August 23, 2016 – In the Matter of the Adoption Petition of Darla D., No. 34,327, VzHnS

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: August 31, 2016
NO. 34,327

IN THE MATTER OF THE ADOPTION
PETTTIION OF DARLA D. and PATTY R.,

Petitioners-A ppellees,

V.

GRACE R.,
Respondent- Appellant,

and

IN THE MATTER OF TRISTANR.,
Child.

APPEAL FROM THE DISTRICT COURT OF MORA COUNTY
Gerald E. Baca, District Judge

Caren I. Fiedman
Santa Fe, NM

Brown & Gallegos
Flora Gallegos
Las Vegas, NM

for Appellees

Jane B. Yohalem	1
Santa Fe, NM	2
for Appellant	3
Law Office of Aida Medina Adams	4
Aida Medina Adams	5
Santa Rosa, NM	6
Guardian Ad Litem	7

OPINION	1
VANZI, Judge.	2
{1} 	Grace R. (Mother) appeals from the district court’s letter decision and decree	3
of adoption and termination of parental rights, terminating her parental rights to	4
Tristan R. (Child) and granting the verified petition for adoption and termination of	5
parental rights (the petition) filed by Darla D. and Patty R. to adopt Child pursuant to	6
the provisions of the Adoption Act, NMSA 1978, §§ 32A-5-1 to -45 (1993, as	7
amended through 2012). Mother challenges the letter decision and decree on	8
numerous grounds, including that her constitutional and statutory rights were violated	9
and that there was insufficient evidence to support the termination of her parental	10
rights. We agree with Mother that multiple procedural and constitutional violations	11
infected the proceedings below. We further conclude that the district court’s rulings	12
that Mother abused and neglected Child and that the conditions and causes of such	13
neglect and abuse are unlikely to change in the foreseeable future are not, as they must	14
be, supported by clear and convincing evidence. We therefore reverse.	15
BACKGROUND	16
{2} 	We begin with an overview of the factual and procedural background.	17
Additional details necessary to our analysis of particular issues are provided in the	18
discussion section below.	19

2
{3} 	Mother, who suffers from depression and post-traumatic stress disorder as well	1
as a physical illness, has been receiving support and therapy services through Life	2
Link since about August 2009. In May 2013 Life Link lost funding for the program	3
that subsidized Mother’s rent, requiring Mother to move from the home in Santa Fe,	4
New Mexico that she had been sharing with her boyfriend, Child, and Child’s older	5
sister. Concerned about finding housing she could afford, Mother became depressed	6
and overwhelmed. On the morning of May 23, 2013, with a few days left to move and	7
her daughter getting ready for summer school, Mother got into an argument with her	8
boyfriend and began yelling at him. When he tried to restrain her, Mother “scratched	9
and bit at him[.]” The police were called, and Mother was arrested and jailed for five	10
days. She pleaded guilty to disorderly conduct and was sentenced to ten hours of	11
community service and six months of unsupervised probation.	12
{4} 	While Mother was in jail, her children remained with her boyfriend. The	13
Children, Youth and Families Department (CYFD) checked on the welfare of the	14
children and determined that they were safe in his care. When Mother was released	15
from jail, she contacted the Santa Fe CYFD office and asked CYFD worker Denise	16
Shirley for help. Mother explained to Shirley that she felt her emotional stability was	17
at risk: She was going to lose her home and had no family support, and she was	18
requesting services offered by CYFD because they had been helpful in the past.	19

3
{5} 	CYFD and Mother agreed on a safety plan for the care of the children while	1
Mother sought intensive treatment from Life Link to address her anxiety disorder and	2
to help with coping skills. The safety plan provided that Child’s older sister would fly	3
to New Jersey to live with her biological father and Child would reside with his	4
paternal grandmother, Darla D. (Grandmother). Although the children were not in	5
CYFD custody, the safety plan was to remain “in effect until further reassessment by	6
the family’s CYFD caseworker.”	7
{6} 	On May 31, 2013, Grandmother and her partner, Patty R., (collectively,	8
Petitioners) picked up Child at Mother’s residence and took him to their home in	9
Mora, New Mexico. While Child was living with Petitioners, Mother saw a counselor	10
and caseworker at Life Link. She was placed on a waiting list for the Life Link	11
intensive program but participated in the program as a “casual member” between July	12
and September, attending therapy three times a week. In September 2013 Mother	13
became an official member of the program. At the time of trial, Mother continued to	14
receive counseling through Life Link.	15
{7} 	During the summer of 2013, Mother talked to Child on the phone at least once	16
a week. Between August and September, she also saw Child four times when	17
Grandmother was in Santa Fe with him. Later, Mother started calling Child nightly.	18
However, Petitioners told Mother that the nightly calls were disruptive. They set up	19
a schedule for Mother to call two days a week but sometimes did not answer the	20

4
phone. Mother left messages stating her frustration with not being able to talk to	1
Child.	2
{8} 	In early October 2013 Mother told Grandmother that she wanted to begin to	3
reintegrate Child back into her life and that she was hoping to have him back in Santa	4
Fe after Christmas. In November 2013 Grandmother had a disagreement with Mother	5
concerning how often Mother could speak with Child and, shortly thereafter, Mother	6
learned that Grandmother was trying to “serve [her] with something.” In fact,	7
Grandmother had filed a petition for a restraining order (TRO petition) against Mother	8
in the San Miguel County District Court, seeking to prevent Mother from having any	9
contact with her or Child. The TRO petition was dismissed in early December 2013,	10
after the district court held a hearing and concluded that Mother should visit Child and	11
that phone calls should occur regularly. At that point, Mother had not seen Child in	12
about a month and a half.	13
{9} 	In November 2013 after the TRO petition was filed, Mother was served with	14
Petitioners’ petition to terminate parental rights and to adopt Child in a closed	15
adoption. The petition, which had been filed almost a month earlier in a separate	16
proceeding in the district court, sought termination of the parental rights of Child’s	17
biological parents “on the basis of voluntary relinquishment of parental rights” and	18
requested a judgment declaring the closed adoption of Child by Petitioners.	19

5
{10} 	On March 3, 2014, after a hearing, the district court appointed a guardian ad	1
litem (GAL)—selected by Petitioners—for Child. The court held a merits hearing on	2
the petition (for ease of reference, trial) on July 15 and 25, 2014, and entered its letter	3
decision nearly three months later, on October 8, 2014. The letter decision contains	4
no factual findings and merely states the following conclusions: Child “has been	5
abused or neglected while in the care and custody of [Mother], and the conditions and	6
causes of the neglect or abuse are unlikely to change in the foreseeable future”; Child	7
“has been abandoned by his parents in that [C]hild has been placed in the care of	8
[P]etitioners by [Mother]”; and “all of the conditions set forth in Section 32A-5-	9
15(B)(3)(a-e) . . . exist and have not been rebutted by [Mother.]” No party filed	10
proposed findings of fact and conclusions of law. The decree of adoption and	11
termination of parental rights was filed on November 5, 2014. This appeal followed.	12
DISCUSSION	13
{11} 	Our courts have repeatedly recognized that a biological parent’s right to the care	14
and custody of her child implicates fundamental liberty interests protected by the Due	15
Process Clauses of the federal and state constitutions. See State ex rel. Children, Youth	16
& Families Dep’t v. John R., 2009-NMCA-025, ¶ 27, 145 N.M. 636, 203 P.3d 167	17
(stating that “a parent has a fundamental interest in the care, custody, and control of	18
his or her children”); see also Santosky v. Kramer, 455 U.S. 745, 753 (1982)	19
(recognizing “[t]he fundamental liberty interest of natural parents in the care, custody,	20

6
and management of their child”); State ex rel. Children, Youth & Families Dep’t v.	1
Joe R., 1997-NMSC-038, ¶ 29, 123 N.M. 711, 945 P.2d 76 (“[A parent’s] rights and	2
obligations . . . are protected by his constitutional right to due process.”); Ronald A.	3
v. State ex rel. Human Servs. Dep’t, 1990-NMSC-071, ¶ 3, 110 N.M. 454, 797 P.2d	4
243 (noting that a parent’s right to custody is constitutionally protected). Although a	5
parent’s right is fundamental and superior to the claims of other persons and the	6
government, it is not absolute. See In re Adoption of Francisco A., 1993-NMCA-144,	7
¶ 20, 116 N.M. 708, 866 P.2d 1175 (“It is well established in New Mexico that parents	8
do not have absolute rights in their children; rather parental rights are secondary to the	9
best interests and welfare of the children.”); In re Adoption of Bradfield, 1982-	10
NMCA-047, ¶ 16, 97 N.M. 611, 642 P.2d 214 (noting that “[t]he paramount issue in	11
an adoption proceeding . . . is the welfare of the child”). Nevertheless, to comply with	12
due process requirements, actions to terminate a parent’s rights “must be conducted	13
with scrupulous fairness.” State ex rel. Children, Youth & Families Dep’t v. Lorena	14
R., 1999-NMCA-035, ¶ 19, 126 N.M. 670, 974 P.2d 164 (alteration, internal quotation	15
marks, and citation omitted). The provisions of the Adoption Act governing	16
proceedings for adoption of children and concurrent termination of parental rights,	17
discussed below, reflect the constitutional dimension of the rights at stake.	18
{12} 	Mother makes several arguments on appeal. She contends that the district court	19
disregarded due process and statutory requirements for proceedings to terminate	20

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parental rights, including by failing to inform her of her right to court-appointed	1
counsel and requiring her to share the cost of the GAL. She argues that the district	2
court abused its discretion by (1) admitting into evidence and relying on the GAL’s	3
investigatory report, which included portions of the CYFD file; (2) failing to exclude	4
hearsay and double hearsay in the testimony of CYFD worker Kurt Smith; and (3)	5
allowing Child’s therapist to testify despite her refusal to produce her treatment notes.	6
Mother also contends that the decision terminating her parental rights is not supported	7
by clear and convincing evidence. We agree. We also conclude that the petition was	8
improperly filed and should have been dismissed at the inception of this case.	9
{13} 	We note at the outset that it appears that this matter was erroneously treated as	10
an abuse and neglect case under the Abuse and Neglect Act, NMSA 1978, §§ 32A-4-1	11
to -34 (1993, as amended through 2016), rather than as a proceeding under the	12
Adoption Act for adoption and concurrent termination of parental rights. We begin by	13
discussing the requirements for proceedings under the Adoption Act, and some of the	14
multitude of failures by Petitioners, the GAL, and the district court to follow those	15
requirements. We then address errors and abuses of discretion in the conduct of the	16
trial that led to the improper termination of Mother’s parental rights.	17
Failure to Follow the Strict Requirements for Adoption Requires Reversal	18
{14} 	The record reveals a host of violations of the Adoption Act, any one of which	19
would warrant reversal. Our review is de novo. Helen G. v. Mark J. H., 2008-NMSC-	20

8
002, ¶ 7, 143 N.M. 246, 175 P.3d 914; State ex rel. Children, Youth & Families Dep’t	1
v. Carl C., 2012-NMCA-065, ¶ 8, 281 P.3d 1242. To the extent that some of these	2
issues have been raised for the first time on appeal, we review for fundamental error.	3
See State ex rel. Children, Youth & Families Dep’t v. Paul P., Jr., 1999-NMCA-077,	4
¶ 14, 127 N.M. 492, 983 P.2d 1011 (stating that “termination of parental rights cases	5
can be candidates for fundamental error analysis”).	6
{15} 	The overarching purpose of the Adoption Act is to “establish procedures to	7
effect a legal relationship between a parent and adopted child” and to “ensure due	8
process protections.” Section 32A-5-2(A), (C). Only an “individual who has been	9
approved by the court as a suitable adoptive parent pursuant to the provisions of the	10
Adoption Act” may adopt. Section 32A-5-11(B)(1) (emphasis added). The record	11
reveals consistent failures to comply with the Adoption Act’s requirements. We	12
proceed chronologically, beginning with the petition.	13
Requirements for Verified Petition for Adoption	14
{16} 	As relevant here, Section 32A-5-12 of the Adoption Act provides:	15
A. 	No petition for adoption shall be granted by the court unless	16
the adoptee was placed in the home of the petitioner for the purpose of	17
adoption:	18
(1) by the department;	19
(2) by an appropriate public authority of another state;	20
(3) by an agency; or	21
(4) pursuant to a court order, as provided in Section	22
32A-5-13.	23

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. . . .	1
C. 	When an adoptee is not in the custody of the department or	2
an agency, the adoption is an independent adoption and the provisions	3
of this section and Section 32A-5-13 . . . shall apply, except when the	4
following circumstances exist:	5
. . . .	6
(2) a relative within the fifth degree of consanguinity to the	7
adoptee or that relative’s spouse seeks to adopt the adoptee, and, prior	8
to the filing of the adoption petition, the adoptee has lived with the	9
relative or the relative’s spouse for at least one year[.]	10
(Emphasis added.)	11
{17} 	The language of the Adoption Act is unambiguous. Petitioners could petition	12
for adoption of Child only if the requirements of either Section 32A-5-12(A) or (C)	13
were met. To the extent Petitioners imply that Child was “placed” with them under	14
Section 32A-5-12(A)(1), they are wrong. The record is clear and undisputed that	15
CYFD never took custody of Child. Accordingly, CYFD could not “place” him in the	16
home of Petitioners for any purpose. See § 32A-5-3(K) (“ ‘[D]epartment adoption’	17
means an adoption when the child is in the custody of [CYFD.]”); see also In re	18
Adoption of Doe, 1982-NMCA-094, ¶ 47, 98 N.M. 340, 648 P.2d 798 (noting that the	19
mother’s act of leaving child with her ex-husband was not a “placement” for purposes	20
of adoption under the Adoption Act). And certainly nothing in the safety plan or the	21
record as a whole shows that CYFD “placed [Child] in the home of [Petitioners] for	22
the purpose of adoption[.]” Section 32A-5-12(A) (emphasis added). Indeed, if Child	23

10
had been “placed” with Petitioners, then the district court should have required pre-	1
and post-placement studies pursuant to Sections 32A-5-14 and -31. The pre-placement	2
study is a written evaluation, paid for by the petitioner, of the adoptive family, the	3
adoptee’s biological family, and the adoptee. See §§ 32A-5-3(U), -13(B), -14(B). The	4
post-placement report is a written evaluation of the adoptive family and the adoptee	5
after the adoptee is placed for adoption. Section 32A-5-3(T). Here, the court never	6
required any such study at the commencement of the proceeding and, in fact, declared	7
in the decree that none was required, further belying Petitioners’ implication that	8
Child was “placed” with them for adoption. In short, Section 32A-5-12(A) did not	9
provide a basis for the petition.	10
{18} 	Nor could the petition properly be filed in reliance on Section 32A-5-12(C)(2),	11
as the record makes plain that the threshold requirements of this provision also were	12
not met. The petition, filed on October 23, 2013, states that “[C]hild has lived with .	13
. . Petitioners since May 2013.” It is evident from the face of the petition itself, then,	14
that Child had lived with Petitioners for a mere five months, and not “for at least one	15
year” prior to the filing of the adoption petition, as the Adoption Act requires.	16
Accordingly, Petitioners’ own allegations show that Section 32A-5-12(C)’s statutory	17
prerequisite was not met and that, therefore, they were not entitled to bring an action	18
seeking an independent adoption under the Adoption Act. See In re Adoption of	19
Webber, 1993-NMCA-099, ¶ 8, 116 N.M. 47, 859 P.2d 1074 (stating that the one-year	20

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residency provision is “a statutory prerequisite to . . . adoption and a safeguard to	1
ensure that the best interests of the child are met by allowing the adoption”).	2
{19} 	Given that the statutory prerequisite was not met, had Petitioners wished to	3
pursue the adoption of Child at any time prior to May 31, 2014, they would have been	4
required to obtain a court order placing Child in their home for the purpose of	5
adoption. See § 32A-5-12(A)(4). Such an order requires compliance, not only with	6
Sections 32A-5-14(C) or -31(C), but also with Section 32A-5-13(A), which requires	7
a petitioner to file a request with the court to allow the placement and directs that “[a]n	8
order permitting the placement shall be obtained 	prior 	to actual placement.”	9
(Emphasis added.) Petitioners never sought any such order prior to May 2013.	10
{20} 	Instead, Petitioners alleged, citing Sections 32A-5-31(C) and 32A-5-14(C), that	11
“[p]lacement is not required because this is a relative adoption within the fifth degree	12
of consanguinity to the adoptee.” Petitioners are wrong. First, neither Section 32A-5-	13
14(C) nor -31(C) deals with “placement” but rather, as discussed above, with pre- and	14
post-placement studies, neither of which were ordered by the district court. Moreover,	15
both provisions state that pre- and post-placement reports are “not required in cases	16
in which the child is being adopted by a stepparent, a relative or a person named in the	17
child’s deceased parent’s will pursuant to Section 32A-5-12.” Sections 32A-5-14(C)	18
and -31(C) (emphasis added). Thus, the Adoption Act provides that “[n]o petition for	19
adoption shall be granted by the court” unless the requirements of Section 32A-5-12	20

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are met. Section 32A-5-12(A). Sections 32A-5-31(C) and 32A-5-14(C) provide no	1
basis to circumvent those requirements.	2
{21} 	In summary, the petition was improperly filed, and the district court should	3
have dismissed it immediately as a matter of law for failure to meet the Adoption	4
Act’s requirements. Although reversal is mandated for this reason alone, we continue	5
our analysis because the number, severity, and aggregate effect of errors in the	6
conduct of the proceedings below demand our attention and censure.	7
Termination Procedures	8
{22} 	The district court failed to heed and enforce procedural safeguards applicable	9
to proceedings to terminate parental rights under the Adoption Act. In pertinent part,	10
Section 32A-5-16 requires:	11
E. 	The court shall, upon request, appoint counsel for an	12
indigent parent who is unable to obtain counsel or if, in the court’s	13
discretion, appointment of counsel for an indigent parent is required in	14
the interest of justice. Payment for the appointed counsel shall be made	15
by the petitioner pursuant to the rate determined by the [S]upreme	16
[C]ourt of New Mexico for court-appointed attorneys.	17
F. 	The court shall appoint a guardian ad litem for the child in	18
all contested proceedings for termination of parental rights. . . .	19
G. 	Within thirty days after the filing of a petition to terminate	20
parental rights, the petitioner shall request a hearing on the petition. The	21
hearing date shall be at least thirty days after service is effected upon the	22
parent of the child or completion of publication.	23
{23} 	We begin with Subsection (E)’s requirement that the court must appoint counsel	24

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for an indigent parent either upon request or in the interest of justice. The record	1
shows that, although the district court was made aware that Mother was indigent, it	2
never informed Mother that it would appoint counsel for her if she was indigent and	3
requested counsel. Mother’s indigency became clear at the very first hearing in the	4
case in February 2014. Petitioners’ counsel told the court that counsel for Mother was	5
concerned that Mother could not pay half the cost of the GAL to be appointed for	6
Child. Mother’s counsel elaborated, stating his concern that Mother could not pay for	7
the GAL because she was on Social Security Disability Income (SSDI) and the	8
amount she received was “barely enough for her to live on.” He explained that he was	9
working on the case mostly pro bono. Although Mother had paid him a small amount	10
of money, “this is . . . a largely pro bono case.”	11
{24} 	We recognize that Mother was not pro se but represented by “largely pro bono”	12
counsel. But we have previously held that “a court must advise a parent in termination	13
proceedings under the adoption provisions of the Children’s Code that he or she is	14
entitled to have counsel appointed if indigency can be established.” Chris & Christine	15
L. v. Vanessa O., 2013-NMCA-107, ¶ 18, 320 P.3d 16. Given that Mother’s indigency	16
was pointed out to the court at the first hearing, it was incumbent upon the court to	17
advise Mother of her statutory right to counsel upon a showing of indigency. As we	18
noted in Chris & Christine L., the right to counsel “is meaningless if the parent is	19
unaware of the right.” Id. ¶ 17. Not only did the court fail to advise Mother of this	20

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statutory right, it inexplicably proceeded to order Mother to pay one-third of the	1
GAL’s fee, as discussed below.	2
{25} 	We conclude that the court’s failure to advise Mother that she would be entitled	3
to appointed counsel—paid for by Petitioners—if she could establish indigency	4
violated her rights under the Adoption Act, was in derogation of her due process	5
rights, and constitutes fundamental error. See § 32A-5-2(C) (stating that one purpose	6
of the Adoption Act is to “ensure due process protections”); Paul P., Jr., 1999-	7
NMCA-077, ¶ 15 (stating that “the procedures set out in the Children’s Code for	8
termination of parental rights suffice to insure a parent’s due process rights”). This	9
established right is viewed by our precedent as critical to the circumstance in which	10
a parent’s constitutional right to the care and custody of his or her child is implicated.	11
While pro bono legal representation is both commendable and important to legal	12
proceedings of all sorts in New Mexico, Mother nonetheless was not given an	13
opportunity for appointed counsel that was her right to accept or reject.	14
{26} 	We next address 32A-5-16(F)’s requirement that the court “shall appoint a	15
guardian ad litem for the child in all contested proceedings for termination of parental	16
rights.” As noted, the GAL was contacted and selected by Petitioners’ counsel, who	17
had discussed the case with her prior to the hearing on the motion for appointment of	18
a GAL for Child. The record is silent as to what information, if any, the GAL received	19
from Petitioners concerning the case. Nor is there any indication that Mother’s counsel	20

15
or the district court spoke with the proposed GAL before she was appointed. In fact,	1
it is apparent from the transcript that the GAL, who was “new to the district”	2
according to Petitioners’ counsel, was not present at the hearing on her appointment.	3
Nothing in the Adoption Act prescribes a method for appointing a GAL. Nevertheless,	4
we think that, in the circumstances presented here, the judicial duty to ensure that	5
procedures implicating a parent’s due process rights are conducted with “scrupulous	6
fairness,” see Lorena R., 1999-NMCA-035, ¶ 19, required the district court to confirm	7
that the GAL was properly informed as to her responsibilities under New Mexico law,	8
was not biased and was able to adequately represent Child’s interest. And we conclude	9
that the district court’s apparent failure to inquire about the adequacy of the GAL’s	10
representation of Child’s interest constitutes an abuse of discretion.	11
{27} 	We also conclude that the district court abused its discretion in requiring	12
Mother to pay one-third of the cost of the GAL that Section 32A-5-16(F) requires to	13
be appointed “in all contested proceedings for termination of parental rights[,]”	14
despite having been informed that Mother could not afford to pay even a portion of	15
the $150 hourly fee. Accepting Petitioners’ representation that the GAL anticipated	16
spending about ten hours on the case, Mother’s one-third portion of the fee would	17
have amounted to more than one-third of her total monthly income, which was already	18
“barely enough for her to live on.” Even Petitioners’ counsel asked if there was a	19
discretionary fund that might be used to assist Mother. But the district court asked	20

1We note that the GAL has not participated in any way in this appeal.	19
16
Mother’s counsel if there were “any resources there to assist her in getting that	1
payment taken care of” and then required Mother to pay one-third of the GAL fee.	2
{28} 	The Adoption Act prescribes no requirements for payment of GAL fees in	3
contested adoption proceedings, and district courts consequently have broad discretion	4
in apportioning those fees among the parties. But given the representations of counsel	5
for both sides concerning Mother’s inability to pay in this case, we conclude that the	6
court abused its discretion in requiring Mother to pay one-third of the GAL fee.	7
{29} 	The district court, moreover, confused the role of the GAL in this adoption	8
proceeding with that of a GAL in a domestic relations custody dispute, an error that	9
resulted in additional erroneous rulings contributing to the district court’s decision to	10
terminate Mother’s parental rights. We discuss these rulings and their impact on the	11
court’s decision more fully below, but pause here to explain.	12
{30} 	The Adoption Act states that the court shall appoint a GAL for the child in all	13
contested proceedings. Section 32A-5-16(F) and -33. As set forth in the Children’s	14
Code, the duties of the GAL are to “zealously represent the child’s best interests in the	15
proceeding for which the [GAL] has been appointed and in any subsequent appeals.”1
16
NMSA 1978, § 32A-1-7(A) (2005). The Children’s Code further requires that “[a]fter	17
consultation with the child, a [GAL] shall convey the child’s declared position to the	18
court at every hearing.” Section 32A-1-7(D). And it lists certain mandatory duties and	19

17
responsibilities, including consistent contact with the child and communications with	1
professionals involved in the child’s case. Section 32A-1-7(E).	2
{31} 	The district court erroneously determined that the GAL’s role and duties were	3
governed by Rule 1-053.3(A) NMRA, which allows a court to appoint a GAL in “any	4
proceeding when custody of a minor child is contested under Chapter 40” (Domestic	5
Affairs). While the Adoption Act “ensure[s] due process protections” in proceedings	6
to determine whether to terminate a parent’s ties with her child, see § 32A-5-2(A),	7
(C), the rule exists to assist the court in determining how both parents should best care	8
for their children. See Rule 1-053.3(A) (stating that “[t]he [GAL] serves as an arm of	9
the court and assists the court in discharging its duty to adjudicate the child’s best	10
interests”). There are marked differences between the appointment and role of the	11
GAL in the two types of cases. For example, unlike the mandatory requirement to	12
appoint a GAL in a contested adoption/termination of parental rights proceeding, the	13
appointment of a GAL in a domestic relations matter is discretionary. See id. (stating	14
that the court “may appoint” a GAL); see also Rule 1-053.3(E) (listing seventeen	15
factors to consider in determining whether an appointment will be made). And while	16
Rule 1-053.3(B) requires that the appointment order specify the GAL’s role, tasks,	17
duties, and any limitations and allows the parties to agree to adopt the GAL’s	18
recommendations, see Rule 1-053.3(G), the Adoption Act does not. Given these	19
differences, and for reasons discussed more fully below, we conclude that the district	20

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court erred in applying Rule 1-053.3 to the adoption and termination proceeding at	1
issue here.	2
{32} 	We briefly address Section 32A-5-16(G)’s requirement that the petitioner shall	3
request a hearing on the petition within thirty days after the filing of a petition to	4
terminate parental rights. Petitioners filed the petition on October 23, 2013, and did	5
not file a request for a hearing on the petition until April 14, 2014, well after the	6
thirty-day deadline. And by the time final judgment was entered on November 5,	7
2014, over a year had elapsed since the petition was filed. The length of time it took	8
for this case to be decided did not inure to the benefit of Child, now almost ten years	9
old and, in fact, may well have been detrimental to him.	10
Other Factors Contributing to Error in this Case	11
{33} 	We also briefly address Petitioners’ failure to meet the statutory requirements	12
for establishing relinquishment by a parent and for providing an accounting of	13
disbursements, and the district court’s own failure to apply the correct statute. First,	14
the sole justification asserted in the petition for seeking termination of Mother’s	15
parental rights is “on the basis of voluntary relinquishment.” Yet nowhere do	16
Petitioners demonstrate compliance with Sections 32A-5-21 and -22, which apply	17
when a petitioner is seeking to adopt on the basis of a relinquishment of parental	18
rights. Second, Section 32A-5-34(A) states that “[p]rior to the final hearing on a	19
petition, the petitioner shall file a full accounting of all disbursements of anything of	20

19
value made or agreed to be made by or on behalf of the petitioner in connection with	1
an adoption.” We have searched the record and found no evidence that any such report	2
was ever filed.	3
{34} 	The ultimate question in considering the many aforementioned failures to	4
comply with the Adoption Act that preceded the district court’s grant of the petition	5
is whether these failures substantially increased the risk of an erroneous decision to	6
terminate Mother’s parental rights. See State ex rel. Children, Youth & Families Dep’t	7
v. Maria C., 2004-NMCA-083, ¶ 37, 136 N.M. 53, 94 P.3d 796. In this regard, Mother	8
need only demonstrate that there is “a reasonable likelihood that the outcome might	9
have been different.” Id. We conclude that the outcome might well have been different	10
had the petition filed without a proper statutory basis been dismissed; had Mother	11
been advised of her right to court-appointed counsel upon a showing of indigency; had	12
a GAL been selected with proper court oversight; and had Mother not been required	13
to spend a significant portion of her SSDI benefits on the GAL fee.	14
{35} 	Although we conclude that reversal is warranted for the reasons already stated,	15
we address Mother’s argument that the district court’s decision to terminate her	16
parental rights was not supported by substantial evidence and other issues related to	17
the trial.	18
The Decree Is Not Supported by Clear and Convincing Evidence and Is	19
Erroneous as a Matter of Law to the Extent It Was Based on Alleged Abuse and	20
Neglect	21

20
{36} 	The standard of proof for termination of parental rights is clear and convincing	1
evidence. Sections 32A-5-16(H) and -36(E); State ex rel. Children, Youth & Families	2
Dep’t v. Vanessa C., 2000-NMCA-025, ¶ 24, 128 N.M. 701, 997 P.2d 833. We will	3
affirm the district court’s decision resulting in the termination of parental rights if its	4
findings are supported by clear and convincing evidence and if it applied the proper	5
rule of law. State ex rel. Dep’t of Human Servs. v. Minjares, 1982-NMSC-065, ¶ 12,	6
98 N.M. 198, 647 P.2d 400. “Clear and convincing evidence” is defined as evidence	7
that “instantly tilt[s] the scales in the affirmative when weighed against the evidence	8
in opposition and the fact finder’s mind is left with an abiding conviction that the	9
evidence is true.” In re Termination of Parental Rights of Eventyr J., 1995-NMCA-	10
087, ¶ 2, 120 N.M. 463, 902 P.2d 1066 (internal quotation marks and citation	11
omitted). “The function of the appellate court is to view the evidence in the light most	12
favorable to the prevailing party, and to determine therefrom if the mind of the	13
fact[]finder could properly have reached an abiding conviction as to the truth of the	14
fact or facts found.” State ex rel. Children, Youth & Families Dep’t v. Michelle B.,	15
2001-NMCA-071, ¶ 12, 130 N.M. 781, 32 P.3d 790 (internal quotation marks and	16
citation omitted). Applying this standard here requires that we evaluate whether the	17
district court could have found by clear and convincing evidence the necessary	18
statutory requirements for termination. Id. ¶ 20; State ex rel. Children, Youth &	19
Families Dep’t v. Patricia N., 2000-NMCA-035, ¶ 10, 128 N.M. 813, 999 P.2d 1045.	20

21
To the extent we must interpret the Adoption Act’s provisions, our review is de novo.	1
Helen G., 2008-NMSC-002, ¶ 7.	2
{37} 	As we have noted, the parties did not file any proposed findings of fact and	3
conclusions of law, and the district court did not enter any findings and conclusions	4
supporting its decisions to terminate Mother’s parental rights and grant Petitioners’	5
request to adopt Child. The court’s failure to make specific findings has greatly	6
hampered our ability to review the issues raised on appeal. Nevertheless, we have	7
carefully reviewed the record and now address the question whether Petitioners have	8
“present[ed] and prove[d] each allegation set forth in the petition for adoption by clear	9
and convincing evidence.” Section 32A-5-36(E); see § 32A-5-16(H).	10
{38} 	The Adoption Act authorizes the termination of parental rights when the child	11
has been abandoned, neglected or abused, or placed in the care of others and certain	12
conditions exist. Section 32A-5-15(B). Although Petitioners cite Section 32A-5-15 as	13
the basis for terminating Mother’s parental rights, the verified petition in this case	14
alleged that Mother’s parental rights were “being sought to be terminated on the basis	15
of 	voluntary 	relinquishment 	of 	parental 	rights.” 	Indeed, 	Petitioners’ 	counsel	16
repeatedly stated that “voluntary relinquishment” was the reason for seeking	17
termination of Mother’s parental rights. Yet there is not a shred of evidence in the	18
record that Mother voluntarily relinquished her parental rights and, in any event,	19
Petitioners wholly failed to meet Section 32A-5-21(A)’s clear requirement that any	20

22
such relinquishment by a parent shall be in writing.	1
{39} 	We will then assume that Petitioners meant to seek termination of Mother’s	2
parental rights based on presumptive abandonment, as the petition’s allegations track	3
several of the conditions stated in Section 32A-5-15(B)(3) that, if proved, would	4
establish a rebuttable presumption of abandonment. For example, the petition alleges	5
the following: Child has lived with Petitioners since May 2013, when Child was	6
placed there by CYFD pursuant to a safety plan; Child’s sister was placed with her	7
father in New Jersey for the same reasons; Petitioners financially support Child and	8
provide his educational, medical, and emotional needs; a parent/child relationship has	9
developed between Petitioners and Child; and Mother is not capable of caring for	10
Child.	11
{40} 	To be clear, Petitioners nowhere assert that Child was abandoned by Mother,	12
as set forth in Section 32A-5-15(B)(1), or that he was neglected or abused and the	13
conditions and causes of the neglect and abuse are unlikely to change in the	14
foreseeable future, as set forth in Section 32A-5-15(B)(2). Nevertheless, and without	15
notice to Mother, Petitioners proceeded to trial against Mother seeking termination of	16
her 	parental 	rights, 	apparently 	on 	grounds 	of 	abandonment, 	presumptive	17
abandonment, and abuse and neglect. The district court terminated Mother’s parental	18

2It is unclear from the record whether the district court terminated Mother’s	17
rights on all three statutory grounds. Both the court’s letter decision and the decree	18
conclude that Child has been abused and neglected and that the causes and conditions	19
are unlikely to change. Both also state that Child has been abandoned, citing only the	20
presumptive abandonment statute. Because of the lack of findings from the district	21
court, we cannot discern the legal basis for the court’s decision.	22
23
rights to Child.2 Although the allegations stated in the petition implicate only	1
presumptive abandonment, we discuss each statutory ground.	2
Abandonment	3
{41} 	We easily dispense with Petitioners’ contention and the district court’s ruling	4
that Mother abandoned Child. Abandonment, in its purest form, requires a complete	5
renunciation of responsibility. There is no evidence to support the district court’s	6
determination of abandonment, let alone clear and convincing evidence.	7
{42} 	Mother and CYFD agreed on a safety plan for the Child’s care while Mother	8
sought intensive treatment from Life Link. The plan provided that Child, who was six-	9
and-a-half years old at the time, would reside with Grandmother “until further	10
reassessment by . . . CYFD.” At no time did Mother indicate that she no longer wanted	11
Child; in fact, she was hoping to get Child back by the start of the school year. There	12
is no evidence that Mother left Child with Petitioners without communication, either	13
by telephone or in person. To the contrary, there is unrefuted testimony that, during	14
the summer of 2013, Mother called Child at least once a week; saw him four times	15
between August and September; and later called him nightly. Even after Petitioners	16

24
told Mother that the nightly calls were “disruptive,” Mother tried to call Child two	1
days a week. And even the GAL concluded that Mother had not abandoned Child. The	2
district court’s ruling that Mother abandoned Child is entirely unsupported by the	3
evidence, and we reverse that ruling. As indicated below, the evidence better supports	4
conduct by Mother for which she is to be commended: She recognized that her	5
emotional, financial, and living conditions did not allow for the best environment for	6
her children. She took the opportunity to locate, while she sought help, suitable	7
alternative homes for her children until she could properly care for them. Nothing in	8
this record—and we mean nothing—supports relinquishment, abandonment, or	9
anything even suggesting that Mother sought to permanently yield her liberty right to	10
the custody and care of Child.	11
Presumptive Abandonment	12
{43} 	A rebuttable presumption of abandonment can be raised by showing that the	13
child has been placed in the care of others, including other relatives, whether by court	14
order or otherwise, and by establishing the following six additional criteria:	15
(a) the child has lived in the home of others for an extended	16
period of time;	17
(b) the parent-child relationship has disintegrated;	18
(c) a psychological parent-child relationship has developed	19
between the substitute family and the child;	20
(d) if the court deems the child of sufficient capacity to	21
express a preference, the child no longer prefers to live with the natural	22
parent;	23
(e) the substitute family desires to adopt the child; and	24

25
(f) a presumption of abandonment created by the conditions	1
described in Subparagraphs (a) through (e) of this paragraph has not	2
been rebutted.	3
Section 32A-5-15(B)(3).	4
{44} 	In In re Adoption of J.J.B., our Supreme Court addressed the requirements of	5
the presumptive abandonment statute stating:	6
[W]e have emphasized that two factors must both be established to prove	7
abandonment: (1) parental conduct evidencing a conscious disregard of	8
obligations owed to the child, and (2) this conduct must lead to the	9
disintegration of the parent-child relationship. We emphasize that both	10
factors must be established to prove abandonment, and that evidence of	11
the disintegration of the parent-child relationship is of no consequence	12
if not caused by the parent’s conduct.	13
1995-NMSC-026, ¶ 44, 119 N.M. 638, 894 P.2d 994.	14
{45} 	Thus, Petitioners had the burden of proving “that the objective parental conduct	15
[is] the cause of the destruction of the parental-child relationship.” Id. ¶ 47. The	16
presumption of abandonment arising from proof of the factors listed in Section 32A-5-	17
15(B)(3) “is completely rebutted by showing that a parent lacks responsibility for the	18
destruction of the parent-child relationship.” Adoption of J.J.B., 1995-NMSC-026, ¶	19
47.	20
{46} 	Petitioners claim they proved that the statutory factors have been met by clear	21
and convincing evidence. Specifically, they contend that Child has lived with	22
Petitioners “for an extended period of time”; the parent-child relationship has	23
disintegrated; a psychological parent-child relationship had developed between them	24

26
and Child; and Child no longer prefers to live with Mother. See § 32A-5-15(B)(3)(a)-	1
(d). As proof, Petitioners say that Child lived with them for over a year at the time of	2
trial and, therefore, the “extended period of time” requirement has been met. They also	3
contend that they initiated and arranged all visits between Mother and Child and that	4
Child did not want to engage with Mother during the visits. These facts, they argue,	5
prove by clear and convincing evidence that the parent-child relationship has	6
disintegrated. In addition, they say, Child has known Petitioners for a long time, is	7
bonded to them and loves them, and these circumstances establish a psychological	8
parent-child relationship. Finally, they rely on the testimony of Grandmother and	9
Child’s therapist that Child’s preference was to live with Petitioners.	10
{47} 	We disagree with Petitioners that there is clear and convincing evidence to	11
support the decree on grounds of presumptive abandonment. As a preliminary matter,	12
we note that the failure to prove any one of the statutory criteria by clear and	13
convincing evidence is sufficient to preclude termination of Mother’s parental rights,	14
as the statute makes clear that all six conditions must exist. See § 32A-5-15(B)(3);	15
§ 32A-5-15(C) (stating that a rebuttable presumption of abandonment exists when the	16
court finds that each of the six factors enumerated in Section 32A-5-15(B)(3) has been	17
met).	18
{48} 	We begin with the requirement that Child lived in Petitioners’ home “for an	19
extended period of time.” The lengths of time and the surrounding facts vary in the	20

27
case law, but what remains constant is deliberate action by the parent to leave the child	1
behind or to refuse to assume parental responsibilities. While it is true that Child had	2
lived with Petitioners for over a year at the time of trial, we conclude that this fact,	3
standing 	alone, 	is 	insufficient 	to 	satisfy 	Section 	32A-5-15(B)(3)(a) 	in 	the	4
circumstances presented here. Child had lived with Petitioners only for about five	5
months at the time the petition was filed. Had Petitioners followed the Adoption Act’s	6
requirement and requested a hearing within thirty days of filing, instead of waiting six	7
months to do so, it is reasonably likely that Petitioners could not make this argument	8
today. We discern no justification for the delay in requesting a hearing on the petition.	9
Further, prior to the filing of the petition, and once Petitioners learned that Mother	10
wanted Child back, they filed the TRO petition seeking to prevent Mother from	11
having any contact with Child. There is little question that Petitioners have taken steps	12
to restrict Mother’s access to Child throughout these proceedings. We reject	13
Petitioners’ attempt to use their own violation of one statutory requirement (to request	14
a hearing within thirty days of filing the petition) as evidence of compliance with	15
another statutory requirement (that Child lived in Petitioners’ home “for an extended	16
period of time”), and conclude that the “extended period of time” requirement was not	17
met. See § 32A-5-15(B)(3)(a).	18
{49} 	We need go no further in reversing the district court’s determination of	19
presumptive abandonment, but nevertheless briefly address the evidence purportedly	20

28
supporting the remaining statutory requirements. With regard to the disintegration of	1
the parent-child relationship, Petitioners point to evidence that they initiated and	2
arranged visits between Mother and Child and to Patty R.’s testimony that “most of	3
the visits I’d have to say [Child] was not very engaged with her. He didn’t want to	4
be.” We have difficulty concluding that this constitutes clear and convincing evidence	5
that the parent-child relationship had disintegrated. See, e.g., Adoption of J.J.B., 1995-	6
NMSC-026, ¶ 49 (defining “disintegration” of the parent-child relationship as the	7
destruction of the parent’s relationship with the child). Moreover, as we have	8
discussed above, to the extent Mother’s relationship with Child had disintegrated,	9
Petitioners themselves contributed to the disintegration by thwarting Mother’s efforts	10
to have contact with Child, precluding the conclusion they seek. See id. (stating that	11
a party seeking adoption of a child “must not by their own conduct have intentionally	12
contributed to the factors causing the disintegration of the parent-child relationship”).	13
{50} 	In addition, although we do not doubt that Child has a bond with Petitioners,	14
there was not sufficient evidence that “a psychological parent-child relationship [had]	15
developed.” Section 32A-5-15(B)(3)(c). That Child had extended overnight visitations	16
with Petitioners, wanted to come home from school because he missed them, and	17
relied on them for his home environment does not demonstrate by clear and	18
convincing evidence the existence of a parent-child relationship.	19
{51} 	Finally, the record does not establish Child’s preference by clear and	20

29
convincing evidence. Petitioners’ argument to the contrary relies on the following:	1
Grandmother’s testimony that Child “is adamant about no longer wanting to live with	2
[Mother]”; the testimony of Child’s therapist that Child wanted to tell the judge that	3
he wants to live with Petitioners; and the GAL’s report stating that she did not ask	4
Child where he prefers to live “because the answer was obvious.” We agree with	5
Mother that this is insufficient to support a finding that Child does not prefer to live	6
with Mother. First, Grandmother’s self-serving testimony alone cannot establish	7
Child’s preference, especially given her repeated efforts to prevent Mother from	8
having any contact with Child (i.e., by filing the TRO petition and by limiting	9
Mother’s phone calls and visits). Second, the GAL failed entirely to perform her	10
mandatory statutory duty to meet with and interview Child prior to the hearings and	11
to consult with Child and convey his declared position to the court at every hearing.	12
See § 32A-1-7(D), (E). The GAL met Child twice—once with Petitioners at a local	13
restaurant, and once when she “was able to visit with [Child] and . . . Petitioners at	14
their home.” Her report states that Child “is an incredible young person; [he] is highly	15
intelligent and charismatic”; however, this was her first encounter with Child and he	16
“did seem somewhat guarded.” At the second meeting, Child showed the GAL his	17
bedroom and favorite things and indicated that he loves his trampoline, had planted	18
a sunflower garden, and said that he reads every night. The GAL’s report provides no	19
other information about her interaction with Child. Yet the GAL never asked Child	20

30
where he would prefer to live because, she said, “that answer was obvious.” Even if	1
Child’s happiness and health at Petitioners’ may be viewed as supporting this	2
assertion, it does not establish Child’s preference by clear and convincing evidence.	3
In this regard, we note also the GAL’s request for a waiver of Child’s appearance at	4
trial or for an appearance limited to the judge’s chambers, based on the GAL’s	5
representation that she has “spoken to [C]hild and [C]hild does not wish to attend the	6
hearing[,]” is unavailing. The GAL’s request is inconsistent with the testimony of	7
Child’s therapist, upon which Petitioners also rely, who testified that Child wanted to	8
tell the judge that he preferred to live with Petitioners. This inconsistency aside,	9
because the district court granted the request to waive Child’s appearance at the	10
hearing and did not require Child to appear in chambers, Child never conveyed his	11
preference to the court.	12
{52} 	Because Petitioners failed to present sufficient evidence to support the required	13
findings under Sections 32A-5-15(B)(3)(a)-(d), we must conclude that clear and	14
convincing evidence does not support termination of Mother’s parental rights on the	15
basis of presumptive abandonment.	16
Abuse and Neglect	17
{53} 	This regrettable litigation has run its course as a private termination of parental	18
rights under Section 32A-5-15 of the Adoption Act, the terms of which were	19
construed by the district court to allow any person with a legitimate interest in the	20

31
matter to petition to terminate another’s parental rights by proving allegations of abuse	1
and neglect to the district court without any involvement or oversight by CYFD. See	2
§§ 32A-5-15(B)(2), 32A-5-16(A)(3). The Adoption Act’s termination of parental	3
rights provision is basically identical to that in the Abuse and Neglect Act, except it	4
contains no definition of an abused or neglected child, and omits the requirement that	5
CYFD or another appropriate agency make reasonable efforts to “assist the parent in	6
adjusting the conditions that render the parent unable to properly care for the child.”	7
Compare § 32A-5-15(B)(2), with 32A-4-28(B)(2).	8
{54} 	That “reasonable efforts” requirement became part of New Mexico law in	9
response to the enactment of the Adoption Assistance and Child Welfare Act, 42	10
U.S.C. §§ 670-79 (1980, as amended through 2015), which made federal funds	11
available to child welfare programs that make reasonable efforts to (1) prevent the	12
removal of children from their homes, and (2) reunify families whenever possible. See	13
generally In re Kenny F., 1990-NMCA-004, ¶ 15, 109 N.M. 472, 786 P.2d 699 (“The	14
reasonable-efforts requirement is a central feature of recent legislation governing the	15
protection of children.”), overruled on other grounds by In re Adoption of J.J.B.,	16
1993-NMCA-145, ¶ 28, 117 N.M. 31, 868 P.2d 1256, aff’d in part and rev’d in part	17
by In re Adoption of J.J.B., 1995-NMSC-026. The Children’s Code as a whole now	18
echoes that policy: One of its primary purposes is to preserve the unity of the family	19
when doing so is not in conflict with a child’s health or safety. NMSA 1978, § 32A-1-	20

32
3 (2009).	1
{55} 	Thus, procedures for terminating parental rights involving a child who is	2
allegedly abused or neglected normally incorporate strictly enforced safeguards. In	3
order to prevent the unwarranted removal of a child from her home, CYFD is the only	4
entity that can bring a petition for abuse and neglect, see Vescio v. Wolf, 2009-NMCA-	5
129, ¶ 10, 147 N.M. 374, 223 P.3d 371, and may do so only after the department has	6
conducted an investigation, NMSA 1978, § 32A-4-4(A), (D) (2005), and the	7
children’s court attorney has determined that filing the petition is in the best interests	8
of the child, NMSA 1978, § 32A-4-15 (1993). “An individual cannot bring [an] abuse	9
and neglect action.” Vescio, 2009-NMCA-129, ¶ 10.	10
{56} 	After “a child is adjudged neglected [or abused] under the Children’s Code, the	11
Code requires the department to provide services and to undertake efforts to attempt	12
in the reunification of the family and further requires periodic review of the situation.”	13
In re Guardianship of Ashleigh R., 2002-NMCA-103, ¶ 9, 132 N.M. 772, 55 P.3d 984.	14
After the adjudication, CYFD drafts a treatment plan that sets forth “services to be	15
provided to the child and the child’s parents to facilitate permanent placement of the	16
child 	in 	the 	parent’s 	home[.]” 	NMSA 	1978, 	§ 	32A-4-21(B)(10) 	(2009). 	A	17
dispositional hearing then takes place in which the court evaluates, among other	18
things, 	CYFD’s 	efforts 	at 	reunification. 	Section 	32A-4-22(A)(8), 	(9). 	The	19
dispositional hearing is followed by a permanency hearing, where parties may present	20

33
evidence and cross-examine witnesses before a court can change the plan from	1
reunification to placement for adoption with the corresponding termination of parental	2
rights. See NMSA 1978, § 32A-4-25.1 (2009). In short, the path to permanency in an	3
abuse 	and 	neglect 	case—whether 	that 	means 	reunification, 	or 	alternatively,	4
termination of parental rights and adoption—is staked out by a statutory scheme that	5
contemplates CYFD’s involvement at every stage, overseen by the court.	6
{57} 	Before 1993, Petitioners’ abuse and neglect claim likely would have been	7
dismissed as a matter of course because our statutes had only a single provision	8
authorizing termination of parental rights on the basis of abuse and neglect, and it	9
naturally required the court to find “that the conditions and causes of the neglect and	10
abuse are unlikely to change in the foreseeable future despite reasonable efforts by the	11
department or other appropriate agency to assist the parent in adjusting the conditions	12
which render the parent unable to properly care for the child[.]” See NMSA 1978, §	13
32-1-54(B)(3) (1985), repealed by 1993 N.M. Laws, ch. 77, § 234; In re Adoption of	14
J.J.B., 1993-NMCA-145, ¶ 28 (concluding that termination under the abuse and	15
neglect provision would have been improper because “there was no evidence of any	16
efforts by the [d]epartment or other agency to assist [the father] in caring for his son”).	17
In other words, prior to 1993, CYFD (or another appropriate agency) was plainly	18
expected to be involved in every abuse and neglect case. That is not at all surprising	19
in light of the purposes of the Children’s Code and the Department’s responsibility	20

34
under federal law to make reasonable efforts at reunification whenever possible.	1
{58} 	When the Abuse and Neglect Act was enacted in 1993, the Children’s Code was	2
reorganized to include separate acts governing adoptions and abuse and neglect. See	3
1993 N.M. Laws ch. 77; §§ 32A-4-1 to -34; 32A-5-1 to -45. The termination of	4
parental rights provision of Section 32-1-54(B)(3) was split in two. 1993 N.M. Laws,	5
ch. 77, § 122; 1993 N.M. Laws, ch. 77, § 142. It became Section 32A-4-28(B)(2) in	6
the Abuse and Neglect Act, with the reasonable efforts requirement intact, and Section	7
32A-5-15(B)(2) in the Adoption Act, but with no such reasonable efforts requirement.	8
Id. This litigation seems to have proceeded under the assumption that the two	9
provisions now authorize two separate methods of terminating parental rights for	10
abuse and neglect: (1) termination of parental rights involving children in CYFD	11
custody, governed by the Abuse and Neglect Act; and (2) proceedings where private	12
litigants can allege and prove abuse and neglect to terminate one another’s parental	13
rights (without any department involvement or oversight) under the Adoption Act.	14
{59} 	That is a questionable view of the Children’s Code. First, if taken literally, the	15
Adoption Act also purports to authorize CYFD itself to petition for termination of	16
parental rights under Section 32A-5-15(B)(2), see § 32A-5-16(A)(1), which would	17
allow CYFD to circumvent its requirement to make reasonable efforts at reunification	18
in abuse and neglect cases, offending both the funding conditions of federal law and	19
the stated purposes of the Children’s Code. Or CYFD could be quasi-involved, as in	20

35
this case, negotiating safety plans and such, without ever conducting an investigation	1
into the best interests of the child, filing an abuse and neglect petition, or ensuring that	2
its efforts behind-the-scenes do not ultimately result in the unwarranted breakup of a	3
family under cover of the Adoption Act.	4
{60} 	Second, cases where CYFD is not involved at all, and the petition for	5
termination is brought privately under Section 32A-5-16(A)(3), would be ripe for	6
abuse. The entire scheme of the Abuse and Neglect Act, discussed above, is designed	7
to prevent precisely what occurred in this case. An individual’s role in an abuse and	8
neglect case is simply to report the abuse to CYFD, under criminal penalty no less, see	9
NMSA 1978, § 32A-4-3(A) (2005), which then has a responsibility to initiate its	10
investigation in accordance with the Abuse and Neglect Act, following all of the	11
requirements stated therein. We think it highly unlikely that the Legislature intended	12
to create under the Adoption Act a parallel scheme that can effectively remove CYFD	13
from abuse and neglect cases. The Children’s Code is to be read as a whole, so that	14
the legislative intent is properly realized. State v. Adam M., 2000-NMCA-049, ¶ 10,	15
129 N.M. 146, 2 P.3d 883. Moreover, the literal meaning of a statute also does not	16
control “when such an application would be absurd, unreasonable, or otherwise	17
inappropriate.” State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939;	18
see State v. Trujillo, 2009-NMSC-012, ¶ 21, 146 N.M. 14, 206 P.3d 125 (stating that	19
the court will reject the plain meaning “in favor of an interpretation driven by the	20

36
statute’s obvious spirit or reason” if adherence to the literal words would lead to	1
“injustice, absurdity or contradiction” (internal quotation marks and citations	2
omitted)); State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022 (“[The	3
appellate courts have] rejected a formalistic and mechanical statutory construction	4
when the results would be absurd, unreasonable, or contrary to the spirit of the	5
statute.”); Atchison, T. & S. F. Ry. Co. v. Town of Silver City, 1936-NMSC-036, ¶ 13,	6
40 N.M. 305, 59 P.2d 351 (“Canons of construction are but aids in determining	7
legislative intent and are not controlling if they lead to a conclusion, which by the	8
terms or character of the legislation manifestly was not intended.” (citation omitted)).	9
In our view, the only construction of Section 32A-5-15(B)(2) consistent with the rest	10
of the Children’s Code is that the Adoption Act’s abuse and neglect provision refers	11
to abuse and neglect as defined in the Abuse and Neglect Act, and that CYFD’s	12
involvement is required by reference, which in turn requires all the safeguards set	13
forth in the Abuse and Neglect Act, including the requirement that CYFD make	14
reasonable efforts to reunify a child with her natural parent whenever possible. Such	15
a construction is additionally consistent with the constitutional liberty interest at stake	16
when a parent is faced with termination of her right to raise and have a relationship	17
with her child.	18
{61} 	The parties have not briefed the issue and, we need not and do not expand on	19
it any further. Even assuming that private litigants can terminate another’s parental	20

37
rights by proving abuse and neglect in a civil case, the evidence was insufficient to do	1
so in this case. We first discuss the evidence and testimony erroneously admitted at	2
trial and relied upon by the district court in reaching its decision. We then examine the	3
only competent evidence of record and conclude that it was plainly insufficient to	4
terminate Mother’s parental rights on the basis of neglect and abuse.	5
{62} 	“We review the admission of evidence for abuse of discretion.” Couch v. Astec	6
Indus., 2002-NMCA-084, ¶ 8, 132 N.M. 631, 53 P.3d 398. “The district court abuses	7
its discretion when its ruling is based on a misunderstanding of the law.” State v.	8
Phillips, 2006-NMCA-001, ¶ 10, 138 N.M. 730, 126 P.3d 546, overruled on other	9
grounds by State v. Guthrie, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904. The	10
erroneous admission of evidence does not constitute reversible error unless it is	11
apparent that the court considered such evidence in deciding the case. Davis v. Davis,	12
1972-NMSC-045, ¶ 9, 83 N.M. 787, 498 P.2d 674.	13
{63} 	We begin with the GAL’s amended report, which the district court admitted	14
over Mother’s objection and said it would consider in making its decision. The	15
admission of the GAL’s preliminary and amended report was problematic in three	16
critical ways. First, the initial report was hand-delivered to Mother’s counsel on July	17
15, 	2014, 	the 	first 	day 	of 	trial. 	Mother’s 	counsel 	clearly 	did 	not 	have 	an	18
adequate—indeed any—opportunity to adequately review the report before the	19
commencement of the hearing that day. Next, the amended GAL report, without prior	20

3Further complicating matters, Mother’s counsel objected to the admission of	16
the GAL’s amended report at the conclusion of the July 25, 2014 hearing. The district	17
court accepted the report into evidence but then set a hearing ten days later for Mother	18
to respond to the GAL’s allegations and hearsay reports. The court made no	19
determination of admissibility prior to accepting the report and then shifted the burden	20
to Mother to rebut the allegations in the report and CYFD notes. There is no legal	21
justification for the court’s actions in this regard.	22
38
notice of the amendment, was hand-delivered to Mother’s counsel at the beginning of	1
the second day of trial on July 25, 2014. Although Mother’s counsel did not argue	2
prejudice based on the late filing and delivery of these reports, we are troubled that	3
this might well have impacted his ability to adequately prepare Mother’s defense. See	4
Lorena R., 1999-NMCA-035, ¶ 25 (stating that parents have a due process right to	5
participate meaningfully in termination of parental rights cases, including the right to	6
review and challenge the evidence presented against them). Notice issues aside, the	7
GAL’s amended report was improperly admitted into evidence.	8
{64} 	That report, while substantially similar in substance to the original report filed	9
July 15, 2014, was amended by attaching eighteen pages of allegations against Mother	10
from CYFD’s files. Our close review of these attachments reveal that many of the	11
allegations were anonymous, most were found by CYFD to be unsubstantiated, and	12
all were hearsay statements. The district court overruled Mother’s objections that the	13
report and attachments contained hearsay and that the GAL was required to offer	14
witnesses to testify about the contents of the documents. 3 The court ruled that the	15
report and file excerpts were admissible under Rule 1-053.3(F). As discussed above,	16

39
the court erred as a matter of law in relying on Rule 1-053.3. Moreover, Petitioners	1
cite no case holding that inadmissible hearsay testimony is admissible simply because	2
it is proffered by a GAL, let alone in a proceeding implicating a parent’s fundamental	3
due process rights. A GAL is not legally authorized to circumvent applicable rules of	4
evidence by attaching inadmissible hearsay documents to a report. The district court	5
should not have admitted the GAL’s amended report or relied upon it in determining	6
whether to grant the petition.	7
{65} 	The failure of witnesses to timely provide documents was not limited to the	8
GAL. CYFD worker Kurt Smith, who had no personal knowledge of the case, had	9
never even seen the safety plan prior to the trial and was only “vaguely familiar” with	10
Mother, was allowed to testify about CYFD records pertaining to Mother. Mother’s	11
counsel had served subpoenas for the records prior to trial, but they were not	12
produced. Yet the district court overruled Mother’s counsel’s objection and allowed	13
Smith to testify about notes and other written records containing numerous	14
inadmissible hearsay statements. Similarly, Mother’s attorney subpoenaed and did not	15
receive the treatment notes of Child’s counselor, Mary Carafelli. In fact, Carafelli did	16
not bring those notes to court but produced only a file containing a handful of forms.	17
The district court overruled counsel’s objection that Carafelli’s refusal to produce her	18
file should bar her testimony and ordered Carafelli to produce her file within a week.	19
It is unclear whether she ever complied with that order, but no such documents appear	20

40
in the record. In our view, with nothing in the record to show otherwise, the district	1
court’s rulings denied Mother her rights to confront and cross-examine the witnesses	2
against her. See Maria C., 2004-NMCA-083, ¶ 34 (holding that “parents have a due	3
process right to fair notice and an opportunity for meaningful participation . . . ,	4
including the right to present evidence and cross[-]examine witnesses”). Under the	5
circumstances presented here, the district court should not have allowed or relied on	6
the testimony of Kurt Smith and Mary Carafelli.	7
{66} 	Excluding consideration of the foregoing inadmissible evidence, Petitioners’	8
evidence in support of allegations of abuse and neglect and that this alleged	9
circumstance was unlikely to change in the foreseeable future can be summarized as	10
follows: Mother’s living environment was dirty, in disarray, and with bed bugs “all	11
over,” Child was dirty, hungry, withdrawn and scared, behind in school, exposed to	12
domestic violence, and traumatized; Mother was also dirty, her hair was greasy, and	13
she smelled of alcohol and body odor; Mother’s apartment was near an empty lot that	14
was full of needles, glass, liquor bottles, debris, sleeping bags, and mattresses; Mother	15
was destructive and violent; and Mother drank almost every day and sometimes used	16
drugs.	17
{67} 	We accept for the purposes of our discussion that this evidence, if established,	18
might provide a basis for finding abuse and neglect. The question becomes whether,	19
to the extent that the alleged circumstances truly exist, they demonstrate clearly and	20

41
convincingly that Mother’s condition warranted a termination of her parental rights.	1
{68} 	We first turn to Mother’s housing. The chief complaints from Petitioners were	2
that Mother’s homes were filthy and infested with bed bugs, and that she lived near	3
an empty lot filled with trash and drug paraphernalia. Although one’s housekeeping	4
habits could form the basis of a legitimate petition for neglect, there is no evidence in	5
the record that Mother’s situation was seriously detrimental to Child, and no evidence	6
that Child had ever been harmed in Mother’s household. That Mother’s cleanliness	7
did not meet Petitioners’ approval cannot be the basis for terminating Mother’s	8
parental rights. See State ex rel. Children, Youth & Families Dep’t v. Patricia H.,	9
2002-NMCA-061, ¶ 21, 132 N.M. 299, 47 P.3d 859 (stating that “[t]he fact that a	10
child might be better off in a different environment is not a basis for termination of	11
parental rights in this state” (internal quotation marks and citation omitted)). Nor are	12
we prepared to say that the fact that Mother’s previous apartment was near an empty	13
lot with trash and possible drug paraphernalia constituted neglect or abuse. After all,	14
Mother could hardly be expected to obtain an apartment that was not “low income”	15
given the amount of her monthly SSDI. Finally, we note that Petitioners provided no	16
evidence at the time of trial that Child would not be safe in Mother’s home.	17
{69} 	To the extent that Petitioners contend that Mother was unfit because Child was	18
withdrawn, scared, and traumatized, there was no competent evidence to support these	19
assertions. There was no evaluation or diagnosis of Child (or of Mother), and scant	20

42
testimony concerning Mother’s interaction with Child. Patty R. testified that Mother	1
was “a little bit more talkative” with Child than she was with her daughter. Lee	2
Carrizales, a friend of Mother’s, testified that Mother loves Child “in her own way,”	3
but she did not act lovingly or patiently with her children. Even if we agree that	4
Mother did not interact with Child at a level that would ensure that Child necessarily	5
will experience maximum emotional development, there was insufficient evidence to	6
satisfy the strict requirements for termination of parental rights.	7
{70} 	We briefly address the allegations of drug and alcohol use and Mother’s alleged	8
violent tendencies. Lee Carrizales testified that Mother drank alcohol “pretty much	9
every day” and that she used drugs. Carrizales’ testimony regarding Mother’s alcohol	10
use was based on her observations in the summer of 2009 when Mother, her boyfriend	11
and the children lived with Carrizales. She said that she knew Mother used street	12
drugs “because they would discuss it” and because she found a pipe in her shed.	13
Although Mother testified that she used to drink, she said that she was sober and no	14
longer drank alcohol. Doug Simon, who had been in a relationship with Mother more	15
than thirteen years earlier, testified that their relationship was “[a]t some points . . .	16
loving and at others, highly toxic, volatile, destructive.” Yet, Simon allowed Mother	17
to raise their daughter until Mother sent their daughter to live with Simon pursuant to	18
the safety plan. In any event, the record does not provide evidence that supports “an	19
abiding conviction” in our mind, see In re Termination of Parental Rights of Eventyr	20

43
J., 1995-NMCA-087, ¶ 2, that Mother was drinking or using drugs at the time of trial,	1
or that she was emotionally unstable at the time of trial, let alone that these conditions	2
would continue into the foreseeable future.	3
{71} 	Perfection in parenting is not attainable, but neither is it required by law. Under	4
the circumstances, Mother’s decision to have Child reside in a relative’s home where	5
he would receive adequate care does not evidence a failure to provide proper and	6
necessary support for Child constituting abuse and neglect but rather concern for	7
Child. Petitioners have failed to meet their burden to demonstrate by clear and	8
convincing evidence that termination of Mother’s parental rights was warranted.	9
{72} 	We recognize that our decision may have significant emotional consequences	10
for Child who, by now, has lived with Petitioners for over three years. But applicable	11
law does not permit the termination of parental rights where, as here, the district court	12
applied the law incorrectly and failed in its duty to ensure that the proceedings were	13
conducted with scrupulous fairness. Consequently, we reverse.	14
CONCLUSION	15
{73} 	For the foregoing reasons, we reverse the judgment terminating Mother’s	16
parental rights to Child, and void the proposed adoption.	17
{74} 	IT IS SO ORDERED.	18

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3

cms

me?)

WE CONCUR:

LINDA M. VANZI, Judge

JONATHANB. SUTIN, Judge

J. MILES HANISEE, Judge