May 14, 2020- CYFD v. Venessa S., No. A-1-CA-38516

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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-38516	6
VENESSA S.,	7
Respondent-Appellant,	8
IN THE MATTER OF	9
CHRISTOPHER S., SEAN S.,	10
and ANTHONY J.M.,	11
Children.	12
APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY	13
Thomas F. Stewart, District Judge	14
Children, Youth & Families Department	15
Rebecca J. Liggett, Chief Children’s Court Attorney	16
Santa Fe, NM	17
Kelly P. O’Neill, Children’s Court Attorney	18
Albuquerque, NM	19
for Appellee	20
Law Offices of Jane B. Yohalem	21
Jane B. Yohalem	22
Santa Fe, NM	23
for Appellant	24
Court of Appeals of New Mexico
Filed 5/14/2020 11:07 AM

2
Rio Law Firm	1
Francis J. Rio, III	2
Clovis, NM	3
Guardian Ad Litem	4
DECISION	5
B. ZAMORA, Judge.	6
{1} 	Venessa S. (Mother) appeals the district court’s judgment terminating her	7
parental rights to her children, A.M., C.S., and S.S. (Children). Mother argues that	8
substantial evidence does not support the district court’s finding that Mother was	9
unlikely to change the conditions and causes of her neglect within the foreseeable	10
future. We affirm.	11
BACKGROUND	12
{2} 	In January 2018 the Children, Youth, and Families Department (CYFD) took	13
custody of Children who were ages eight, six, and two at the time. After CYFD	14
received 	test 	results 	showing 	that 	all 	three 	children 	had 	tested 	positive 	for	15
methamphetamine, it filed a petition alleging Children were abused and neglected	16
by Mother. Mother entered a no contest plea to neglect at the adjudicatory and	17
dispositional hearing in April 2018, and the district court found that Mother had	18
neglected Children “as defined in [NMSA 1978,] Section 32A-4-2(G)(2) [(2018)].”	19
The court also found that it was “in the best interest of [C]hildren [to] be in the legal	20
custody of CYFD” and ordered that CYFD make reasonable efforts to implement a	21

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court-approved case plan. The case plan required Mother to: (1) complete a	1
psychological evaluation with a substance abuse component; (2) participate in all	2
scheduled visits “at the discretion of CYFD”; (3) participate in random drug testing;	3
(4) “participate and demonstrate skills learned in parenting class”; (5) provide a	4
clean and stable home; (6) attend domestic violence counseling; (7) participate in	5
individual therapy; (8) participate in family counseling; and (9) “gain insight and	6
understanding of [A.M.]’s medical behavioral issues by participating in [A.M.]’s	7
treatment.”	8
{3} 	Nine months after Children had been taken into custody, on October 19, 2018,	9
CYFD filed a motion to terminate Mother’s parental rights alleging that Mother was	10
“unable or unwilling to provide proper parental care” for Children and that it was	11
“unlikely that this situation [would] change in the foreseeable future[.]” The district	12
court held a permanency hearing in December 2018 and found that because Mother	13
had “made little progress in her case plan” and CYFD had “made reasonable efforts	14
to finalize the permanency plan currently in effect,” CYFD was “relieved from its	15
obligation to make reasonable efforts to implement the case plan[.]” The district	16
court also made a futility finding, relieving CYFD “from its obligations to make	17
reasonable efforts to implement the case plan” for Mother.	18
{4} 	The first day of the termination of parental rights (TPR) hearing was held on	19
February 21, 2019. After hearing the evidence on that day, the district court held the	20

4
TPR determination in abeyance for sixty days and encouraged Mother to do	1
“everything [she] possibly can, as strongly as [she] can” in order to keep her parental	2
rights. The TPR hearing resumed on April 18, 2019, after which the district court	3
entered the following pertinent findings:	4
9. 	There was an [i]nitial [p]ermanency [o]rder entered December	5
13, 2018 which contained a futility finding relieving [CYFD]	6
from making reasonable efforts to assist [Mother] in completing	7
her case plan due to her lack of compliance with her case plan at	8
that time and judicial notice was taken of the [o]rder.	9
. . . .	10
12. 	[CYFD] made efforts to assist [Mother] in resolving the causes	11
and conditions that brought [C]hildren into custody. These	12
efforts include:	13
A. 	Develop[ing] a case plan for [Mother] to address the	14
reasons [C]hildren came into [CYFD’s] custody;	15
B. 	Review[ing] the case with [Mother] multiple times;	16
C. 	Ma[king] referrals to services for [Mother];	17
D. 	Continu[ing] to try and maintain contact with [Mother];	18
E. 	Assist[ing] with transportation for [Mother] to attend	19
visitations with [C]hildren;	20
F. 	Ma[king] additional referrals after the futility finding was	21
made December 13, 2018 to assist and help [Mother];	22
. . . .	23
27. 	[Mother] has not maintained a regular visitation schedule with	24
[C]hildren throughout the case, despite [CYFD’s] arrangements	25
for visitation with [C]hildren and for transportation as necessary.	26

5
. . . .	1
29. 	[Mother] has not completed parenting classes. As of April 18,	2
2019, [Mother] had completed one parenting class.	3
. . . .	4
31. 	[Mother] does not understand how her past drug use or domestic	5
violence has [a]ffected [C]hildren.	6
. . . .	7
37. 	[Mother] had not completed her case plan by the time of the	8
second hearing on the motion [for TPR] on April 18, 2019 and	9
did not appear to have made much, if any, progress towards	10
understanding 	the 	causes 	or 	alleviating 	the 	conditions 	that	11
resulted in [C]hildren being taken into custody by [CYFD].	12
The district court concluded that CYFD had “proven by clear and convincing	13
evidence that [Children] are neglected children” and that the “causes and conditions	14
of the neglect that brought the [C]hildren into [CYFD’s] custody are unlikely to	15
change in the foreseeable future despite the reasonable efforts by [CYFD] and other	16
appropriate agencies to assist [Mother] in adjusting the conditions which render [her]	17
unable to properly care for [Children].” This appeal followed.	18
DISCUSSION	19
Substantial Evidence Supported the District Court’s Findings	20
{5} 	On appeal, Mother does not dispute the district court’s findings of fact, and	21
instead argues that the district court erred in finding the conditions and causes of	22
Children’s neglect were unlikely to change in the foreseeable future, because the	23

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“evidence in the record establishes that by the time of the [TPR] hearing, Mother	1
had turned her life around and, with a little assistance, would shortly be in a position	2
to parent Children.” Mother also contends that the district court “abused its	3
discretion in failing to reverse its futility finding and allow Mother to have more	4
time to remedy the causes and conditions of her neglect of Children with help from	5
CYFD.” CYFD acknowledges “the great strides [Mother] made in the early part of	6
2019,” but maintains that the district court “focused multiple findings on Mother’s	7
failure to demonstrate—at the time of [the TPR hearing]—that she understood or	8
could meet Children’s mental, physical, and emotional needs.”	9
{6} 	“A court seeking to terminate parental rights based on abuse or neglect must	10
find that (1) the child was abused or neglected, (2) causes of the abuse or neglect	11
were unlikely to change in the foreseeable future, and (3) CYFD made reasonable	12
efforts to assist the parent in adjusting the conditions.” State ex rel. Children, Youth	13
& Families Dep’t v. Melvin C., 2015-NMCA-067, ¶ 15, 350 P.3d 1251 (internal	14
quotation marks and citation omitted); see also NMSA 1978, § 32A-4-28(B)(2)	15
(2005). CYFD bears the burden of proving that parental rights should be terminated	16
“by clear and convincing evidence.” In re Termination of Parental Rights of Eventyr	17
J., 1995-NMCA-087, ¶ 2, 120 N.M. 463, 902 P.2d 1066. “Clear and convincing	18
evidence is . . . evidence that instantly tilts the scales in the affirmative when weighed	19
against the evidence in opposition and the fact[-]finder’s mind is left with an abiding	20

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conviction that the evidence is true.” State ex rel. Children, Youth & Families Dep’t	1
v. Lance K., 2009-NMCA-054, ¶ 16, 146 N.M. 286, 209 P.3d 778 (alteration,	2
internal quotation marks, and citation omitted).	3
{7} 	On appeal, this Court “will uphold the district court’s judgment if, viewing	4
the evidence in the light most favorable to the judgment, [the district court] could	5
properly determine that the clear and convincing standard was met.” State ex rel.	6
Children, Youth & Families Dep’t v. Hector C., 2008-NMCA-079, ¶ 11, 144 N.M.	7
222, 185 P.3d 1072 (internal quotation marks and citation omitted). Therefore, we	8
must determine “whether the [district] court’s conclusion, when viewed in the light	9
most favorable to the decision below, was supported by substantial evidence, not	10
whether the [district] court could have reached a different conclusion.” State ex rel.	11
Children, Youth & Families Dep’t v. Patricia H., 2002-NMCA-061, ¶ 31, 132 N.M.	12
299, 47 P.3d 859.	13
{8} 	We conclude there was substantial evidence presented by CYFD for the	14
district court to find that the conditions and causes of Children’s neglect were	15
unlikely to change in the foreseeable future. At the TPR hearing, Mother admitted	16
that she had not yet completed “any items on her case plan” and that she had only	17
attended eleven of the twenty-five scheduled visits with Children. Mother testified	18
that she had been living in a domestic violence shelter since January 18, 2019, had	19
not seen her abusive husband for six months, and had been “free of all substances”	20

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for “a month.” However, Madelaine La Rosa-Corliss, the permanency planning	1
worker (PPW) at CYFD assigned to Mother’s case, testified that although Mother	2
had called in regularly for her drug testing in January 2019 and had begun her	3
substance abuse counseling, Mother still had not begun her domestic violence	4
counseling or attended any parenting classes. She also testified that Mother had	5
tested positive for methamphetamine three times in the last eight months, with one	6
of those times in January 2019 after the futility finding.	7
{9} 	At the time of the continued TPR hearing, Mother was still living at a domestic	8
violence shelter with plans to move to Deming, despite the fact that her housing	9
application had not yet been approved. Even though Mother began attending	10
individual counseling and group counseling to learn her “triggers,” she could not	11
articulate what her triggers were, contending that there were “too many to count.”	12
Mother also failed to participate in A.M.’s medical and behavioral treatment and had	13
not called A.M. testifying that “it’s up to him if he wants to talk to me.” Although	14
Mother was learning coping skills and had demonstrated “less anger and frustration,”	15
the PPW did not believe that “there ha[d] been enough time” for Mother to	16
“demonstrate what she had learned.” By the second day of Mother’s TPR hearing,	17
Children had already been in the custody of CYFD for approximately fifteen months.	18
See In re Termination of Parental Rights of Reuben & Elizabeth O. v. Dept. of Health	19
Services, 1986-NMCA-031, ¶ 36, 104 N.M. 644, 725 P.2d 844. (explaining that	20

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when “balancing the interests of the parents and children, the court is not required	1
to place the children indefinitely in a legal holding pattern[,]” thus, forcing “the	2
children to wait for the uncertain possibility that the natural parents, despite their	3
persistent and long standing disregard of the children’s interest,” will instead	4
“remedy past faults which may have rendered the children neglected.”).	5
{10} 	We recognize, as did the district court, that in the months preceding the TPR	6
hearing, Mother made progress in her sobriety and treatment. However, substantial	7
evidence presented by CYFD demonstrated that Mother was not likely to make the	8
necessary changes in the “foreseeable future.” See Patricia H., 2002-NMCA-061,	9
¶ 34 (explaining that “the term ‘foreseeable future’ [refers] to corrective change	10
within a reasonably definite time or within the near future.” (internal quotation	11
marks and citation omitted)). The district court found that despite her recent	12
progress, Mother did “not understand how her past drug use or domestic violence	13
ha[d] [a]ffected” [C]hildren, Mother did not actually believe she needed domestic	14
violence and substance abuse counseling, and Mother had yet to complete her case	15
plan and had no firm plan for housing. Our review of the record supports the district	16
court’s finding. While Mother acknowledged she was required to attend domestic	17
violence counseling, she did not comply because she “[was] no longer with [her	18
spouse].” Similarly, the PPW testified at the first day of the TPR hearing that Mother	19
had been resistant to substance abuse counseling because Mother “says that she	20

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stopped by herself and didn’t need it.” By the April 2019 hearing, Mother had	1
attended two family therapy sessions for S.S. but had not attended any family	2
therapy for A.M,1 and had only completed one of her eight parenting classes. While	3
Mother was residing at a domestic violence shelter at the time of the TPR hearing,	4
she had no “stable” housing available, one of the requirements of her case plan.	5
According to the PPW, Mother’s visitations with A.M. were sporadic, including in	6
the months preceding the TPR hearing. The district court, in its role as the fact-	7
finder, was free to weigh the evidence of Mother’s progress against the likelihood	8
that she would reach a point where she would be capable of parenting Children. See	9
State ex rel. Children, Youth & Families Dep’t v. Amanda H., 2007-NMCA-029,	10
¶ 19, 141 N.M. 299, 154 P.3d 674 (stating that appellate courts “employ a narrow	11
standard of review and do not re-weigh evidence.”); see also State ex rel. Children,	12
Youth & Families Dep’t v. Browind C., 2007-NMCA-023, ¶ 40, 141 N.M. 166, 152	13
P.3d 153 (holding that “[p]arents do not have an unlimited time to rehabilitate and	14
reunite with their children”). Based on the foregoing, we conclude that substantial	15
evidence, of a clear and convincing nature, supported the district court’s order	16
finding that the causes and conditions that brought Children into CYFD custody	17
were unlikely to change in the foreseeable future.	18
1 Mother was unable to attend any family therapy session for C.M. because he
did not have a counselor until the time of the final hearing.

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{11} 	We now turn to Mother’s challenge of the district court’s futility finding. “The	1
district court may excuse the reasonable efforts requirement when there is a clear	2
showing that the efforts would be futile[.]” State ex rel. Children Youth & Families	3
Dep’t v. Keon H., 2018-NMSC-033, ¶ 40, 421 P.3d 814 (internal quotation marks	4
and citation omitted); see § 32A-4-28(B)(2)(a) (“The court may find in some cases	5
that efforts by [CYFD] are unnecessary, when . . . there is a clear showing that the	6
efforts would be futile[.]”). Viewing the evidence in the light most favorable to the	7
judgment, we conclude CYFD presented substantial evidence, of a clear and	8
convincing nature, that CYFD’s efforts to assist Mother would be futile.2 From April	9
2018, when Mother pleaded no contest to neglecting Children to the futility finding	10
in December 2018, an eight month period, Mother “made little progress in her case	11
plan,” and still needed to make progress in “all areas[.]” During this period, CYFD	12
made numerous referrals for Mother to attend counseling and treatment, which	13
Mother failed to complete. Mother was referred to Tammy Dean for domestic	14
violence counseling and only attended once prior to 2019. Mother failed to attend	15
2 Because Mother challenges her TPR, we consolidate both issues and apply
the substantial evidence standard to the futility finding. See State ex rel. Children,
Youth & Families Dep’t v. Vanessa C., 2000-NMCA-025, ¶ 22, 128 N.M. 107, 997
P.2d 883 (stating as both the district court’s findings regarding futility and
termination of parental rights “concern the sufficiency of the evidence to support the
trial court’s decision to terminate [the m]other’s parental rights, we consolidate them
for 	consideration 	under 	the 	standard 	of 	review 	applicable 	at 	termination
proceedings”).

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her 	scheduled 	appointment 	with 	Dr. 	Amalia 	Humada-Ludeke, 	an 	individual	1
counselor, and also failed to attend substance abuse treatment. Additionally, Mother	2
cancelled her first two appointments, failed to attend her scheduled group session,	3
and never rescheduled appointments with Take Action Counseling in October 2018.	4
Mother’s 	drug 	testing 	was 	“not 	consistent,” 	and 	she 	tested 	positive 	for	5
methamphetamine prior to the futility finding. Thus, we conclude substantial	6
evidence, of a clear and convincing nature, supports the district court’s finding that	7
CYFD’s efforts to assist Mother would be futile.	8
CONCLUSION	9
{12} 	For the foregoing reasons, we affirm.	10
{13} 	IT IS SO ORDERED.	11
_____________________________	12
BRIANA H. ZAMORA, Judge	13
WE CONCUR:	14
_______________________________	15
LINDA M. VANZI, Judge	16
_______________________________	17
JACQUELINE R. MEDINA, Judge	18