August 31, 2016 – Coulton Quevado, et al. v. N.M. CYFD, No. 34,345, BuSV

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: __ August 31, 2016

NO. 34,345

COULTON QUEVEDO, by and through his
Attormey-in-Fact (with power of attormey), AIMEE
BEVAN; BARBARA GUILFOYLE, individually;
SUSAN WECKESSER, as Conservator for RYAN
MORGAN; CHERYL MORGAN, individually;
JORDAN ALMAN/ZA, individually; and MARC
FLEMING, individually,

Plaintiffs-A ppellants,
V.

NEW MEXICO CHILDREN, YOUTH & FAMILIES
DEPARTMENT, NEW MEXICO LICENSING AND
CERTIFICATION AUTHORITY, a division of the
NEW MEXICO COMMUNITY OUTREACH AND
BEHAVIORAL HEALTH PROGRAMS, and NEW
MEXICO DEPARTMENT OF WORKFORCE
SOLUTIONS,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Franais J. Mathew, District Judge

McGinn, Carpenter, Montoya & Love, PA
Randi McGinn
A. Elicia Montoya
Michael E. Sievers
Albuquerque, NM
for Appellants
Law Office of Michael Dickman
Michael Dickman
Santa Fe, NM
for Appellees

1Plaintiffs’ complaint also named the Department of Workforce Solutions
(DWS), a cabinet-level department of the state. NMSA 1978, § 9-26-4 (2007). The
district court granted summary judgment “in favor of the [s]tate [d]efendants,”
including both CYFD (and its Licensing and Certification Authority) and DWS. While
on appeal Plaintiffs state that they appeal the grant of summary judgment in its
entirety, they posit no arguments related to DWS’s duties to them nor do they cite to
any statutes or regulations defining DWS’s obligations vis á vis TBR. We therefore
consider Plaintiffs’ appeal of the grant of summary judgment to DWS abandoned. See
State ex rel. Office of State Eng’r v. Lewis, 2007-NMCA-008, ¶ 74, 141 N.M. 1, 150
P.3d 375 (“A party that fails to present argument or authority to support a contention
OPINION
BUSTAMANTE, Judge.
{1} 	Plaintiffs appeal the grant of summary judgment in favor of the Children,
Youth, and Families Department (CYFD) on the ground that CYFD was immune from
suit under the New Mexico Tort Claims Act. We conclude that questions of material
fact preclude summary judgment and reverse.
BACKGROUND
{2} 	Tierra Blanca Ranch High Country Youth Program (TBR) is a private, for-
profit business in New Mexico that provides troubled adolescent residents with
schooling, counseling, and therapy. CYFD is a cabinet-level department of the state
government. NMSA 1978, §§ 9-2A-1 to -24 (1992, as amended through 2011).
{3} 	Plaintiffs Quevedo, Morgan, Almanza, and Fleming, together with the other
plaintiffs (collectively, Plaintiffs), filed a multi-count complaint in 2013 against
CYFD1 and TBR alleging that while they were participants in TBR’s program, they

runs a very substantial risk that this Court will not address the contention, either
because of the failure of argument or authority, or because the party is deemed to have
abandoned the contention.”).
2
were physically and emotionally abused by TBR staff and other participants. Some
also allege that they were deprived of adequate food, denied access to their families,
shackled, and forced to perform extreme exercise. Plaintiffs further allege that CYFD
knew of abusive practices at TBR, that TBR was not licensed pursuant to statute and
CYFD regulations governing licensing of “multi-service homes” and “community
homes,” and that CYFD negligently failed to license and regulate TBR. They point to
the fact that, in 2005, CYFD initiated the licensing process with TBR. CYFD
subsequently stated in a 2006 letter to TBR that it “ha[d] determined that TBR is a
multi[-]service home under [S]ection 7.8.3.10(B) [NMAC] of the Shelter Care
Regulations” and that “TBR must have a license to continue in operation.” However,
CYFD eventually ceased its efforts to license TBR. CYFD maintains that “the
applicable New Mexico statutes [do not] allow[] or require[] CYFD to license TBR[].”
{4} 	Instead of answering the complaint, CYFD filed a motion for summary
judgment on the ground that the so-called “building waiver” in NMSA 1978, Section
41-4-6(A) (2007) of the New Mexico Tort Claims Act (the TCA) does not waive
immunity for Plaintiffs’ claims. See NMSA 1978, §§ 41-4-1 to -30 (1976, as amended
through 2015); Rule 1-056 NMRA. After a hearing on the motion for summary

3
judgment, the district court granted the motion. Plaintiffs appeal. Additional facts are
included as pertinent to our discussion of Plaintiffs’ arguments.
DISCUSSION
{5} 	“Summary judgment is proper if there are no genuine issues of material fact and
the movant is entitled to judgment as a matter of law.” Callaway v. N.M. Dep’t of
Corr., 1994-NMCA-049, ¶ 2, 117 N.M. 637, 875 P.2d 393 (internal quotation marks
and citation omitted). “However, summary judgment should not be used as a
substitute for trial on the merits so long as one issue of material fact is present in the
case.” Id. “In addition, when the facts are insufficiently developed or further factual
resolution is essential for determination of the central legal issues involved, summary
judgment is not appropriate.” Id. “An issue of fact is ‘material’ if the existence (or
non-existence) of the fact is of consequence under the substantive rules of law
governing the parties’ dispute.” Martin v. Franklin Capital Corp., 2008-NMCA-152,
¶ 6, 145 N.M. 179, 195 P.3d 24. Our review of summary judgment is de novo.
Farmington Police Officers Ass’n v. City of Farmington, 2006-NMCA-077, ¶ 13, 139
N.M. 750, 137 P.3d 1204.
{6} 	Here, the relevant substantive law is the TCA, which “grant[s] governmental
entities and employees a general immunity from tort liability, but . . . waive[s] that
immunity in certain defined circumstances.” Cobos v. Doña Ana Cty. Hous. Auth.,

4
1998-NMSC-049, ¶ 6, 126 N.M. 418, 970 P.2d 1143; see § 41-4-4(A). “In each of
these waivers the Legislature identified a specific existing duty on the part of public
employees, . . . which, if breached, could result in liability ‘based upon the traditional
tort concepts of duty and the reasonably prudent person’s standard of care in the
performance of that duty.’ ” Cobos, 1998-NMSC-049, ¶ 6 (quoting Section 41-4-
2(B)).
{7} 	“The ‘building waiver’ waives governmental immunity for damages caused by
the negligence of public employees while acting within the scope of their duties in the
operation or maintenance of any building, public park, machinery, equipment[,] or
furnishings.” Id. ¶ 7 (internal quotation marks and citation omitted); see § 41-4-6. In
Cobos, the Court held that the building waiver is not limited to public buildings,
stating that “[t]he Legislature defined ‘scope of duties’ to mean ‘any duties that a
public employee is requested, required, or authorized to perform . . . regardless of the
time and place of performance.’ ” Cobos, 1998-NMSC-049, ¶ 8 (omission in original)
(quoting Section 41-4-3(G)). “Accordingly, the ‘building waiver’ in Section 41-4-6
on its face excepts immunity for the negligent operation or maintenance of any
building by a public employee acting within the scope of duty.” Cobos, 1998-NMSC-
049, ¶ 8.

5
{8} 	Moreover, “the waiver is not limited to injuries resulting from a physical defect
on the premises.” Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, ¶ 10, 310
P.3d 611. “Instead, we interpret Section 41-4-6(A) broadly to waive immunity where
due to the alleged negligence of public employees an injury arises from an unsafe,
dangerous, 	or 	defective 	condition 	on 	property 	owned 	and 	operated 	by 	the
government.” Encinias, 2013-NMSC-045, ¶ 10 (internal quotation marks and citation
omitted). “The waiver applies to more than the operation or maintenance of the
physical aspects of the building, and includes safety policies necessary to protect the
people who use the building.” Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 9,
140 N.M. 205, 141 P.3d 1259.
A. 	The “Building Waiver” Permits Suit When There Is a Duty of Care
Created by a Relationship Between the Parties
{9} 	Case law indicates that the relationship between a governmental entity and a
person can influence whether the building waiver applies in a given circumstance.
Two cases are particularly instructive. In Cobos, the plaintiff sued the Doña Ana
County Housing Authority (Housing Authority) for the wrongful death of her
daughter and granddaughters as a result of a fire. 1998-NMSC-049, ¶ 4. The plaintiff
and her family “were participants in a federally[]subsidized low-income housing
program administered by the . . . Housing Authority. Their home was privately owned
and rented to them through the [Housing] Authority’s Section 8 Existing Housing

6
Program.” Id. ¶ 2. The Housing Authority argued that the building waiver did not
apply to permit suit against it because it did not have a sufficient legal interest in the
home, which was owned by a private individual. Id. ¶ 4. The Court of Appeals
affirmed the dismissal of the complaint on immunity grounds and because the
Housing Authority had not received the required notice under the TCA. Id. ¶¶ 4-5.
{10} 	The Supreme Court granted certiorari to address only “whether [the p]laintiff
[had] stated a claim under the building waiver based on the duties of the public
employees who appear as individual defendants in [that] case.” Id. ¶ 5. It held first that
“the effect of the [building] waiver should not be determined by the legal status of or
the title to the real property, but should instead be determined by an examination of
the public employees’ duties.” Id. ¶ 7. It next observed that “statutes, regulations, and
contracts [are] sources of duties of ordinary care imposed on public employees that
may bring them within a [TCA] waiver[,]” id. ¶ 12, and made a detailed examination
of statutes and regulations governing the Housing Authority. Id. ¶¶ 13-14. The
Municipal Housing Law authorized the Housing Authority to “construct, maintain,
operate[,] and manage any housing project[,]” which was defined as “any work or
undertaking of the county to provide decent, safe, and sanitary dwellings . . . for
persons of low income.” Id. ¶ 13 (omission in original) (emphasis, internal quotation
marks, and citations omitted). It also required compliance with federal regulations

7
connected with funding through the federal Section 8 Existing Housing Program. Id.
¶ 14. Through the program, “the [Housing] Authority screens for and certifies a
qualified needy participant, and represents that it will subsidize the participant’s rental
of approved homes to an extent that is prorated by income, need, and family size. The
[Housing] Authority then contracts with the owner of the property to provide rental
housing for the participant.” Id. This arrangement “create[d] a relationship among the
[Housing] Authority, the private landowners, and the family in need.” Id. In addition,
federal regulations required the Housing Authority to inspect the home before leasing
it and annually thereafter and gave the Housing Authority the right to terminate the
contract with the owner if the owner failed to maintain the home to certain standards.
Id. The Court concluded that “[u]nder the state law and the federal regulations, the
[Housing] Authority exercised at least some control over the quality of the private
housing by inspecting and selecting the proper dwelling and by providing in its
contract with the owners a large degree of control over the building.” Id. It concluded
that “the relationships of the actors . . . imposed at least limited duties of operation or
maintenance on [Housing] Authority employees” such that the plaintiff’s claim could
proceed under the building waiver provision of the TCA. Id. ¶ 18.
{11} 	In reaching this conclusion, the Court rejected the Housing Authority’s
argument that its relationship with the home and owner was “one of mere regulation

8
and inspection of private property[,]” id. ¶ 15, or the result of a “general regulatory
relationship between the government and its citizens.” Id. ¶ 16. The Court stated that
[t]he Legislature created the Authority for the purposes of operating and
maintaining housing projects in a decent, safe[,] and sanitary condition.
The Housing Authority . . . chose to do so by using private property in
the 	manner 	prescribed 	by 	the 	federal 	regulations. 	Thus, 	the
privately[]owned home was substituted for publicly[]owned low-income
housing . . . , [and the Housing Authority’s] duties under the Municipal
Housing Law and Existing Housing Program went far beyond a mere
duty to inspect and regulate private conduct.
Id. ¶ 15; see id. ¶ 16 (stating that the Housing Authority’s “voluntary undertaking to
effectuate the policies in [the Municipal Housing Law] by providing [the p]laintiff’s
family with safe housing they could not otherwise obtain” and stating that [t]his
undertaking gives rise to a more specific relationship among the parties than does
general regulation for the public good”).
{12} 	In Young v. Van Duyne, this Court considered whether the building waiver
could apply to permit suit against CYFD based on CYFD’s failure to inform the
plaintiff’s family that the child they fostered and later adopted had violent tendencies.
2004-NMCA-074, ¶ 3, 135 N.M. 695, 92 P.3d 1269. The child later killed the
plaintiff’s wife with a baseball bat. Id. This Court held that the plaintiff’s claims
survived a Rule 1-012(B)(6) NMRA motion to dismiss and that the plaintiff “must be
permitted to proceed on the merits of his claim that CYFD operated the [plaintiff’s]
foster home within the meaning of the [building] waiver.” Young, 2004-NMCA-074,

9
¶¶ 17, 23. Its reasoning was based in part on the special concurrence in M.D.R. v. State
ex rel. Human Services Department, in which Judge Minzner wrote that “[t]he
placement of a child in foster care within a private home involves the state in the lives
of its citizens in a unique way” because the statutes and regulations governing foster
care required the state to maintain a degree of control over the child. 1992-NMCA-
082, ¶ 17, 114 N.M. 187, 836 P.2d 106 (Minzner, J., specially concurring); see Young,
2004-NMCA-074, ¶ 20. Although the claims presented in M.D.R. were based on
allegations that the state negligently placed a child in the plaintiffs’ foster home, Judge
Minzner observed that claims related to the day-to-day functioning of the foster home
might have fallen within the “operation” prong of the building waiver. M.D.R., 1992-
NMCA-082, ¶ 21. Based on the special concurrence in M.D.R. and Cobos, the Young
Court remanded to permit the plaintiff to “prove a regulatory scheme or conduct from
which a fact[-]finder can conclude pre-adoption operation of the [plaintiff’s] home as
contemplated under [the building waiver].” Young, 2004-NMCA-074, ¶¶ 20-21, 35.
{13} 	We recognize that, because of its procedural posture, Young is not dispositive
of whether CYFD was “operating” foster homes so as to permit suit under the building
waiver. Similarly, Cobos is not dispositive. Nevertheless, Young and Cobos together
suggest that the building waiver may apply when an agency undertakes to provide
housing for clients when permitted or required to do so under specific statutory

10
authority. Cobos, 1998-NMSC-049, ¶ 16 (stating that the Housing Authority’s
“voluntary undertaking to effectuate the policies in [the Municipal Housing Law] . .
. [gave] rise to a more specific relationship among the parties than does general
regulation for the public good”).
B. 	CYFD Owes a Duty of Ordinary Care to Children Under Its Jurisdiction
{14} 	As indicated in Cobos, CYFD’s duty is imposed in a variety of statutes and
regulations. See id. ¶ 12 (“Our appellate courts regularly look to statutes, regulations,
and contracts as sources of duties of ordinary care imposed on public employees that
may bring them within a [TCA] waiver.”). For instance, the Children’s Code
establishes standards for the housing of children by CYFD. The Children’s Shelter
Care Act, the purpose of which is to “divert children out of the juvenile justice
system,” NMSA 1978, § 32A-9-2(B)(2) (1993), provides for the placement by CYFD
of children alleged to be in need of supervision, children determined to be in need of
supervision, or alleged delinquent children “in a community-based shelter-care
facility.” NMSA 1978, § 32A-9-6 (1993); see NMSA 1978, § 32A-9-3(B)-(D) (1993).
Other parts of the Children’s Code indicate that “community-based shelter-care
facilities” include the home of a relative, a licensed foster home or group home, or “a
facility operated by a licensed child welfare services agency[.]” NMSA 1978, § 32A-
4-8 (1993); see NMSA 1978, § 32A-3B-6 (1993). Similarly, children alleged to be

11
neglected or abused, or from a family in need of services, may be placed with a family
member, or in a licensed foster home, facility operated by a licensed child welfare
services agency, or a facility provided for in the Children’s Shelter Care Act. Sections
32A-4-8, -3B-6. Placement of children alleged to be delinquent or youthful offenders
is limited to a similar list of facilities. NMSA 1978, § 32A-2-12 (2009).
{15} 	In addition to these statutes governing where CYFD may place children, CYFD
has 	promulgated 	extensive 	licensing 	requirements 	and 	regulations 	governing
residential shelter-care facilities for children, including crisis shelters, multi-service
homes, community homes, and “[n]ew or [i]nnovative programs” that provide
children’s services, as well as foster homes. 7.8.3.2 NMAC (09/15/1975, as amended
through 08/15/2011) (licensing requirements for shelter-care homes); 8.26.4 NMAC
(licensing requirements for foster and adoptive homes). The shelter-care regulations
specify the records that must be kept for each child, licensing requirements for each
facility, reporting requirements, and space and building requirements, as well as
setting standards for medical care, nutrition, housekeeping, waste disposal, and
seclusion rooms, among other things. 7.8.3.2 NMAC (12/23/1987, as amended
through 05/15/2001). More relevant to Plaintiffs’ claims, the regulations require
facilities in which CYFD is permitted or required to place or refer children pursuant
to statute or regulation to “support, protect, and enhance the rights of children”

12
including “the right to receive visitors in private at reasonable times” and “the right
to written and telephone access.” 7.8.3.28 NMAC(B)(7), (8). The regulations also
prohibit use of “unusual or unnecessary punishments including, but not limited to,”
physical exercise as a form of punishment, denial of food, water, or rest, denial of
visiting or communication privileges, use of restraints, verbal abuse, and spanking,
hitting, or “aggressive physical contact with a child.” 7.8.3.80(F) NMAC. The
regulations 	also 	include 	requirements 	for 	staffing 	levels 	and 	records, 	staff
qualifications, staff training and evaluation, and staff health certificates and criminal
background checks. 7.8.3.30 to .34 NMAC. Similarly, the statutes and regulations
governing foster care, discussed in M.D.R., provide for substantial oversight of foster
homes and foster parents. 1992-NMCA-082, ¶ 17 (Minzner, J., specially concurring);
see 8.26.4 NMAC. Both the shelter-care regulations and foster home regulations
clearly address a wide variety of aspects of the day-to-day operation of the subject
facilities.
{16} 	Even “community homes,” which are excluded from particular regulations
governing residential shelter-care facilities, see 7.8.3.2 NMAC, and “group homes”
are required to “observe standards comparable to pertinent recognized state or national
group home standards for the care of children[.]” NMSA 1978, § 9-8-13(B) (2007)
(defining “group home” as “any home the principal function of which is to care for

13
a group of children on a [24]-hour-a-day residential basis,” which (1) “receives no
funds as such directly from or through the department” and (2) “is a member of any
state or national association that requires it to observe standards comparable to
pertinent recognized state or national group home standards for the care of children”
(emphasis added)); 8.26.6.7(D) NMAC (regulations governing community homes,
defining a community home as “a facility which operates 24 hours a day and provides
full time care, supervision[,] and support to no more than 16 children in a single
residential building, and which meets the definition of ‘group home’ as outlined in .
. . [Section] 9-8-13.”); 7.8.3.2 NMAC (stating that community homes are subject to
only some of the regulations in 7.8.3 NMAC).
{17} 	What we glean from these statutes and regulations is that CYFD has an
obligation to house children in its care in homes or facilities that meet certain
minimum health and safety standards. This obligation may create a relationship
between CYFD, the homes or facilities in which children are placed, and the children.
See Cobos, 1998-NMSC-049, ¶ 14. We conclude that the waiver of immunity in
Section 41-4-6(A) permits suit against CYFD when such a relationship exists.
C. 	Questions of Material Fact Preclude Summary Judgment
{18} 	We turn now to the immediate question presented by Plaintiffs’ appeal. The
question centers factually on whether and under what circumstances, children were

14
sent or referred to TBR by CYFD, a question that raises a genuine issue of material
fact, requiring reversal and remand. Once answered, the issue becomes a legal one,
what duty of care, if any, CYFD owed to any particular child placed or referred to
TBR by CYFD. Based on the facts and arguments on appeal, we construe Plaintiffs’
assertions to go beyond a failure by CYFD to license and regulate TBR. Plaintiffs
argue that CYFD “failed to operate and maintain TBR safely despite having a duty to
do so.” Plaintiffs’ assertions can be read as being similar to those made at the motion
to dismiss stage in Cobos and in Justice Minzner’s scenario in M.D.R., to include an
assertion that CYFD failed to exercise ordinary care “to provide for the care,
protection, and wholesome mental and physical development of children” under
statutory or regulatory circumstances requiring CYFD to do so and to do so in a
manner that could have prevented the alleged abuse of one or more children sent or
referred to TBR by CYFD. 	To be explored in further discovery and proof are
Plaintiffs’ allegations and any evidence in the record in regard to whether, and if so
to what extent, CYFD was involved in sending or referring children to TBR, and what
duty existed, if any, to follow up on their well-being. Included within this analysis
is the extent, if any, indicated by evidence in the record, to which CYFD’s juvenile
justice division may have received funds earmarked for TBR in 1999, and also the
extent, if any, to which inferences can be drawn that TBR and CYFD had financial

2In support, Plaintiffs attached a copy of the general appropriations bill
containing the earmark to TBR and a complaint filed by Scott and Colette Chandler,
who own and operate TBR, in which the Chandlers asserted that “[o]ver the existence
of the TBR Youth Program, TBR Youth Program has received youths from New
Mexico [CYFD], referrals from juvenile justice and parole, the courts, as well as
private placements.” The Chandlers further stated that “[f]or enrollment in the TBR
Youth program, Scott Chandler is contacted either by a program facilitator, a social
worker, a . . . Juvenile Justice Police Officer [sic], therapist and/or a parent.”
15
dealings then or at any other time. We note that, at the hearing on the motion, CYFD
appeared to admit that CYFD had placed children at TBR. Since CYFD did not
respond to Plaintiffs’ allegations in writing and the admission was only in a passing
comment, we decline to give this statement more import than is deserved. In spite of
CYFD’s statement, we conclude that the questions of whether and under what
circumstances children were placed at TBR by CYFD present disputed material
factual issues.2
{19} 	In its pleadings related to the motion for summary judgment, CYFD did not
respond to Plaintiffs’ assertions that CYFD sent children in its care to TBR or that
CYFD has or had a financial arrangement with TBR. The district court did not set out
the undisputed facts on which it relied in granting summary judgment.
{20} 	In reviewing a motion for summary judgment, the district court “must resolve
all reasonable inferences in favor of the nonmovant and must view the pleadings,
affidavits, depositions, answers to interrogatories and admissions in a light most
favorable to a trial on the merits.” Garcia-Montoya v. N.M. Treasurer’s Office, 2001-

16
NMSC-003, ¶ 7, 130 N.M. 25, 16 P.3d 1084. “Summary judgment is an extreme
remedy that should be imposed with caution[,]” and is improper if the nonmovant
demonstrates “a reasonable doubt as to the existence of a genuine factual issue.”
Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶¶ 12, 22, 135 N.M. 539, 91 P.3d 58
(internal quotation marks and citation omitted). Here, Plaintiffs’ assertions raise a
reasonable doubt as to the existence of material factual issues, to wit, whether CYFD
placed children in its care at TBR.
CONCLUSION
{21} 	We conclude that questions of material fact preclude summary judgment on the
issue of whether the TCA’s building waiver applies to permit Plaintiffs’ suit. We hold
that summary judgment should have been denied. See Espinoza v. Town of Taos,
1995-NMSC-070, ¶ 5, 120 N.M. 680, 905 P.2d 718 (“Summary judgment is
inappropriate when resolution of a factual dispute is required to determine a legal
question 	before 	the 	[c]ourt.”). 	We 	therefore 	reverse 	and 	remand 	for 	further
proceedings.
{22} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
I CONCUR:

MICHAEL E. VIGIL, Chief Judge

JONATHANB. SUTIN, Judge

17