May 26, 2009 – State of New Mexico ex rel. Children, Youth & Families Department v. Cosme V., No. 28,328

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: May 26, 2009
No. 28,328
STATE OF NEW MEXICO
ex rel. CHILDREN, YOUTH
AND FAMILIES DEPARTMENT,
Petitioner-Appellee,
v.
COSME V.,
Respondent-Appellant,
and
EMMA M. and ORLANDO M.,
Respondents.
In the Matter of JOHNNY V. and
EVONNE V., Children.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
John J. Romero, District Judge
Simon Romo, Chief Children’s Court Attorney
Daniel J. Pearlman, Children’s Court Attorney
Santa Fe, NM
for Appellee

Caren I. Friedman
Santa Fe, NM
for Appellant
Joshua A. Spencer
Albuquerque, NM
Siobhan Nada
Rio Rancho, NM
Guardians ad Litem

OPINION
SUTIN, Judge.
{1} 	Cosme V. (Father) appeals from an adjudication of neglect with respect to
Johnny V. and Evonne V. (the Children). He raises two issues, contending that the
district court erred in denying his motion to dismiss and challenging the sufficiency
of the evidence to support the adjudication. We held oral argument pursuant to our
expedited bench decision program, but removed the case from that program when it
was determined that additional time was needed in order to render a reasoned decision.
This case was then given the highest priority in order to render a decision at the
earliest possible date, pursuant to In re Court of Appeals Caseload, No. 1-21, ¶ 6
(filed Oct. 17, 1995), reprinted as Appendix to State v. Curley, 1997-NMCA-038, 123
N.M. 295, 939 P.2d 1103. For the reasons that follow, we affirm.
BACKGROUND
{2} 	The Children, Youth and Families Department (the Department) has a lengthy
history of involvement with the Children prior to the events that led to the
Department’s neglect/abuse petition. The first referral occurred in mid-2002, when
Johnny was about fifteen months old. Due to Emma M.’s (Mother’s) stated inability
to care for Johnny, the Department investigated alternative custody arrangements.
The Department visited the home in which Father and his mother were living, found

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the home to be appropriate, and released Johnny to reside with Father.
{3} 	The Department received the second referral in April 2003, after the birth of
Evonne. During the course of its investigation, the Department discovered that Father
had transferred care of Johnny back to Mother and that an open case for child support
enforcement was pending against Father. The Department attempted to contact Father
without success. During the course of its investigation of Mother, the Department
observed that the Children were living in a filthy home without adequate food or
clothing, and the Department was informed by Mother’s landlord that the family was
at risk for eviction. Ultimately, the family was referred to community agencies.
{4} 	A year later, in April 2004, the Department received the third referral. Once
again, there was no food in Mother’s house for the Children, and the Children were
inadequately clothed. In addition, the Children had not been kept up-to-date on their
shots, resulting in medical neglect. Further, the two adult care givers, Mother and
Orlando M. (Stepfather), admitted to smoking marijuana. The Department did speak
to Father during the time period associated with this third referral in April 2004.
Father stated that he had no concerns regarding the care of the Children.
{5} 	The fourth referral came in November 2005, when Mother gave birth to a drug-
exposed child. The Department’s investigation also revealed medical concerns with

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respect to Evonne and the fact that Mother failed to take Evonne to scheduled medical
appointments requested by the Department. The Department obtained information
regarding the physical location of Father’s residence from Mother. 	At the
adjudication hearing, the Department was unable to identify the location provided by
Mother because the Department could not remember the address. On December 26-
30, 2005, the Department made four attempts to contact Father, visiting the address
provided by Mother and leaving a card and a letter. 	The letter indicated that the
Department was in the middle of an investigation involving the Children, that there
was a need for his input for possible placement, and that there was a need to talk about
the safety of the Children. The Department was unable to make contact with Father
and no response was received with regard to the card or letter. 	The family was
referred to the Department’s in-home services.
{6} 	On June 7, 2006, the Department received the fifth referral after Mother gave
birth to another drug-exposed child. 	By this time, Mother had given birth to five
children. The Department began another welfare check that revealed concerns about
inadequate shelter, as well as lack of supervision due to substance abuse by Stepfather.
{7} 	Contemporaneous to the referral in June 2006, Father filed a petition against
Mother in district court seeking an order of protection from domestic violence. In the

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petition, Father alleged that Mother had physically abused Evonne and that Mother
had become verbally abusive and threatening to Father when he confronted her.
Additionally, Father alleged that Mother had a drug problem to which the Children
were exposed. In a subsequent order of dismissal, Father was advised to address the
child custody issues in the proper court and to contact the Department if he believed
the Children were in danger. 	Father never made a referral to the Department
regarding his belief that the Children were in danger.
{8} 	As a result of these problems, in June 2006, the Department started pushing
Mother to convince Father to approach the Department. 	On June 14, 2006, a
Department investigative worker spoke with Father by telephone and inquired whether
he could care for the Children. Father indicated that he was not in a position to be
able to care for them. 	Mother and Father had a discussion and together they
ultimately agreed that the Children would reside in Albuquerque with a “fictive kin,”
Joe Ann M. a/k/a Joanna M. (fictive kin). The Department approved the voluntary
fictive kin arrangement for the Children.
{9} 	Subsequent to the fifth referral, the Department took Mother’s three younger
children into custody. The Department placed Mother’s three younger children with
fictive kin. As part of the treatment plan for the three younger children, on February

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10, 2007, the Department took the three younger children from fictive kin’s home and
returned them to Mother’s custody for a trial home visit. 	The Children were also
returned to reside in Mother’s custody during the trial home visit. 	Less than two
months later on April 4, 2007, the trial home visit was disrupted. 	Reasons for the
disruption included that Mother and Stepfather had stopped submitting to random
urinalysis and that they had stopped participating in their treatment plan for the three
younger children. The Department learned of an earlier domestic violence incident
between Mother and Stepfather. The police intervened and Mother was arrested on
an outstanding warrant. The Children, along with Mother’s three younger children,
went to Espanola with Stepfather. Upon Mother’s release from jail, all five children
were returned to fictive kin.
{10} 	On April 9, 2007, a team decision making meeting (TDMM) was held at the
Department with Mother, Stepfather, and fictive kin regarding the trial home visit
being disrupted and the Department’s plan for the continued care of the three younger
children. At the adjudicatory hearing, the Department social worker stated that she
believed the Department had Father’s telephone number and that Father was contacted
and invited to the TDMM, “because Johnny . . . and Evonne . . . also returned to
[fictive kin’s] home.” 	Father did not attend the TDMM. 	At the TDMM, the

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Department stated that Mother had ceased participating in random urinalysis,
counseling, and treatment services. 	In addition, it came to light that one of the
Children alleged that Mother was the perpetrator of the new domestic violence
incident. At this meeting, Mother became enraged and stated that she was going to
remove the Children from the home of fictive kin and that she was unwilling to renew
the power of attorney that she had previously executed to facilitate the voluntary
fictive kin arrangement for the Children, who were not in Department custody. Before
leaving the TDMM meeting, Mother refused to provide any of 	Father’s contact
information to the Department despite the statement made by the fictive kin that
Mother was taking the Children to Father’s house for weekend visits.
{11} 	After a federal review on May 15, 2007, the Department made the decision to
go ahead and file for custody of the Children because Mother’s parting statement at
the TDMM was that she was going to go get the Children from fictive kin’s home.
The Department filed the neglect/abuse petition and corresponding affidavit (original
petition) against Mother, Stepfather, and Father on May 15, 2007. On May 25, 2007,
the Department filed an amended neglect/abuse petition and corresponding amended
affidavit (amended petition) against Mother, Stepfather, and Father. 	Mother and
Stepfather entered no contest pleas regarding the allegations in the amended petition.

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The Children remained with fictive kin until July 10, 2007.
DISCUSSION
Adequacy of the Petition
{12} 	The factual allegations in the original petition and amended petition only
identify the actions of Mother and Stepfather. Father moved to dismiss the petition
for failure to state a claim based on the absence of specific allegations of abuse or
neglect on his part. See generally Rule 10-322(B)(6) NMRA (authorizing the filing
of motions to dismiss for failure to state a claim in abuse and neglect proceedings).
After hearing argument, the district court denied the motion. Father challenges this
ruling on appeal.
{13} 	“We review the denial of a motion to dismiss de novo because such a motion
tests the legal sufficiency of the allegations.” 	Padilla v. Wall Colmonoy Corp.,
2006-NMCA-137, ¶ 7, 140 N.M. 630, 145 P.3d 110.
In determining whether a complaint states a claim upon which
relief can be granted, we assume as true all facts well pleaded. In
addition, a motion to dismiss a complaint is properly granted only when
it appears that the plaintiff cannot recover or be entitled to relief under
any state of facts provable under the claim. Only when there is a total
failure to allege some matter which is essential to the relief sought
should such a motion be granted. Moreover, a motion to dismiss for
failure to state a claim is granted infrequently.
Las Luminarias of the N.M. Council of the Blind v. Isengard, 92 N.M. 297, 299-300,

8
587 P.2d 444, 446-47 (Ct. App. 1978) (citations omitted).
{14} 	The abuse and neglect petition filed by the Department in this case is in the
format approved by the New Mexico Supreme Court. 	See Rule 10-312(A) NMRA
(“Petitions or amended petitions alleging abuse or neglect shall be in a form approved
by the Supreme Court.”); Form 10-454 NMRA. The petition provides that Father is
“alleged to have neglected” the Children, as specifically defined in NMSA 1978,
Section 32A-4-2(E)(2) (1999). 	By virtue of this statutory reference, the petition
clarifies that the allegation of neglect is based upon the Children’s lack of “proper
parental care and control or subsistence, education, medical or other care or control
necessary for [their] well-being because of the faults or habits of [Father] or the failure
or refusal of [Father], when able to do so, to provide them.” Id. Hence, the nature of
the claim is stated under the test in Las Luminarias, 92 N.M. at 299-300, 587 P.2d at
446-47.
{15} 	As the factual predicate for the allegation of neglect, the petition describes the
history of referrals and departmental involvement from June 2006 forward. Mother’s
and Stepfather’s drug abuse, the unsatisfactory condition of the home in which the
Children were living with Mother and Stepfather, and the ensuing voluntary
placement with fictive kin are set forth in the petition. 	Mother’s and Stepfather’s

9
subsequent failure to participate in the court-ordered treatment plan, Mother’s arrest
for domestic violence, the family’s eviction, and her announcement in April 2007 that
she intended to take the Children from their placement with fictive kin are also
described in the petition. Additionally, the amended affidavit for ex parte custody
order details the Department’s history of involvement with the Children from the time
of the first referral in 2002 onward.
{16} 	Although the petition unquestionably focuses on Mother in describing the basis
for the allegations of neglect, we nevertheless conclude that the petition adequately
states a claim against Father. “Under our rules of notice pleading, it is sufficient that
defendants be given only a fair idea of the nature of the claim asserted against them
sufficient to apprise them of the general basis of the claim; specific evidentiary detail
is not required at this stage of the pleadings.” Petty v. Bank of N.M. Holding Co., 109
N.M. 524, 526-27, 787 P.2d 443, 445-46 (1990) (internal quotation marks omitted).
A fair reading of the petition reveals that many of the Children’s basic needs had not
been met throughout the years preceding the fictive kin placement, and in light of the
disintegration of that arrangement, the Children were once again lacking adequate
supervision and care, as well as a safe and stable home environment. This state of
affairs is sufficient to state a claim against Father, in light of Father’s continuing legal

10
duty to care for the Children. See generally State ex rel. Children, Youth & Families
Dep’t v. Hector C., 2008-NMCA-079, ¶ 23, 144 N.M. 222, 185 P.3d 1072
(recognizing a father’s “continuing duty to care for the children” and that failure to
make arrangements for proper care of the children may support an adjudication of
neglect).
{17} 	In closing, we note that the petition is less than ideally informative because it
does not specifically set out Father’s actions or failures to act. Nevertheless, we see
no basis on which to hold that the court erred in denying Father’s motion to dismiss,
although we caution that abuse and neglect petitions which fail to inform respondents
of the basis of claims against them can be subject to dismissal. See generally State ex
rel. Children, Youth & Families Dep’t v. Kathleen D.C., 2007-NMSC-018, ¶ 12, 141
N.M. 535, 157 P.3d 714 (observing that “at a minimum, due process in neglect and
abuse proceedings requires timely notice reasonably calculated to inform the person
concerning the subject and issues involved in the proceeding” (internal quotation
marks and citation omitted)).
Evidence Implicating Father Was Clear and Convincing
{18} 	A neglected child is statutorily defined, in pertinent part, as one

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who 	is 	without 	proper 	parental 	care 	and 	control 	or 	subsistence,
education, medical or other care or control necessary for the child’s
well-being because of the faults or habits of the child’s parent, guardian
or custodian or the failure or refusal of the parent, guardian or custodian,
when able to do so, to provide them[.]
NMSA 1978, § 32A-4-2(E)(2) (1999). To find that a child was neglected, “the district
court must have been presented with clear and convincing evidence of [a parent’s]
culpability through intentional or negligent disregard of [the c]hild’s well-being and
proper needs.” 	State ex rel. Children, Youth & Families Dep’t v. Amanda H.,
2007-NMCA-029, ¶ 21, 141 N.M. 299, 154 P.3d 674.
{19} 	Notwithstanding the foregoing demanding standard of proof, this Court cannot
re-weigh the evidence. State ex rel. Children, Youth & Families Dep’t v. Frank G.,
2005-NMCA-026, ¶ 38, 137 N.M. 137, 108 P.3d 543, aff’d by In re Pamela A.G.,
2006-NMSC-019, 139 N.M. 459, 134 P.3d 746. 	The district court is in a better
position to assess the testimony and credibility of witnesses, and “our scope of review
is a narrow one.” In re Termination of Parental Rights of Eventyr J., 120 N.M. 463,
466, 902 P.2d 1066, 1069 (Ct. App. 1995). We view the evidence in the light most
favorable to the district court’s decision and to the prevailing party in determining
whether a party has met the clear-and-convincing standard. Frank G., 2005-NMCA-
026, ¶ 38; In re Melissa G., 2001-NMCA-071, ¶ 12, 130 N.M. 781, 32 P.3d 790.

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“[W]e indulge all reasonable inferences in support of the [district court’s decision] and
disregard all inferences or evidence to the contrary.” Melissa G., 2001-NMCA-071,
¶ 12; State ex rel. Dep’t of Human Servs. v. Williams, 108 N.M. 332, 334-35, 772 P.2d
366, 368-69 (Ct. App. 1989).
Even in a case involving issues that must be established by clear and
convincing evidence, it is for the finder of fact, and not for reviewing
courts, to weigh conflicting evidence and decide where the truth lies.
We defer to the trial court, not because it is convenient, but because the
trial court is in a better position than we are to make findings of fact and
also because that is one of the responsibilities given to trial courts rather
than appellate courts. Our responsibility is to review for reversible error.
Williams, 108 N.M. at 335, 772 P.2d at 369 (citation omitted).
{20} 	The district court could determine by clear and convincing evidence that the
Children were without proper parental care and control necessary for the Children’s
well-being because of the faults or habits of both Father and Mother and because of
the failure and refusal of both parents, when able to do so, to provide that necessary
care and control. The Department appropriately named both parents in the abuse and
neglect proceeding even though the facts on which the petition was based focused on
the faults or habits of Mother.
{21} 	The district court could reasonably infer and conclude statutory parental neglect
implicating Father. 	Johnny was born in early 2001 and Evonne was born in early

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2003. When the Children were very young, their well-being, needs, and proper care
were not seen to by Father or Mother. Father knew about Mother’s propensities for
drug use and domestic violence. 	Father knew or should have known of the
Department’s involvement during mid-2002 until the 2007 petition. In August 2002,
Mother was referred to the Department for services, and the Department removed
Johnny from Mother’s custody because he was left without parental supervision. By
voluntary placement, Johnny then resided with Father and Father’s mother for a time
beginning in August 2002, and the Department closed its investigation. In April 2003,
the Department learned that Father, without notifying the Department, had returned
Johnny to Mother, after which the Department unsuccessfully attempted to contact
Father. The Department contacted Father related to the April 2004 referral involving
the Children, and Father indicated that he had no concerns regarding the care of the
Children. By June 2006, Mother had given birth to three more children, two of whom
were drug-exposed, and Father knew or should have known that the Department had
taken custody in a formal proceeding of Mother’s three children who were younger
than Johnny and Evonne. From the foregoing historical circumstances and from his
agreement with Mother to have the Children reside with fictive kin, where Mother’s
three other children had been placed by the Department, Father was aware or should

14
have been aware of Mother’s faults, habits, and violent propensities. Further, he was
aware or should have been aware that the Children’s needs were not being properly
met by Mother.
{22} 	In connection with another Department investigation that revealed neglect
relating to the Children in November 2005, the Department went to Father’s home
four times in December 2005, and Father failed to respond to the multiple messages
left by the Department that it was attempting to contact him about the Children.
Father alleged in a June 2006 court-filed petition that Mother had physically abused
Evonne, had verbally abused Father, had threatened Father, and further alleged that
Mother had a drug problem to which the Children were exposed. The district court
in that domestic relations matter ordered Father to report future concerns regarding
abuse to the Department.
{23} 	In July 2006, after Mother had given birth to her second drug-exposed baby,
and after receiving another neglect referral for all of the children living with Mother
and Stepfather, the Department was successful in contacting Father. When asked by
the Department if the Children could live with him, Father said they should live with
fictive kin, that “he did not have concerns about where the [C]hildren were living,”
and that he was not “in a position to be able to care for them.”

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{24} 	Since Father was still visiting with the Children, Father was likely aware and
certainly should have been aware of the two-month trial home visit that occurred
during February, March, and early April 2007. Father was invited by the Department
to the TDMM which occurred five days after the trial home visit had been disrupted,
and all five children had been returned to fictive kin. 	Father was invited by the
Department because the Children had been returned to fictive kin, but Father did not
attend the TDMM. Even if Father believed the Children were properly cared for by
fictive kin, he had a parental obligation to know and address any concerns the
Department may have had with regard to the Children.
{25} 	There exists no evidence that at anytime during 2002 to the 2007 petition Father
ever initiated contact with the Department. From the point Father gave Johnny back
to Mother in early 2003 to May 2007, Father did not request the Department to have
the Children reside with him instead of Mother or others. Instead, Father was satisfied
to have the Children live with Mother or in a voluntary residency with fictive kin.
Furthermore, except for Father’s June 2006 domestic violence petition alleging
Mother’s abuse of Evonne, nothing in the record gives a hint of any particular concern
on Father’s part relating to the Children—even in connection with his visits with the
Children and contact on those occasions with Mother or fictive kin.

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{26} 	Father lived with his mother. 	He was unemployed and his only income
consisted of social security disability benefits of $640 a month. 	He told the
Department that the benefits were for a mental health condition. 	His mother was
working full time. In 2003, there was a concern that Father was delinquent with child
support. He kept no record of the support payments he claims to have made. Father
engaged in only once or twice a month visitation with the Children, and nothing in the
record indicates that he made an effort to have the Children live with him.
{27} 	Father appears to have been satisfied that he did not have to take any significant
role, much less an active one, in regularly assuring that the Children’s “well-being and
proper needs” were met. Amanda H., 2007-NMCA-029, ¶ 21. Father did very little
to fulfill his parental obligations. As of the 2007 petition, Father knew or should have
known from the long history of which he was aware that he and Mother were failing
in their parental responsibility, that the Children’s well-being and proper needs were
not consistently assured, and that the Children did not have a long-term, stable future
if the historical circumstances continued.
Father Should be a Respondent in This Case
{28} 	This case raises a question as to the extent to which a father with whom his
neglected children do not reside can escape the consequence of a neglected-child

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determination under the foregoing circumstances. 	See generally In re Adoption of
J.J.B., 117 N.M. 31, 38, 868 P.2d 1256, 1263 (Ct. App. 1993) (“Where the parents are
separated . . . in order to hold [the f]ather responsible for the neglect of the parent
having actual physical custody of the child[ren], [the Department] must establish that
[the f]ather knew or should have known of the condition of the child[ren.]”), aff’d in
part, rev’d in part, 119 N.M. 638, 894 P.2d 994 (1995); State ex rel. Dep’t of Human
Servs. v. William M., 2007-NMCA-055, ¶ 63, 141 N.M. 765, 161 P.3d 262 (rejecting
the father’s claim that he was unaware that the mother was an unsuitable caretaker
based on evidence of the mother’s well-documented history of drug use and repeated
neglected-children referrals).
{29} 	There is no dispute that the Children were neglected children. 	Under the
circumstances here, Father as well as Mother should be named, served, and shown to
be responsible for that neglected-children status. There is no evidence that Father ever
inquired, much less stayed in regular or close contact with the Department with
respect to the well-being of the Children in Mother’s home. Yet Father certainly had
every opportunity to do so. Other than visit the Children off and on and provide some
undocumented child support, Father made little effort to carry out his responsibility
as a parent to care for the Children. Father could hardly have been oblivious to the

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history and circumstances created by Mother’s abuse and neglect. He cannot claim
ignorance of potential problems.
{30} 	The evidence in this case is sufficient to bring Father within a neglected-
children determination even if he may not have been specifically and timely apprised
that Mother threatened to revoke her power of attorney and to retrieve the Children
from fictive kin. We agree with the district court’s view that “it is incumbent on both
parents to continue to be parents. Just because a child is not living in your home all
the time does not absolve you of the legal responsibility to be vigilant, to be involved
and aware of what’s taking place with your children.” 	See State ex rel. Dep’t of
Human Servs. v. Peterson, 103 N.M. 617, 622, 711 P.2d 894, 899 (Ct. App. 1985)
(“Although the evidence in this case was directed primarily at the mother’s neglect
after she and the children moved . . ., it is also evidence of past neglect by the father.
A father may not delegate parental obligations to the mother and be held harmless
when she neglects these obligations.” (citation omitted)).
{31} 	We see no reason why both parents in this case should not be respondents and
be required to participate in the structured and protective court process involving
treatment plans and judicial review looking toward permanency through reunification.
We are unable under the circumstances in this case to agree with the view that the only

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neglect of the Children that is relevant insofar as Father is concerned is that which
may have occurred or was learned by the Department precisely on April 4 and perhaps
on April 9, 2007—events that Father presumably could not have specifically foreseen.
That view, while perhaps technically permissible, mistakenly overlooks Father’s long
history of knowledge and of what Father should have known, and overlooks Father’s
complacency and failure to be pro-actively involved.
{32} 	Nor does that view fit within the purpose of the abuse and neglect statutory
scheme. In Article 4 (Child Abuse and Neglect) of the Children’s Code, the principal
focus of an abuse and neglect adjudication is on whether a child is a neglected child.
See, 	e.g., 	§ 	32A-4-2(E)(2) 	(definition 	of 	neglected 	child); 	NMSA 	1978,
§ 32A-4-20(G) (2005) (stating that after an adjudicatory hearing, the court is to make
findings on whether the child is a neglected child); NMSA 1978, § 32A-4-22(B)
(2005) (stating that if a child is found to be neglected, the court may enter its judgment
to protect the welfare of the child by several different dispositions); § 32A-4-22(C)
(stating that if a child is found to be neglected, the court may order the child’s parent
to cooperate with any treatment plan approved by the court); NMSA 1978,
§ 32A-4-25.1(B) (2005) (stating that at the conclusion of a permanency hearing, the
court shall order a reunification or placement plan for the child). 	Of course,

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neglected-child status results from parental failure. 	And parents are to be given
notice, named as parties, and served with the petition, so that they have the
opportunity 	to 	contest 	a 	neglected-child 	determination, 	and 	so 	that 	once 	a
neglected-child determination is made, they can have the opportunity to seek
reunification or proper placement of the child under court order. See § 32A-4-25.1
(relating to permanency hearings).
{33} 	Nevertheless, we see nothing in Article 4 that expressly forbids or should be
construed as to preclude naming both parents in a petition as respondents where, as
in the present case, neglect occurs over time but it is the custodial parent’s latest
conduct that triggers an abuse and neglect petition much like the proverbial straw that
broke the camel’s back. 	The district court has jurisdiction “over both parents to
determine the best interest of the child and to decide all matters incident to the court
proceedings.” NMSA 1978, § 32A-1-8(C) (2005). It seems entirely appropriate for
the Department in the present case to have made both parents respondents in the
proceeding and to seek their active and serious participation in treatment plans and
other aspects of the proceedings.
{34} 	We fully understand that there will be circumstances in which responsible
parents, whether they live apart or not, may for appropriate reasons have one or more

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of their young children reside for periods of time with relatives or perhaps even
friends. We understand that in such instances there may be no reason for Department
intervention. 	See generally In re Guardianship of Ashleigh R., 2002-NMCA-103,
¶ 20, 132 N.M. 772, 55 P.3d 984 (“Evidence that a parent left a child in the care of
others is not necessarily sufficient to establish neglect, as long as the parent continues
to insure that the caretaker is properly providing for the children’s needs. A contrary
rule would have the unfortunate effect of discouraging parents from seeking assistance
when 	they 	find 	themselves 	unable 	to 	fully 	discharge 	the 	responsibilities 	of
parenthood.” (citation omitted)). However, the present case does not involve such an
arrangement. 	Under certain circumstances, parents cannot demand parental rights
without pro-actively fulfilling their obligations as parents to care for their children.
Father did not pro-actively fulfill his obligations in this case over a substantial period
of time, and there came a point when the Department appropriately intervened, and
sought and obtained a neglect adjudication implicating Father. 	Cf. Hector C.,
2008-NMCA-079, ¶ 23 (recognizing a father’s “continuing duty to care for the
children” and that failure to make arrangements for proper care of the children may
support an adjudication of neglect). The neglect determination as to Father was based
on clear and convincing evidence and was proper. See William M., 2007-NMCA-055,

22
¶¶ 61-63 (holding that evidence was clear and convincing to establish neglect where
the father was not involved in the children’s lives, failed to provide a safe and stable
home, left the children’s home when they were very young, and failed to provide for
the children or protect them from the mother’s neglect both prior to and during his
incarceration).
In Regard to the Dissent
{35} 	We believe that the standard for clear and convincing evidence set out earlier
in this opinion and that which is set out in the dissent have been met. Particularly as
to the standard relied on by the dissent, we have no doubt that, given the
circumstances in this case, along with the purposes of the Children’s Code and the
abuse and neglect process, the scale tilted in the affirmative in the district court
judge’s mind and, as the fact finder, the judge was “left with an abiding conviction
that the evidence [was] true.” 	State ex rel. Children Youth & Families Dep’t v.
Shawna C., 2005-NMCA-066, ¶ 7, 137 N.M. 687, 114 P.3d 367 (internal quotation
marks and citation omitted).
{36} 	Our view of whether Father was properly implicated in neglect and the view of
the dissent reflect a difference in approach in regard to the purposes of the Children’s
Code and the abuse and neglect process. We think that, under circumstances such as

23
those in this case, both parents should be brought into the neglect adjudication, and
clear and convincing evidence exists to permit an adjudication that implicates Father
at the neglect-adjudication stage. 	The dissent sees no circumstance, historical or
otherwise, that can properly be considered on the issue of implication of Father in the
neglect and that the focus can only be on the circumstances that immediately surround
the event that triggered the neglect petition.
{37} 	This Court’s primary focus, however, must be on the purposes of the Children’s
Code and the abuse and neglect process and on the abuse and neglect scheme as a
whole. The first and foremost purpose of the Children’s Code is “to provide for the
care, protection and wholesome mental and physical development of children coming
within the provisions of the Children’s Code and then to preserve the unity of the
family whenever possible.” 	NMSA 1978, § 32A-1-3(A) (1999) (amended 2009).
“The child’s health and safety shall be the paramount concern.” Id. “[T]he welfare
of the children is paramount.” State ex rel. Children, Youth & Families Dep’t v. A.H.,
1997-NMCA-118, ¶ 10, 124 N.M. 244, 947 P.2d 1064. 	The abuse and neglect
statutory scheme purposefully sets out a continuum of processes to preserve the unity
of the family where possible, to assure the health and safety of the children, and to
engage the parents in those processes.

24
{38} 	With the foregoing purposes in mind, the overall legislative intent seems
obvious. Parents, both of them, are responsible, and until formally relieved remain
responsible, for the well being of their children. If the children are not being properly
cared for, the parents will have the opportunity with the Department’s assistance to
participate through active, meaningful, and cooperative involvement in a formal and
structured process with judicial oversight and protection to assure that the children
receive proper care.
{39} 	In keeping with the purposes of the Children’s Code and the abuse and neglect
process and legislative intent, we see no rational basis or any basis grounded in
fairness to a stand-by parent on which to ignore at the neglect-adjudication stage
relevant historical circumstances. There exists no New Mexico authority for a stale-
evidence rationale relating to neglect determinations. 	The cases relating to stale
evidence involve termination of parental rights, and nothing in those cases indicates
that the rulings apply to neglect adjudications or indicates that the Department cannot
rely on “old” evidence to prove neglect. State ex rel. Department of Human Services
v. Natural Mother, 96 N.M. 677, 634 P.2d 699 (Ct. App. 1981), cited in the dissent,
can be construed to permit the type of evidence the dissent characterizes as stale. In
Natural Mother, although evidence offered by the Department of Human Services was

25
not useful in determining the termination issue in December 1980, this Court
nevertheless indicated that the “evidence was useful to show conditions during [the]
period of time” from June 1977 to the date the district court found that the children
were neglected, which was February 1979. 96 N.M. at 679, 634 P.2d at 701.
{40} 	Furthermore, so-called old evidence can be considered when it is relevant to the
termination proceedings. William M., 2007-NMCA-055, ¶¶ 64-65 (determining that
there was “a very real relationship between [the father’s] past conduct and the current
abilities” of the father to parent his children; indicating that the district court properly
determined “the likelihood of [the father] being able to parent the [c]hildren in the
foreseeable future . . . based on all the evidence placed before it”; and holding that the
district court “properly determined that [the father’s] past conduct was relevant to his
ability to parent the [c]hildren in the foreseeable future” (internal quotation marks and
citation omitted)); State ex rel. Children, Youth & Families Dep’t v. Amy B., 2003-
NMCA-017, ¶¶ 10, 15-18, 133 N.M. 136, 61 P.3d 845 (indicating that the district
court would not abuse its discretion on the issue of a parent’s prospects for change in
the foreseeable future if the court were to consider old evidence that was relevant to
the proceedings and that showed “a very real relationship between the past conduct
and the current abilities”).

26
{41} 	In the present case, the evidence before the district court was relevant on the
issue of Father’s faults, habits, and failures relating to the Children’s neglected-
children status. 	See § 32A-4-2(E)(2) (defining a neglected child as a child “who is
without proper parental care . . . because of the faults or habits of the child’s parent
. . . or the failure or refusal of the parent . . . when able to do so, to provide [the
care]”). As a final matter, because the rationale was not raised in the district court or
argued on appeal, we question the use of the stale-evidence rationale to justify or
support a view that only the events in April 2007 can be considered in the neglect
adjudication.
Additional Concerns
{42} 	The district court found Father neglected the Children. When the Department
filed the amended petition, the evidence revealed that Father was not the biological
father of Johnny and the parties do not dispute this fact. Section 32A-4-2(E)(2) states
that in order for a child to be determined a “neglected child,” the child’s “parent,
guardian or custodian” must have failed to provide for the child’s needs. Father is not
Johnny’s “parent” because he is not his biological or adoptive parent. 	See NMSA
1978, § 32A-1-4(O) (2005) (stating “parents” include biological or adoptive parents
who have a “constitutionally protected liberty interest in the care and custody of the

27
child”). It is undisputed that Father does not have guardianship or custody of Johnny.
See § 32A-1-4(E), (H) (defining “custodian” and “guardian”). 	The Department
conceded this issue in its brief. We instruct the district court to consider the statutory
language during any further proceedings concerning Johnny and Father.
CONCLUSION
{43} 	We affirm the district court’s judgment of neglected children implicating
Father.
{44} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
I CONCUR:
________________________________
JAMES J. WECHSLER, Judge
TIMOTHY L. GARCIA, Judge (concurring in part, dissenting in part)

28
GARCIA, Judge (concurring in part, dissenting in part).
{45} 	I respectfully disagree with the majority and would reverse the neglect
determination against Father.
{46} 	The majority determined that sufficient evidence exists to support a neglect
determination against Father by clear and convincing evidence. For the reasons stated
herein, I disagree with this determination. In addition, the majority determined that
the district court properly denied Father’s motion to dismiss. I agree in part with the
majority that the petition was sufficient to state a claim against Father pursuant to
Rule 10-322(B)(6). I disagree with the majority regarding any other determination or
analysis of why Father was a proper respondent in this case.
{47} 	It is undisputed that the Department’s abuse and neglect proceedings against
Mother and Stepfather were appropriate and supported by sufficient evidence. In its
argument, however, the majority makes inferences and reaches certain conclusions
regarding Father that are not supported by the facts of this case.
Evidence Against Father Was not Clear and Convincing
{48} 	The Department has failed to establish that Father neglected his daughter,
Evonne. The majority agrees that the Department must establish Father’s neglect by
clear and convincing evidence. Majority Opinion ¶ 18. In determining whether this

29
burden is met, “[the Department] must instantly tilt 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.” 	Shawna C., 2005-NMCA-066, ¶ 7
(internal quotation marks and citation omitted). Father argues that the district court
lacked sufficient evidence to find that he neglected Evonne. 	The crux of the
majority’s opinion is that Father complacently sat by for years and did nothing to
protect the Children, thus neglecting them. Majority Opinion ¶¶ 21-24.
{49} 	Prior to June 2006, some evidence exists that Father had not taken more than
his designated and intermittent role in the care of the Children. The Department was
concerned about Father’s sporadic communication and interaction with their office.
By June 2006, however, Father was involved in the custody and housing arrangements
for the care of the Children. Father initiated the petition for an order of protection
against Mother and was engaged in telephonic communication with the Department.
In addition, Father fully cooperated and agreed with the fictive-kin arrangement that
was approved by the Department. From June 2006 through the TDMM on April 9,
2007, there was no evidence that Father was failing in his parental responsibilities,
was failing to cooperate with the Department, or was failing to cooperate with the
fictive-kin arrangement.

30
{50} 	In February 2007, it was the Department that unilaterally removed all five of
the Mother’s children, including Evonne, from fictive kin’s home and placed them
back with Mother for a trial home visit (without any notice to or consent from Father).
The Department failed to produce any evidence that its removal of Evonne from the
fictive kin’s home in 2007 and returning her 	to the abusive home of Mother and
Stepfather was appropriate. But for Mother’s newest incident of abuse and neglect
arising during the 2007 trial home visit arranged by the Department, everything being
done by Father and fictive kin was appropriate for the care of the Children. When
Mother unilaterally disrupted the fictive-kin arrangement at the TDMM, the
Department never called Father to discuss the situation.
{51} 	The 	majority 	states 	that, 	considering 	the 	historical 	circumstances, 	the
Department did enough in 2007 by calling and inviting Father to attend the TDMM.
Majority Opinion ¶ 24. The purpose of the TDMM was to advise Mother that, as a
result of the trial home visit being disrupted, her three youngest children would not
be immediately returned to her and would be placed in foster care with fictive kin.
The record does not reflect that the TDMM was called to deal with the custody
arrangement for Evonne. 	The Department had only taken custody of Mother and
Stepfather’s three youngest children in June 2006. Fictive kin was the only person

31
entrusted with the voluntary care of Evonne. When the trial home visit was disrupted,
Evonne was returned to the safety of fictive kin’s home prior to the TDMM.
Therefore, Evonne’s security, custody, and care with fictive kin was back in place
before the date that the TDMM occurred.
{52} 	I disagree with the majority’s determination that Father had a parental
obligation to address the Department’s concerns regarding Mother’s disruption of the
trial home visit when he was invited to attend the TDMM to address Mother’s three
youngest children in Department custody. Father had no reason to address any issues
regarding Mother’s three youngest children at the TDMM. 	The TDMM was not
initiated to address Evonne or the arrangements for her care with fictive kin. 	In
reality, the record supports the opposite. 	The Department and fictive kin were
surprised by the unilateral announcement at the TDMM that Mother was going to
immediately pick up Evonne and Johnny from fictive kin’s home. 	Emergency
measures had to be initiated to address this surprise announcement. Without some
hint that the Department was requiring Father to attend the TDMM, the invitation to
participate in this meeting cannot be transformed into an act of Father’s neglect
because the meeting was disrupted by Mother’s unexpected rage. This is not evidence
of Father’s neglect and was never asserted to be evidence of Father’s neglect during

32
the testimony from any of the Department’s witnesses at the evidentiary hearing.
{53} 	I disagree with the majority that the Department had no obligation to inform
Father of the emergency situation created by Mother’s enraged conduct at the TDMM
before 	filing 	a 	petition 	asserting 	that 	Father 	was 	neglecting 	Evonne. 	The
Department’s failure to contact Father after the TDMM prevented him from pro-
actively fulfilling his obligations to make alternative arrangements for the proper care
of his daughter. Mother’s unexpected rage at the TDMM is the type of compelling
event that would only be sufficient to instantly tilt the scales in the affirmative
regarding an allegation of neglect against Mother. This evidence is not sufficient to
make such a determination against Father and should not have been used against him
without first providing Father with the opportunity to protect his daughter.
{54} 	The majority inappropriately faults Father for allowing the Children to
voluntarily reside with fictive kin. Majority Opinion ¶¶ 25, 27. Such a determination
is contrary to our established precedent. See generally Ashleigh R., 2002-NMCA-103,
¶ 20 (“Evidence that a parent left a child in the care of others is not necessarily
sufficient to establish neglect, as long as the parent continues to insure that the
caretaker is properly providing for the children’s needs. A contrary rule would have
the unfortunate effect of discouraging parents from seeking assistance when they find

33
themselves unable to fully discharge the responsibilities of parenthood.” 	(citation
omitted)). The record indicates that the voluntary placement with fictive kin provided
a dedicated and comfortable environment for the Children. 	After placement with
fictive kin in 2006, nothing in the record establishes that Father did anything to disrupt
or violate the fictive-kin arrangement. The record, including the Department’s two
petitions filed in May 2007, fails to identify any new action or failure to act by Father
in 2007 to establish a basis for neglect against Father. The determination of neglect
against Father was based upon the inappropriate actions of Mother, combined with
Father’s absence from the TDMM and his historical interaction with the Department
prior to the fictive-kin arrangement. Majority Opinion ¶¶ 20-23.
{55} 	The majority improperly uses stale evidence against Father to support a neglect
determination in 2007. 	Majority Opinion ¶¶ 21-23. 	Stale evidence is regularly
rejected in proceedings involving termination of parental rights. 	State ex rel.
Children, Youth & Families Dep’t v. Lance K., 2009-NMCA-___, ¶ 26, ___ N.M. ___,
___ P.3d ___ (No. 26,632, Feb. 11, 2009) (stating that stale evidence cannot be relied
upon by the Department “for the purpose of determining whether those conditions
persisted” (internal quotation marks and citation omitted)); Natural Mother, 96 N.M.
at 679, 634 P.2d at 701. However, so-called old evidence can be considered when it

34
is relevant to the termination proceedings. See William M., 2007-NMCA-055, ¶ 65;
Amy B., 2003-NMCA-017, ¶¶ 10, 15-18.
{56} 	The majority’s analysis of the stale evidence issue in this case misses the point
focused upon in this dissent. 	Majority Opinion ¶¶ 36, 39-41. 	I agree with the
majority that stale evidence should be relevant in many abuse and neglect cases.
Where there are fresh allegations and evidence of abuse or neglect, stale evidence is
relevant and appropriately admitted to establish an ongoing history and pattern of
abuse or neglect. However, this argument is not appropriate to support the position
that stale evidence alone is sufficient to establish a current allegation of abuse or
neglect where no fresh evidence of neglect exists against a parent. 	Under
circumstances such as these, the precedent excluding stale evidence should apply and
I would extend the stale evidence rule to apply to neglect proceedings under the
factual circumstances of this case. State ex rel. Children, Youth & Families Dep’t. v.
Maria C., 2004-NMCA-083, ¶ 25, 136 N.M. 53, 94 P.3d 796 (recognizing that the
process for terminating parental rights is a continuum of proceedings beginning with
the filing of the neglect or abuse petition). Otherwise, the Department is entitled to
continuously hold any stale evidence over the head of a parent until young children
reach the age of majority. 	Without fresh evidence of abuse or neglect, the

35
Department’s use of this stale evidence is unjust. The prejudice placed upon a parent
to defend against stale allegations of neglect must be given serious scrutiny.
{57} 	Relying exclusively on stale evidence is improper, especially applied to the
facts of the present case. The Department never once, over a period of five years,
alleged or hinted that Father had neglected the Children. As late as June 2006, the
Department was still attempting to place the Children in the temporary custody of
Father. Father’s fitness to care for the Children was never questioned by the
Department before May 2007. The fictive-kin arrangement had the Department’s full
approval and would not have been disrupted except for the enraged actions of Mother.
The Department was unable to include any specific factual allegation (stale or fresh)
regarding Father’s actions in either petition filed in May 2007.
{58} 	The majority has determined that there is sufficient evidence to establish that
Father committed a recent act of neglect when he failed to attend the TDMM. 	I
disagree with this determination, and the remaining stale evidence should not have
been used to establish a current determination of neglect against Father. As a result,
the Department did not present clear and convincing evidence of Father’s neglect.
Adequacy of the Department’s Petition
{59} 	I respectfully disagree with several of the reasons stated by the majority

36
regarding why Father should be a respondent in this case. The district court properly
denied Father’s motion to dismiss pursuant to Rule 10-322(B)(6). Father only raised
the defense of “failure to state a claim” in his previous district court response and at
his argument at the adjudicatory hearing. Father did not raise any due process or other
constitutional challenges to the Department’s petition. 	In addition, Father did not
assert that our Supreme Court has required the Department to provide more specific
information beyond standard notice pleading on Form 10-454 NMRA. 	These
additional issues were not adequately raised by Father or properly preserved below.
The motion was properly dismissed under a failure to state a claim analysis because
the incorporation of the unstated language in the referenced statute, Section 32A-4-
2(E)(2), provided sufficient information to state a claim under a narrow Las
Luminarias analysis. 	Las Luminarias, 92 N.M. 297, 587 P.2d 444. 	Overlapping
constitutional and legal issues that Father did not raise in this case should not be
addressed on appeal. 	See In re John Doe, 98 N.M. 540, 541, 650 P.2d 824, 825
(1982). If the due process issues had been properly raised and preserved by Father,
I would also consider reversing the district court on due process grounds for failure
to state any information that adequately informed Father of the claim of neglect
against him. Kathleen D.C., 2007-NMCA-018, ¶ 12.

37
Whether Father Should be a Respondent in This Case
{60} 	The majority justifies its position by stating that, as a practical matter, the
Children’s Code places a paramount concern that the Department focus upon a child’s
interest over rights of a non-custodial parent. 	Majority Opinion ¶¶ 37-38. 	The
majority recognizes the legal and procedural difficulties that arise when the
Department proceeds to adjudicate an abuse or neglect determination against only one
parent. Majority Opinion ¶¶ 31-33. These problems are further magnified in this case
where the neglectful Mother is remarried and has three children with Stepfather.
Despite this inconvenience, it would be a miscarriage of justice to allow the
Department to include Father in its petition simply to eliminate the procedural
difficulties faced by the Department, or as a convenient means to avoid splitting up
the five children while this neglectful Mother and Stepfather undergo another round
of treatment, counseling, and reunification attempts.
{61} 	I cannot agree with a policy that justifies including Father as an additional
respondent to a neglect proceeding because it will establish a better process for the
Department to provide formal assistance, oversight, and protection against the
neglectful Mother. 	Acknowledging Father’s custodial rights presented a more
complex situation for the Department in structuring a care plan for all five of Mother’s

38
children. However, the Department’s preferences for a unified supervisory process
do not trump a parent’s constitutional rights to provide care and make decisions about
their children. 	See Kathleen D.C., 2007-NMSC-018, ¶ 14 (“A parent’s interest in
maintaining a relationship with his or her child and the government’s interest are
strong countervailing interests, which are equally significant.” (internal quotation
marks and citations omitted)); In re Jane Doe, 98 N.M. 198, 200, 647 P.2d 400, 402
(1982) (“We begin by emphasizing that parental rights are among the most basic
rights of our society and go to the very heart of our social structure.” (internal
quotation marks and citation omitted)); Maria C., 2004-NMCA-083, ¶ 24 (“A parent’s
fundamental liberty interest in the care, custody, and management of their children is
well established.”). While I recognize that the Department is entrusted with protecting
the best interests of children, it cannot take lightly its interference with a parent’s
constitutionally protected rights. Department processing preferences and efficiencies
should never be considered as the paramount concern in any determination of whether
a parent neglected his or her child.
{62} 	The majority opinion states that throughout the years Father was complacent
and failed to be pro-active in the care of the Children. Majority Opinion ¶¶ 29, 31.
I disagree with this factual assessment of Father’s involvement to support the

39
Department’s decision to include Father as a proper party to these proceedings. Father
regularly visited the Children and had them stay with him on weekends. 	Father
testified that he paid child support in cash, and the district court recognized such
payments and ordered continuing payments be made for Evonne. Johnny lived with
Father for a period of time in 2002-2003. 	In an effort to protect Evonne in 2006,
Father filed a petition for order of protection from domestic abuse against Mother.
Recognizing his own limitations in caring for the Children in June 2006, Father agreed
to the arrangement for fictive kin to insure that the Children were properly cared for
in fictive kin’s home. Father’s actions constitute more than simple complacency as
asserted by the majority. 	I can only conclude that Father was added to these
proceedings in order to eliminate the procedural difficulties confronted by the
Department in this case or as a convenient means to avoid splitting up the five
children while Mother underwent another round of treatment, counseling, and related
efforts toward reunification. 	Department procedural preferences and efficiencies
should never be utilized as the basis for the determination of whether a parent has
neglected his or her child.
{63} 	Father’s motion to dismiss was properly denied pursuant to Rule 10-322(B)(6),
but should not be denied for any of the other reason stated by the majority. For the

40
reasons stated herein, I would reverse the district court’s determination and judgment
establishing that Father neglected the Children by clear and convincing evidence.
__________________________________
TIMOTHY L. GARCIA, Judge