September 26, 2019- CYFD v. Anthony B., No. A-1-CA-38155

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO ex rel.	2
CHILDREN, YOUTH & FAMILIES	3
DEPARTMENT,	4
Petitioner-Appellee,	5
v. 	NO. A-1-CA-38155	6
ANTHONY B.,	7
Respondent-Appellant.	8
and	9
DEANNA C.,	10
Respondent.	11
IN THE MATTER OF	12
ANTOINETTE B.,	13
Child.	14
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY	15
Grace B. Duran, District Judge	16
Children, Youth & Families Department	17
Rebecca J. Liggett, Chief Children’s Court Attorney	18
Santa Fe, NM	19
Kelly P. O’Neill, Children’s Court Attorney	20
Albuquerque, NM	21
for Appellee	22
Court of Appeals of New Mexico
Filed 9/26/2019 8:45 AM

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Law Offices of Jane B. Yohalem	1
Jane B. Yohalem	2
Santa Fe, NM	3
for Appellant	4
Jennifer L. Muson	5
Las Cruces, NM	6
Guardian Ad Litem	7
MEMORANDUM OPINION	8
HANISEE, Judge.	9
{1} 	Father appeals following the district court’s termination of his parental rights.	10
On appeal, Father challenges whether the Children, Youth and Families Department’s	11
(CYFD) efforts to assist him were reasonable and whether the district court’s	12
conclusion that those efforts were reasonable was supported by clear and convincing	13
evidence. This Court issued a notice of proposed disposition, proposing to affirm.	14
Father filed a memorandum in opposition that we have duly considered. Unpersuaded,	15
we affirm.	16
{2} 	In this Court’s calendar notice, we proposed to affirm the district court’s	17
termination of Father’s parental rights as the district court’s findings appeared to be	18
supported by substantial evidence, and the findings appeared to support the district	19
court’s determination of termination of Father’s parental rights. [CN 7] We also	20

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proposed to affirm on grounds that CYFD was not obligated to act as an advocate for	1
Father and track filings in a separate criminal proceeding on his behalf. [CN 6] We	2
additionally noted that, based on Father’s minimal and temporary participation in his	3
treatment plan, as well as his failure to visit with Child when he was able and his	4
expressed preference that Mother have sole responsibility for Child, there is no	5
indication that earlier knowledge that he could have contact with Child would have	6
changed his conduct or the result. [CN 7]	7
{4} 	In his memorandum in opposition, Father contends:	8
(1) that CYFD’s efforts to assist Father in remedying the causes and	9
conditions that led to CYFD custody were not reasonably calculated to	10
assist Father given Father’s disabilities; and (2) that CYFD failed to	11
show by clear and convincing evidence that, with assistance reasonably	12
calculated to meet his needs, Father would not be able to remedy the	13
causes and conditions of his abuse of Child in the foreseeable future.	14
[MIO 2]	15
{5} 	We construe issue (1) as a motion to amend the docketing statement, which did	16
not initially contend that CYFD failed to tailor its efforts to any disability of Father’s.	17
In cases assigned to a summary calendar, a motion to amend the	18
docketing statement (when asserting other than fundamental error or	19
jurisdictional issues) will be granted only if:	20
1. 	It is timely;	21
2. 	It states all facts material to a consideration of the new issues	22
attempted to be raised;	23

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3. 	It states those issues and how they were preserved or shows why	1
they did not have to be preserved;	2
4. 	It states the reason why the issues were not originally raised and	3
shows just cause or excuse for not originally raising them; and	4
5. 	It complies in other respects with the appellate rules insofar as	5
necessary under the circumstances of the case.	6
State v. Rael, 1983-NMCA-081, ¶ 15, 100 N.M. 193, 668 P.2d 309. We deny motions	7
to amend the docketing statement if the issue that the appellant is seeking to raise is	8
not viable. State v. Munoz, 1990-NMCA-109, ¶ 19, 111 N.M. 118, 802 P.2d 23.	9
{6} 	The heart of Father’s first issue is his contention that “CYFD knew from the	10
outset of this case that Father had both significant mental health issues and borderline	11
intelligence.” [MIO 6] CYFD purportedly knew of these issues because Father	12
promptly complied with the requirement that he undergo a psychological evaluation,	13
from which the Citizen’s Review Board indicated doubt that Father would be able to	14
live on his own. [MIO 6; see also 1 RP 47]	15
{7} 	Father is correct that CYFD has an obligation to design reasonable support in	16
light of individual circumstances and that “no qualified individual with a disability	17
shall, by reason of such disability, be excluded from participation in or be denied the	18
benefits of the services, programs, or activities of a public entity[.]” State v. Penny J.,	19
1994-NMCA-143, ¶ 12, 119 N.M. 328, 890 P.2d 389. In the present case, Father	20
indicates that CYFD required him “to determine the status of a criminal court order	21

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on his own” [MIO 8] and contends that CYFD’s failure to independently determine	1
whether visitation was barred did not constitute reasonable efforts [MIO 9]. However,	2
Father also indicates that CYFD did not, in fact, require Father to describe the impact	3
of the criminal order, but instead only asked him to “get CYFD’s case worker a copy	4
of the order or a report on its content.” [MIO 4; see also 1 RP 140 (stating that Father	5
“has not provided [CYFD] with a copy of the no contact order”)] In addition, the	6
record shows that CYFD “asked [F]ather and his attorney to address” the purported	7
no-contact order. [1 RP 84 (emphasis added)] This Court is unpersuaded by Father’s	8
arguments that the district court erred in concluding that CYFD’s actions did not	9
amount to a denial of reasonable assistance to Father. See Farmers, Inc. v. Dal Mach.	10
& Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 (stating that	11
he appellate court presumes that the trial court is correct, and the burden is on the	12
appellant to clearly demonstrate that the trial court erred).	13
{8} 	Moreover, despite Father’s contention that CYFD’s failure to ascertain the	14
actual contents of the criminal court order “delayed all effective treatment of Father	15
for a full year and a half” and effectively allowed the Father-Child bond to	16
disintegrate, we note that Father has offered no other indication that earlier knowledge	17
that he could have contact with Child would have changed his conduct or the result.	18
[CN 4] Cf. In re Candice Y., 2000-NMCA-035, ¶ 33, 128 N.M. 813, 999 P.2d 1045	19

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(involving the conduct of a guardian ad litem, reiterating that there is no reversible	1
error when there is no prejudice). Indeed, despite Father’s assertion that he “succeeded	2
with the aspects of his treatment plan he was able to participate in,” he has not	3
provided additional facts from the record that persuade this Court that 	earlier	4
discovery of the true nature of the criminal order would have changed the fact that he	5
otherwise engaged in minimal and temporary participation in his treatment plan, failed	6
to visit with Child when he was able, and expressed a preference that Mother have	7
sole responsibility for Child. [MIO 4; CN 7] We therefore conclude that Father has	8
failed to show error in the district court’s conclusion that CYFD failed to provide	9
reasonable efforts in light of Father’s claimed disabilities.	10
{9} 	Regarding Father’s second issue, because we disagree with the foundation for	11
Father’s argument—that CYFD’s efforts were not reasonably calculated to meet	12
Father’s needs—we do not address the resultant hypothetical issue of whether, if	13
provided different assistance, Father might have been able to remedy the causes and	14
conditions that led to CYFD custody.	15
{10} 	Based on the foregoing, we hold that Father has not satisfied his burden to	16
demonstrate error in the proposed summary disposition. See Hennessy v. Duryea,	17
1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly	18
held that, in summary calendar cases, the burden is on the party opposing the proposed	19

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disposition to clearly point out errors in fact or law.”). Thus, for reasons set forth in	1
our notice and in this opinion, we affirm the district court’s order terminating Father’s	2
parental rights, and deny Father’s motion to amend as non-viable.	3
{11} 	IT IS SO ORDERED.	4
__________________________________	5
J. MILES HANISEE, Judge	6
WE CONCUR:	7
_________________________________	8
MEGAN P. DUFFY, Judge	9
_________________________________	10
BRIANA H. ZAMORA, Judge	11