reliance on Lance K. is misplaced.

24 What is more, there is substantial evidence of a clear and convincing nature
that the conditions and causes of the neglect—namely Mother’s lack of awareness

and inability to attend to Child’s medical needs—were unlikely to change in the

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foreseeable future. The district court determined that, even though Mother’s
treatment plan had been in place since October 2013,

serious deficiencies continue to remain related to: (1) attending 95% of
[Child’s] medical, dental, and developmental appointments and being
able to discuss issues and concerns related to his healthcare; (2)
sufficiently attending school functions and understanding [Child’s]
education and development needs; (3) engaging in psychotherapy; (4)
failing to discuss the extent and dependency of her relationship with
[Grandmother] and providing CYFD with sufficient information to

_ assess [Grandmother’s] ability as a proposed backup care provider to
[Child]; (5) adequately recogniz[ing] Mother’s own involvement in the
causes and conditions that brought [Child] into the [S]tate’s care; and
(6) maintaining appropriate interaction, discipline and supervision to
CYFD staff and/or providers and communicating and cooperating with
those providers in order to properly work the treatment plan.

The district court provided that “[t]he uncontroverted testimony is that [Child] has
significant medical issues that will persist for many years, some for his lifetime,
which require regular visits to numerous medical providers.” The court emphasized,
“of the utmost concern for the [cJourt, is [Mother’s] lack of participation and
heare needs and medical appointments{,]” stating “[ijt
is unacceptable that [Mother] has rarely attended [Child’s] medical appointments in

2017.” Additionally, Mother never made appointments to meet with Child’s service

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court credited Ms. Vigil’s testimony that Mother “has not met the medical needs of

[Child],” and Ms. Huddleston’s testimony “that to this day [Mother] still does not

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concems that Mother would be unable to meet the demands of raising a medically
fragile child. Finally, Mother failed to complete recommended psychotherapy as
ordered by her treatment plan.

25} Reviewing the evidence in the light most favorable to the judgment, we
conclude that substantial evidence supports the district court’s determination that the
conditions and causes of the neglect were unlikely to change in the foreseeable
future. See Keon H., 2018-NMSC-033, 4 54 (affirming a termination of parental
rights where the district court considered the father’s inability to meet the child’s
“highly specialized needs”); State ex rel. Children, Youth & Families Dep’t v.
Raymond D., 2017-NMCA-067, { 19, 404 P.3d 15 (considering evidence regarding
the father’s “inability to attend to [his cJhild’s special needs” in affirming a
termination of his parental rights); State ex rel. Children, Youth & Families Dep't v.
Patricia H., 2002-NMCA-061, §¥ 33, 39 132 N.M. 299, 47 P.3d 859 (affirming
termination of the mother’s parental rights where the child had specialized needs
requiring a high level of care and the mother had stopped participating in services).
CONCLUSION

26} For the foregoing reasons, we affirm the district court’s judgment terminating

Mother’s parental rights to Child pursuant to Section 32A-4-28(B)(2).

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{27} IT IS SO ORDERED.
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JENNIFER L. ATTREP, Judge
WE CONCUR:
Funda Wany
LINDA M. VANZI, Judge
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Megan P Duffy
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MEGAN P. DUFFY, Judge{
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June 25, 2019- CYFD v. Krystal R., No. A-1-CA-36890

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