January 16, 2020- CYFD v. Mack R., No. A-1-CA-38432

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
STATE OF NEW MEXICO ex rel. Filed 1/16/2020 10:37 AM

CHILDREN, YOUTH & FAMILIES A.
ae

DEPARTMENT, : / > !
Mark Reynolds

Petitioner Appellee,

6] Vv. No. A-1-CA-38432

MACK R.,
Respondent- Appellant,

and

SAMANTHA B,.,
Respondent,

IN THE MATTER OF MACK R. JR.,
Child.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Steven Blankinship, District J udge

Children, Y outh & Families Department

Rebecca Liggett, Chief Children’s Court Attomey
Santa Fe, NM

Kelly P. O’ Neill, Children’s Court Attomey
Albuquerque, NM

for Appellee

Office of Nancy L. Simmons, P.C.
Nancy L. Simmons
Albuquerque. NM

for Appellant

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Erinna Marie Atkins	1
Alamogordo, NM	2
Guardian Ad Litem	3
MEMORANDUM OPINION	4
VANZI, Judge.	5
{1} 	Respondent Mack R. (Father) appeals from the district court’s judgment	6
terminating his parental rights. In this Court’s notice of proposed disposition, we	7
proposed to summarily affirm. Father filed a memorandum in opposition (MIO),	8
which we have duly considered. Remaining unpersuaded, we affirm.	9
{2} 	In Father’s memorandum in opposition, he now argues, pursuant to State ex	10
rel. Children, Youth & Families Department v. Alicia P., 1999-NMCA-098, 127	11
N.M. 664, 986 P.2d 460, that (1) for summary calendar purposes, this Court must	12
accept Father’s version of the facts to the extent that they conflict with the district	13
court’s findings of fact [MIO 9], and (2) the district court impermissibly placed the	14
burden of proof on Father to demonstrate that he completed his treatment plan and	15
alleviated the causes and conditions that brought Child into custody [MIO 10].	16
{3} 	In support of his first argument, Father contends he presented evidence at the	17
termination of parental rights (TPR) hearing that “he was employed and 1iving with	18
his family, and that his evaluation stated that once he completed anger management	19
therapy and parenting classes, he could be ready for reunification.” [MIO 9-10]	20
Father’s argument, however, misinterprets this Court’s standard of review. We	21

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acknowledge that he may have presented such evidence at the TPR hearing for the	1
district court to consider. However, the district court’s order indicates that it was	2
provided with other evidence indicating that Father’s rights should be terminated,	3
including sporadic visiting; failure to complete anger management and parenting	4
classes; failure to properly inform the Children, Youth and Families Department (the	5
Department) of his living arrangements; failure to confirm any details about his	6
employment; 	and 	concerns 	regarding 	Father’s 	Texas 	residence, 	where 	the	7
Department is legally unable to place child. [3 RP 467, 473-80] Father has not	8
contested any of the district court’s factual findings as being unsupported by	9
evidence presented at the TPR hearing but has instead outlined evidence presented	10
to the district court that would support a different result. In such a circumstance, we	11
defer to the district court’s weighing of the conflicting evidence. See State ex rel.	12
Children, Youth & Families Dep’t v. Tammy S., 1999-NMCA-009, ¶ 13, 126 N.M.	13
664, 974 P.2d 158 (“This Court will uphold the termination if, viewing the evidence	14
in the light most favorable to the judgment, a fact[-]finder could properly determine	15
that the clear and convincing [evidence] standard was met.”); see also State ex rel.	16
Children, Youth & Families Dep’t v. Amanda H., 2007-NMCA-029, ¶ 19, 141 N.M.	17
299, 154 P.3d 674 (“We employ a narrow standard of review and do not re[]weigh	18
the evidence.”).	19

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{4} 	To 	the 	extent 	Father 	relies 	on 	our 	Supreme 	Court’s 	non-precedential	1
dispositional order In re Tye B., No. 31,226 dec. (N.M. Sup. Ct. May 15, 2009) (non-	2
precedential), such reliance is unavailing. In re Tye B. dealt with a situation where	3
the proposed summary disposition relied on facts in the record proper despite the	4
mother’s argument that the facts relied on were not presented at the TPR hearing. Id.	5
¶ 7. Father has made no such argument here, and accordingly we conclude the	6
district court did not err.	7
{5} 	Father 	additionally 	argues 	that, 	at 	the 	TPR 	hearing, 	the 	burden 	was	8
impermissibly placed on him to prove that he had ameliorated the causes and	9
conditions that brought Child into custody. [MIO 10] Father contends that the district	10
court shifted the burden because it relied on his failure to provide evidence of his	11
having secured employment to the Department. [MIO 11] However, Father appears	12
to confuse compliance with his treatment plan, which was ordered by the district	13
court in its adjudication order, with the burden placed on him at the TPR hearing.	14
Father’s treatment plans universally required him to (1) maintain safe stable housing	15
and employment; (2) maintain contact with the Department twice a month by phone	16
or in person; (3) and follow all recommendations of the Department. [see e.g., 1 RP	17
49-50, 88-89, 127-128] Evidence showing that Father failed to complete these items	18
of his treatment plan does not establish that the district court impermissibly shifted	19
the burden of proof onto Father but instead was properly presented by the	20

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Department to help establish that the causes and conditions were unlikely to be	1
alleviated in the foreseeable future. Further, the district court’s termination order	2
repeatedly acknowledged that the burden was on the Department, stating:	3
New Mexico law requires that [the Department] demonstrate, by clear	4
and convincing evidence, that a child has been neglected or abused as	5
defined by [NMSA 1978,] Section 32A-4-2 [(2017, amended 2018)].	6
[The Department] must also establish that the causes of the neglect or	7
abuse 	are 	unlikely 	to 	change 	in 	the 	foreseeable 	future, 	despite	8
reasonable efforts by [the Department] to assist the parent in adjusting	9
the conditions that render the parent unable to properly care for the	10
child. 	[NMSA 	1978.] 	Section 	32A-4-28(B)(2)[(2005)] 	(emphasis	11
added).	12
[3 RP 479] Having failed to point to anything in the record demonstrating otherwise,	13
Father has not met his burden of demonstrating error on appeal. See Farmers, Inc.	14
v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063	15
(explaining that we presume correctness on appeal, and the appellant must clearly	16
and affirmatively demonstrate district court error).	17
{6} 	Accordingly, for the foregoing reasons and the reasons outlined in our notice	18
of proposed disposition, we affirm the district court’s order terminating Father’s	19
parental rights.	20
{7} 	IT IS SO ORDERED.	21
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______________________________	23
LINDA M. VANZI, Judge	24

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WE CONCUR:
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JENNIFER L. ATTREP, Judge
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Jacqueline R. Medina
JACQUELINE R. MEDINA, Judge
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