March 22, 2022- CYFD v. Garrett S.F., No. A-1-CA-39258

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: March 22, 2022	3
Nos. A-1-CA-39257 & A-1-CA-39258	4
(consolidated for purpose of opinion).	5
STATE OF NEW MEXICO ex rel.	6
CHILDREN, YOUTH & FAMILIES	7
DEPARTMENT,	8
Petitioner-Appellee,	9
v.	10
CARMELLA M.,	11
Respondent-Appellant,	12
and	13
GARRETT S.F.,	14
Respondent,	15
IN THE MATTER OF CARLOS F.,	16
Child.	17
and	18
STATE OF NEW MEXICO ex rel.	19
CHILDREN, YOUTH & FAMILIES	20
DEPARTMENT,	21
Petitioner-Appellee,	22
v.	23
Court of Appeals of New Mexico
Filed 3/22/2022 11:28 AM

CARMELLA M.,	1
Respondent,	2
and	3
GARRETT S.F.,	4
Respondent-Appellant,	5
IN THE MATTER OF CARLOS F.,	6
Child.	7
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY	8
Kathleen A. McGarry, District Judge	9
Children, Youth & Families Department	10
Mary McQueeney, Acting Chief Children’s Court Attorney	11
Robert Retherford, Children’s Court Attorney	12
Santa Fe, NM	13
for Appellee	14
Law Offices of Nancy L. Simmons, P.C.	15
Nancy L. Simmons	16
Albuquerque, NM	17
for Appellant Carmella M.	18
Susan C. Baker	19
El Prado, NM	20
for Appellant Garrett S.F.	21
Johnna L. Studebaker	22
Santa Fe, NM	23
Guardian Ad Litem	24

OPINION	1
ATTREP, Judge.	2
{1} 	Carmella M. (Mother) and 	Garrett 	S.F. (Father) (collectively, Parents)	3
separately 	appeal 	the 	district 	court’s 	adjudication 	of 	abuse, 	based 	on 	the	4
endangerment definition of “abused child” in NMSA 1978, Section 32A-4-2(B)(4)	5
(2018), and its finding of aggravated circumstances, under Section 32A-4-2(C)(1),	6
as to their son, Carlos F. (Child).1 Parents challenge the sufficiency of the evidence	7
to 	support 	both 	the 	adjudication 	of 	abuse 	and 	the 	finding 	of 	aggravated	8
circumstances.	9
{2} 	This case arose from the unexpected death of Child’s older sibling, Santiago	10
F. (Sibling). The Children, Youth and Families Department’s (CYFD) allegations of	11
abuse as to Child are based on the injuries or abuse that befell Sibling. In particular,	12
CYFD argues that Child is an “abused child” based either on (1) the theory that	13
Sibling was physically abused by someone and this alone renders Child endangered,	14
or (2) the theory that Parents knew or should have known about Sibling’s injuries or	15
abuse and failed to act appropriately in the face of their actual or constructive	16
knowledge 	and 	this 	renders 	Child 	endangered. 	Because 	the 	culpability 	or	17
responsibility of Parents must somehow be established to adjudicate a child abused,	18
1 Because Parents’ appeals involve the same underlying proceedings and raise
related issues, we exercise our discretion to consolidate their appeals for decision.
See Rule 12-317(B) NMRA.

2
CYFD’s first theory fails as a matter of law. Because CYFD’s second theory is not	1
supported by substantial evidence in the record, it likewise fails. We accordingly	2
conclude that CYFD did not meet its burden to prove by clear and convincing	3
evidence that Child is an “abused child” under Section 32A-4-2(B)(4), and we	4
reverse the adjudication of abuse. We do not reach Parents’ additional claims of	5
error.	6
BACKGROUND	7
{3} 	Soon after Sibling’s death, CYFD filed a petition alleging (1) abuse of Child,	8
as defined in Section 32A-4-2(B)(1) and (B)(4), and (2) aggravated circumstances,	9
as defined in Section 32A-4-2(C). It also filed an ex parte motion for custody of	10
Child, which the district court granted. Child was eventually placed in the care of	11
Mother’s mother and stepfather. The district court’s judgment of adjudication was	12
rendered more than one and one half years after the filing of the petition. The delay	13
in the adjudicatory proceedings resulted in part from a delay in obtaining the autopsy	14
results for Sibling. The following recitation of facts is derived from testimony at the	15
adjudicatory proceedings.	16
{4} 	Sibling was born premature to Father and another woman. Sibling entered	17
CYFD custody soon after birth, before Father gained custody of him. For a period	18
of time in Sibling’s early life, while Father was incarcerated, Sibling lived with	19
Mother and her parents. In time, Father and Mother began living together, Sibling	20

3
came back into Father’s custody, and Child was born to Parents. Sibling had	1
developmental delays. His gross motor movement was impaired, and he was largely	2
nonverbal. At the time of his death at nearly five years old, Sibling was walking, but	3
still in diapers. Family members described that Sibling would sometimes have	4
tantrums and throw his body around on the ground and on other objects when he	5
became angry or frustrated.	6
{5} 	On the day before Sibling’s death, Mother’s brother (Brother), his wife, and	7
their two young sons spent the day at Parents’ home with Mother, Father, Sibling,	8
and Child. Brother described that he and Parents played with the four children.	9
Brother did not see anything concerning in how Mother was caring for Sibling or	10
Child. Brother often left his two young sons in Mother’s care.	11
{6} 	On the day Sibling died, he awoke at around 3:00 a.m., and Mother gave him	12
some water before putting him back to bed. She later found him at the bathroom sink	13
running his hands under the water and looking dazed. She asked him what was	14
wrong, but he did not respond. She then took Sibling to another room, and as he was	15
seated on the floor, he fell over, apparently unable to support himself. Concerned,	16
Mother woke Father, and Mother called 911. At some point, Sibling stopped	17
breathing, and Father began giving him CPR. After paramedics arrived, Sibling was	18
taken to the emergency room. He died later that day at the hospital.	19

4
{7} 	The forensic pathologist who performed the autopsy on Sibling’s body	1
reported 	that 	the 	cause 	of 	death 	was 	diabetes 	insipidus, 	with 	a 	significant	2
contributing condition of blunt head trauma. Diabetes insipidus is the body’s	3
inability to handle water in the blood, which can elevate salt levels in the blood;	4
elevated salt levels, in turn, can cause seizures, damage brain cells, and cause death.	5
The forensic pathologist testified that the autopsy also revealed multiple areas of	6
blunt force trauma to the head and the torso. One such trauma caused a subdural	7
hemorrhage that was estimated to have predated Sibling’s death by about two to four	8
days. Of the external bruises on Sibling’s body, the only one the forensic pathologist	9
was able to date was behind Sibling’s right ear, which he estimated to be at least	10
eighteen hours old. Ultimately, the forensic pathologist deemed the manner of death	11
undetermined because, whether the diabetes insipidus was a preexisting organic	12
condition or caused by blunt head trauma, was unknown. CYFD’s expert in forensic	13
pediatrics also testified to her opinion that some of the trauma on Sibling’s head and	14
torso was indicative of abuse. Parents’ expert witness in anatomic, clinical, and	15
forensic pathology opined that a pineal gland tumor in Sibling’s brain (and not some	16
external force) triggered the diabetes insipidus and that Sibling died of natural	17
causes.	18
{8} 	After the close of evidence, the district court ordered the parties to submit	19
written closing arguments and proposed findings of fact and conclusions of law.	20

5
Parents and Child’s guardian ad litem’s submissions proposed that Sibling’s death	1
was due to natural causes, that Child not be adjudicated as abused, and that the	2
petition be dismissed. CYFD proposed that Sibling’s death was nonaccidental and	3
that Child be adjudicated abused.	4
{9} 	The district court orally announced its findings of fact and conclusions of law,	5
which then were memorialized in the adjudicatory judgment. The district court,	6
quoting the statutory language of Section 32A-4-2(B)(4), concluded Child is an	7
abused child as to Mother and Father as follows: “[Child]’s parents have knowingly,	8
intentionally, or negligently placed the child in a situation that may endanger the	9
child’s life or health.” The district court, quoting the statutory language of Section	10
32A-4-2(C)(1), concluded aggravated circumstances existed as to Mother and Father	11
as follows: “[Child]’s parent or custodian has attempted, conspired to cause, or	12
caused great bodily harm to the child or great bodily harm or death to the child’s	13
sibling.”2 In toto, the district court’s findings of fact were:	14
a. [Sibling] died February 18, 2019;	15
b. [Sibling] was an older sibling of [Child]; [Mother] and	16
[Father] are the parents of [Child];	17
2 On appeal, CYFD maintains that aggravated circumstances exist as a result
of “Parents’ failure to seek medical attention when they knew [or] should have
known about Sibling’s abuse.” As we explain in our examination of the district
court’s adjudication of abuse, this assertion is supported neither by findings of fact
made by the district court nor substantial evidence in the record.

6
c. The cause of the death of [Sibling] was diabetes insipidus, with	1
a significant contributing factor of blunt head trauma;	2
d. Diabetes insipidus is a condition caused by the disregulation	3
of glandular functions, flushing fluid from the body and resulting in a	4
dangerous imbalance of minerals;	5
e. The cause of the diabetes insipidus that resulted in [Sibling]’s	6
death was blunt force trauma to the head, shown by a significant	7
subdural hemorrhage and the accumulation of [sixty] milliliters of	8
blood in the brain and skull cavity;	9
f. It is evident from the healing in the subdural hemorrhage that	10
some of the blunt head trauma [Sibling] suffered was inflicted more	11
than [eighteen] hours prior to [P]arents’ call to first responders;	12
g. Although there is evidence [Sibling] was prone to accidents,	13
the trauma and bruising in some areas of the head and torso are	14
inconsistent with accidental injury; and	15
h. The opinion offered by [Parents’] expert witness, that a pineal-	16
glial cyst caused the deadly condition diabetes insipidus, disregards the	17
significant 	evidence 	of 	blunt 	force 	trauma 	to 	[Sibling] 	and	18
subarachnoid hemorrhaging in close proximity to the pituitary gland.	19
{10} 	After Parents appealed the adjudicatory judgment, CYFD moved for a	20
permanent guardianship, pursuant to NMSA 1978, Sections 32A-4-31 (2005)	21
and -32 (2009), seeking the appointment of Mother’s mother and stepfather as	22
permanent guardians of Child and contending, among other things, that “termination	23
of parental rights is not in . . . Child’s best interests.” The district court granted the	24
motion, appointed Mother’s mother and stepfather as Child’s permanent guardians,	25
reserved Parents’ right to appeal the adjudicatory judgment, and dismissed CYFD	26
from the district court action.	27

7
STANDARD OF REVIEW	1
{11} 	The burden was on CYFD to establish through clear and convincing evidence	2
that Child was abused. See State ex rel. Child., Youth & Fams. Dep’t v. Amanda H.,	3
2007-NMCA-029, ¶ 22, 141 N.M. 299, 154 P.3d 674; see also NMSA 1978, § 32A-	4
4-20(H) (2014) (establishing the clear and convincing standard for adjudications of	5
abuse and neglect). To evaluate Parents’ sufficiency challenge on appeal, “we must	6
determine whether the district court’s decision is supported by substantial evidence	7
of a clear and convincing nature.” State ex rel. Child., Youth & Fams. Dep’t v.	8
Alfonso M.-E., 2016-NMCA-021, ¶ 26, 366 P.3d 282. “For evidence to be clear and	9
convincing, it must instantly tilt the scales in the affirmative when weighed against	10
the evidence in opposition and the fact finder’s mind is left with an abiding	11
conviction that the evidence is true.” State ex rel. Child., Youth & Fams. Dep’t v.	12
Michelle B., 2001-NMCA-071, ¶ 12, 130 N.M. 781, 32 P.3d 790 (internal quotation	13
marks and citation omitted). “Substantial evidence is relevant evidence that a	14
reasonable mind would accept as adequate to support a conclusion.” State ex rel.	15
Child., Youth & Fams. Dep’t v. Keon H., 2018-NMSC-033, ¶ 36, 421 P.3d 814	16
(internal quotation marks and citation omitted). “We will uphold the district court’s	17
judgment if, viewing the evidence in the light most favorable to the judgment, a fact	18
finder could properly determine that the clear and convincing standard was met.”	19
Alfonso M.-E., 2016-NMCA-021, ¶ 26 (internal quotation marks and citation	20

8
omitted). To the extent our review involves questions of law, it is de novo. Michelle	1
B., 2001-NMCA-071, ¶ 12.	2
DISCUSSION	3
{12} 	Before we address whether substantial evidence supports the adjudication of	4
abuse of Child, we briefly discuss the parties’ dispute about the cause of Sibling’s	5
death, as this largely has been the focus of these proceedings to date. The parties	6
vigorously disputed below and now dispute on appeal whether Sibling’s diabetes	7
insipidus and death resulted from blunt head trauma. The cause of Sibling’s death	8
was the focal point of the adjudicatory hearings and the district court’s findings. We,	9
however, find it unnecessary to address the parties’ arguments in this regard. Even	10
assuming sufficient evidence supports the district court’s finding that blunt head	11
trauma caused Sibling’s diabetes insipidus and death, CYFD did not meet its burden	12
to prove that Child is an abused child under Section 32A-4-2(B)(4).	13
{13} 	We reach this conclusion in view of CYFD’s theories of abuse before us.	14
CYFD’s contention that Child is an abused child is not based on an allegation that	15
Child suffered abuse at the hands of Parents. Instead, CYFD relies on the	16
endangerment definition in Section 32A-4-2(B)(4), which defines an “abused child”	17
as a child “whose parent, guardian or custodian has knowingly, intentionally or	18
negligently placed the child in a situation that may endanger the child’s life or	19
health.” CYFD contends Parents’ actions or inactions vis-à-vis Sibling endangered	20

9
the life or health of Child. What, precisely, CYFD contends Parents did (or did not	1
do) to or for Sibling, such that placing Child in the same environment that Sibling	2
had been in would endanger Child, is, frankly, difficult to discern from the record	3
and the briefing on appeal.	4
{14} 	As best we can tell, CYFD advances two theories why Child is abused under	5
Section 32A-4-2(B)(4). First, CYFD contends that because Sibling was “physically	6
abused,” as that term is defined in Section 32A-4-2(H), this alone renders Child	7
endangered under Section 32A-4-2(B)(4). Second, CYFD contends that Parents	8
“knew or should have known” about Sibling’s injuries or abuse and should have	9
taken action to protect him before they called for help on the day of his death, and	10
that Parents’ failure to do so renders Child endangered under Section 32A-4-2(B)(4).	11
As we discuss below, CYFD’s first theory fails because, as this Court has previously	12
explained, an adjudication of abuse “require[s] some degree of culpability or	13
responsibility on the part of the parent.” State ex rel. Child., Youth & Fams. Dep’t v.	14
Vincent L., 1998-NMCA-089, ¶ 10, 125 N.M. 452, 963 P.2d 529. CYFD’s second	15
theory of abuse is void of substantial evidence in the record and likewise fails.	16
I. 	Proof That Sibling Was Physically Abused, by Itself, Does Not Render	17
Child Endangered Under Section 32A-4-2(B)(4)	18
{15} 	Both Parents argue at length that insufficient evidence supports a finding, if	19
any, by the district court that one or both of them caused any injury to Sibling. We	20
understand from CYFD’s briefing on appeal, however, that this is not the theory of	21

10
abuse advanced by CYFD. 3 Instead, in response to Parents’ argument, CYFD	1
effectively concedes that insufficient evidence exists to support a finding that one or	2
both Parents “harmed Sibling” and asserts that the district court “did not have [to]	3
find that one or both Parents caused Sibling’s injuries.”	4
{16} 	In support of its argument that Parents need not have caused Sibling’s injuries,	5
CYFD cites the definition of “physical abuse” in the Abuse and Neglect Act.	6
“[P]hysical abuse” includes any case in which the child suffers	7
strangulation or suffocation and any case in which the child exhibits	8
evidence of skin bruising, bleeding, malnutrition, failure to thrive,	9
3 New Mexico law permits a district court to adjudicate a child as abused if
CYFD establishes through clear and convincing evidence that a parent physically
abused a sibling. See, e.g., In re I.N.M., 1987-NMCA-043, ¶¶ 11, 18-19, 27, 105
N.M. 664, 735 P.2d 1170 (holding that the father’s severe physical abuse of the
sibling and the mother’s failure to protect the sibling supported the trial court’s
finding that the parents endangered the child and the trial court’s conclusion that the
child was abused under a provision substantially identical to Section 32A-4-
2(B)(4)); State ex rel. Child. Youth & Fams. Dep’t v. Arthur C., 2011-NMCA-022,
¶¶ 28, 33, 149 N.M. 472, 251 P.3d 729 (holding that “the court validly relied on the
past physical abuse of [the child’s] sibling, at least in part, to find sufficient evidence
of abuse [under Section 32A-4-2(B)(4)] and neglect of [the child]”). But, again, we
do not understand this to be CYFD’s theory of abuse in this case. Furthermore, the
district court made no findings of fact as to that theory. In fact, CYFD proposed
factual findings supporting an inference that Parents were responsible for Sibling’s
injuries—i.e., that Sibling, in the days immediately preceding his death, was cared
for almost exclusively by Mother and Father. These findings, however, were not
adopted by the district court and, as a result, are deemed rejected. See In re
Guardianship of Ashleigh R., 2002-NMCA-103, ¶ 18, 132 N.M. 772, 55 P.3d 984
(“When a trial court rejects proposed findings of fact, we assume that there was
insufficient evidence to support them.”); see also In re Yalkut, 2008-NMSC-009,
¶ 18, 143 N.M. 387, 176 P.3d 1119 (“[F]ailure to make a finding of fact is regarded
as a finding against the party seeking to establish the affirmative.”). We therefore
give this theory of abuse no further consideration.

11
burns, fracture of any bone, subdural hematoma, soft tissue swelling or	1
death and:	2
(1) 	there is not a justifiable explanation for the condition or	3
death;	4
(2) 	the explanation given for the condition is at variance with	5
the degree or nature of the condition;	6
(3) 	the explanation given for the death is at variance with the	7
nature of the death; or	8
(4) 	circumstances indicate that the condition or death may not	9
be the product of an accidental occurrence.	10
Section 32A-4-2(H). In citing this definition, CYFD appears to contend that Sibling	11
was physically abused by someone and that this fact alone renders Child endangered	12
in Parents’ care under Section 32A-4-2(B)(4).	13
{17} 	To the extent CYFD argues that Sibling’s physical abuse in and of itself—	14
without any corresponding parental culpability in or responsibility for the abuse—is	15
sufficient to render Child abused under Section 32A-4-2(B)(4), we cannot agree.	16
Although it is not required under Section 32A-4-2(B)(4) that the parent inflict or	17
cause harm to a child, it is required that the parent be responsible or culpable in some	18
way for placing the child in a situation that may endanger the child’s life or health.	19
See 	§ 	32A-4-2(B)(4) 	(requiring 	that 	the 	parent 	“knowingly, 	intentionally 	or	20
negligently place[] the child in a situation that may endanger the child’s life or	21
health” (emphasis added)). This requirement was made clear over twenty years ago	22
in Vincent L., a case in which this Court held that all adjudications of abuse “require	23

12
some degree of culpability or responsibility on the part of the parent.” 1998-NMCA-	1
089, ¶ 10; see also State ex rel. Child., Youth & Fams. Dep’t v. Carl C., 2012-	2
NMCA-065, ¶¶ 13, 15, 281 P.3d 1242 (reading Vincent L. as holding that the district	3
court is required to assign responsibility for the abuse or neglect to a parent).4
4
{18} 	In Vincent L., CYFD argued that the definition of “physical abuse,” quoted	5
above, provides an independent ground to adjudicate a child abused when the parent,	6
guardian, or custodian is not responsible for the abuse. 1998-NMCA-089, ¶ 9. This	7
Court rejected CYFD’s argument, explaining that “this definition of physical abuse,	8
rather than providing an independent basis for proceeding on an abuse petition,	9
4 Carl C. grappled with the specific question of whether Section 32A-4-
2(B)(1) requires CYFD to prove which parent in particular placed the child at risk
by his or her inaction, so long as CYFD can prove at least one parent did. See Carl
C., 2012-NMCA-065, ¶¶ 12-16. In this case, we deal with a different question—i.e.,
whether CYFD can adjudicate a child abused without proof that either parent is
somehow culpable or responsible. Vincent L. answered this question in the negative,
and this holding remains good law today. See Carl C., 2012-NMCA-065, ¶¶ 13, 15.
Although there was a period of time following Vincent L. when one definition of
“abused child,” § 32A-4-2(B)(1) (1997), appeared not to require the culpability or
responsibility of a parent, all definitions of “abused child” in the 1993 version of
Section 32A-4-2(B), at issue in Vincent L., like the current version of Section 32A-
4-2(B), require some culpability or responsibility on the part of a parent. Compare
§ 32A-4-2(B) (1993) (requiring abuse “inflicted by the child’s parent,” a parent who
“has knowingly, intentionally or negligently” endangered the child, or a parent who
“has knowingly or intentionally tortured, cruelly confined or cruelly punished the
child”), with § 32A-4-2(B) (requiring “action or inaction of the child’s parent,”
physical 	abuse 	“inflicted 	or 	caused 	by the 	child’s 	parent,” 	sexual 	abuse 	or
exploitation “inflicted by the child’s parent,” a parent who “has knowingly,
intentionally or negligently” endangered the child, or a parent who “has knowingly
or intentionally tortured, cruelly confined or cruelly punished the child”).

13
simply defines what is meant by physical abuse in the definition for an abused child.”	1
Id. The Court went on to explain that “a child is either neglected or abused due to	2
actions or inactions by a parent or guardian.” Id. ¶ 10. As a result, CYFD must “show	3
that the parent or guardian had a duty to the child and through some action or inaction	4
allowed the child to be harmed or neglected.” Id. Further, although “[t]here is no	5
requirement of criminal culpability,” the Court explained, “there must still be a	6
showing that the parent or guardian was responsible somehow for the harm.” Id.; cf.	7
Carl C., 2012-NMCA-065, ¶ 13 (providing that, to adjudicate a child abused under	8
Section 32A-4-2(B)(1), the risk of harm to the child must be caused by a parent, as	9
distinct from the situation in which, e.g., the child was sexually abused by a neighbor	10
or 	bullied 	at 	school). 	The 	Court 	concluded, 	“[W]e 	do 	not 	believe that 	the	11
[L]egislature intended to make evidence of physical abuse alone, without any	12
evidence that a parent was in some fashion responsible for the injury, enough to	13
prove a child abused under the Act.” Vincent L., 1998-NMCA-089, ¶ 12. In sum, an	14
abuse adjudication cannot be based on the mere fact that the child is the victim of	15
physical abuse; instead, the parent, through action or inaction, must somehow be	16
culpable in or responsible for the harm to the child. See id. ¶¶ 9-12; see also § 32A-	17
4-2(B) (requiring culpability or responsibility of parent under all definitions of	18
“abused child”).	19

14
{19} 	Under 	Vincent L., physical abuse of Child, without any corresponding	1
culpability or responsibility on the part of Parents, would be insufficient to support	2
an adjudication of abuse. See 1998-NMCA-089, ¶¶ 9-12; see also § 32A-4-2(B).	3
Likewise, physical abuse of Sibling in and of itself is insufficient to support a finding	4
that Child is endangered under Section 32A-4-2(B)(4), and thus CYFD’s contentions	5
to the contrary fail. Id.	6
II. 	CYFD’s Contention That Parents Knew or Should Have Known About	7
Sibling’s Abuse or Injuries Is Not Supported by Substantial Evidence	8
{20} 	In apparent recognition of the need to establish culpability or responsibility,	9
CYFD contends that Parents knew or should have known about Sibling’s abuse or	10
injuries—in particular, bruising on Sibling’s body—and failed to act appropriately	11
in the face of this actual or constructive knowledge.5 Although CYFD does not cite	12
the “neglected child” definition in the Abuse and Neglect Act, it appears CYFD’s	13
argument is premised on some theory of neglect of Sibling. See § 32A-4-2(G)(3)	14
(defining a “neglected child” as a child “who has been physically . . . abused, when	15
the child’s parent, guardian or custodian knew or should have known of the abuse	16
and failed to take reasonable steps to protect the child from further harm”); see also	17
5 CYFD is not entirely consistent with its argument on this point. At times, it
argues that Parents knew or should have known about Sibling’s abuse; and at others,
it argues that Parents knew or should have known about Sibling’s injuries. All of
CYFD’s arguments, however, turn on actual or constructive knowledge of Sibling’s
injuries—a premise, as we discuss, that lacks support in the record.

15
Michelle B., 2001-NMCA-071, ¶ 17 (providing that, to support a finding of neglect,	1
“the court must have been presented with clear and convincing evidence of [the	2
parent’s] culpability through intentional or negligent” action or inaction). CYFD’s	3
neglect argument fails.	4
{21} 	As an initial matter, the district court made no findings of fact to the effect	5
that Parents knew or should have known about Sibling’s injuries and failed to	6
respond appropriately. None of the district court’s findings, which are set out in full	7
in the background section of this opinion, relate to whether—or support a finding	8
that—Parents knew or should have known about Sibling’s injuries. As a result, the	9
district court’s findings cannot support a legal conclusion that Parents neglected	10
Sibling because they knew or should have known about his injuries and failed to	11
respond appropriately. Cf. State ex rel. Child., Youth & Fams. Dep’t v. Amanda M.,	12
2006-NMCA-133, ¶ 31, 140 N.M. 578, 144 P.3d 137 (explaining that the district	13
court’s findings did not support the legal conclusion that the mother “inflicted or	14
caused” the child’s physical abuse under Section 32A-4-2(B)(2)). And although we	15
must construe findings liberally in support of a judgment, we cannot go so far as to	16
find facts omitted by the district court. See Toynbee v. Mimbres Mem’l Nursing	17
Home, 1992-NMCA-057, ¶ 16, 114 N.M. 23, 833 P.2d 1204 (explaining that “[o]n	18
appeal, a reviewing court liberally construes findings of fact adopted by the fact	19
finder in support of a judgment”); Herndon v. Albuquerque Pub. Schs., 1978-	20

16
NMCA-072, ¶ 14, 92 N.M. 635, 593 P.2d 470 (providing that “it is beyond the	1
function of an appellate court to find facts omitted by the trial court” and that our	2
duty is instead “to interpret the findings made to determine whether the findings are	3
sufficient to support the judgment entered”).	4
{22} 	Regardless, even had the district court made findings in support of CYFD’s	5
theory that Parents knew or should have known about Sibling’s injuries and failed	6
to act appropriately, the evidence CYFD directs us to on appeal does not support that	7
theory. CYFD cites the following:	8
Sibling was at higher-than-normal risk of abuse due to his premature	9
birth, developmental delays, lack of potty-training, having a younger	10
sibling, and having a nonbiological parent reportedly as the primary	11
caregiver. There were indications of Father having anger management	12
issues. Mother’s demeanor seemed “odd” to [one of the officers who	13
responded to the 911 call on the day of Sibling’s death]. Between	14
Sibling’s transition [from Mother’s mother] to Parents and his death,	15
[Mother’s mother and stepfather never] saw Parents’ home or how	16
Sibling was cared for in the home. [Mother’s mother] saw nothing in	17
the home that Sibling might have accidentally fallen on.	18
This evidence, such as it is, does not relate to, let alone establish, Parents’ actual or	19
constructive knowledge of Sibling’s injuries or Parents’ inaction in response to such	20
injuries. In fact, it supports nothing more than a vague inference of a risk of harm to	21
Sibling. Such an inference, this Court previously has explained, “does not meet a	22
clear and convincing standard, instantly tilting the scales in the affirmative, for any	23
of the statutory definitions” of abuse or neglect. State ex rel. Child., Youth & Fams.	24
Dep’t v. Shawna C., 2005-NMCA-066, ¶ 22, 137 N.M. 687, 114 P.3d 367 (rejecting	25

17
a similar attempt to establish that a father’s personality traits and criminal history	1
created an inference of child abuse, despite the absence of any evidence of the father	2
being violent toward the child).	3
{23} 	Nor does our review of the record reveal evidence that might support CYFD’s	4
contention that Parents knew or should have known about Sibling’s injuries,	5
particularly Sibling’s bruising, and failed to take appropriate action. In terms of the	6
medical evidence: Other than a single bruise behind Sibling’s right ear, which was	7
described as prominent and yellowish and at least eighteen hours old, the record	8
before us contains little description about the nature of the bruising on Sibling’s	9
body,6 and it contains no information about when that bruising might have been	10
visible 	or 	whether 	a 	lay 	person 	would 	have 	recognized 	such 	bruising 	as	11
nonaccidental or needing immediate medical attention. Further, there is no evidence	12
that Sibling’s subdural hemorrhage would have resulted in noticeable symptoms. In	13
terms of lay testimony: Three witnesses—Mother, Father, and Brother—saw Sibling	14
in the days before his death. Of those witnesses, only Father testified to Sibling’s	15
injuries, describing them as bumps and bruises from playing with other children, but	16
nothing out of the ordinary.7
17
6 Although the autopsy report and photographs were introduced into evidence
before the district court, they were not made part of the record on appeal.
7 CYFD contends Father’s description of Sibling’s injuries is contradicted by
what the autopsy revealed and, as a result, suggests that “Father was either negligent
in caring for Sibling’s well-being or intentionally hiding his son’s real condition.”

18
{24} 	In short, CYFD’s assertion that Parents knew or should have known about	1
Sibling’s injuries and failed to take appropriate action is unsupported. Compare	2
Amanda M., 2006-NMCA-133, ¶ 30 (affirming an adjudication of abuse where “[the	3
m]other was aware that something was wrong with [the child]” and there was “expert	4
testimony that injuries like [the child’s] would result in immediately apparent signs	5
of trauma” and concluding that “[t]hese signs were sufficient to have put [the	6
m]other on notice that [the child] required immediate medical attention”), with	7
Michelle B., 2001-NMCA-071, ¶ 15 (reversing a finding of abuse against the mother	8
based on sexual abuse by the father where the record was “silent” as to evidence	9
establishing that the mother knew or should have known that the father intended to	10
injure the child or had a propensity to sexually abuse the child).	11
CONCLUSION	12
{25} 	Having examined the evidence in the light most favorable to CYFD in view	13
of CYFD’s theories of child abuse in this case, we conclude that CYFD failed to	14
establish by clear and convincing evidence that Child is an “abused child” under	15
Section 32A-4-2(B)(4). We therefore reverse the adjudication of abuse as to Mother	16
As noted, the autopsy report and photographs were not made part of the appellate
record. Regardless, given that the timing of all but one of Sibling’s bruises could not
be established and no testimony or evidence described how the bruises would have
appeared at the time Father described, the possible discrepancy between Father’s
description and what the autopsy later revealed is not indicative of negligent care or
deceit, as CYFD suggests.

19
and Father. Because we reverse on this basis, we do not reach Parents’ claims of	1
error as to the aggravated circumstances finding.	2
{26} 	IT IS SO ORDERED.	3
_________________________________	4
JENNIFER L. ATTREP, Judge	5
WE CONCUR:	6
_________________________________	7
JANE B. YOHALEM, Judge	8
_________________________________	9
KATHERINE A. WRAY, Judge	10