March 26, 2013 – CYFD v. Raquel M., No. 31,869March 26, 2013 – CYFD v. Raquel M., No. 31,869

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: March 26, 2013
NO. 31,869
STATE OF NEW MEXICO ex rel.
CHILDREN, YOUTH AND FAMILIES
DEPARTMENT,
Petitioner-Appellee,
v.
RAQUEL M.,
Respondent-Appellant,
IN THE MATTER OF ANGEL N., n/k/a
CISCO N.,
Child.
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Charles C. Currier, District Judge
Children, Youth & Families Department
Oneida L’Esperance, Chief Children’s Court Attorney
Rebecca J. Liggett, Children’s Court Attorney
Santa Fe, NM
for Appellee

Jane B. Yohalem
Santa Fe, NM
for Appellant
Pittman Law Firm, P.C.
Judy A. Pittman
Roswell, NM
Guardian ad Litem

OPINION
SUTIN, Judge.
{1} 	Raquel M. (Mother) appeals the district court’s judgment terminating her
parental rights to Angel N., now known as Cisco N. (Child). Based upon its finding
that Child had been subjected to aggravated circumstances—specifically, that
Mother’s parental rights to Child’s sibling had previously been terminated—the
district court relieved the Department of its obligation to make further reasonable
efforts to reunify the family. Mother contends that because the prior termination was
the subject of a pending appeal in this Court, her right to due process was violated by
the aggravated circumstances finding. We conclude that Mother’s due process rights
were not violated, and we affirm.
LEGAL BACKGROUND
{2} 	When a child is found to be neglected or abused, the district court must order
the Children, Youth and Families Department (the Department) to design and
implement a treatment plan that reflects “reasonable efforts” on behalf of the
Department to preserve and reunify the family. NMSA 1978, § 32A-4-22(C) (2009);
see also State ex rel. Children, Youth & Families Dep’t v. Amy B., 2003-NMCA-017,
¶ 2, 133 N.M. 136, 61 P.3d 845 (explaining that the treatment plan shall outline the
Department’s reasonable efforts to reunify the family). Subject to court approval of

2
the treatment plan, the child’s parent is ordered to cooperate with its dictates. Section
32A-4-22(C). In some circumstances, however, the court may relieve the Department
of its obligation to employ reasonable efforts at reunification, including its obligation
to implement a treatment plan. Id. One such circumstance is a finding, by the court,
that the parent has subjected the child to aggravated circumstances. Section 32A-4-
22(C)(2). By definition, “aggravated circumstances” includes those circumstances in
which the parent has had parental rights over a sibling of the child terminated
involuntarily. NMSA 1978, § 32A-4-2(C)(4) (2009).
{3} 	A finding of aggravated circumstances also plays a role in the termination of
parental rights. 	“The Children’s Code gives the [district] court the authority to
terminate the parental rights of an abusive or neglectful parent.” 	State ex rel.
Children, Youth & Families Dep’t v. Mafin M., 2003-NMSC-015, ¶ 18, 133 N.M. 827,
70 P.3d 1266. Ordinarily, the court may not terminate parental rights unless the court
determines “that the conditions and causes of the neglect and abuse are unlikely to
change in the foreseeable future despite reasonable efforts by the [D]epartment . . .
to assist the parent in adjusting the conditions that render the parent unable to properly
care for the child.” 	NMSA 1978, § 32A-4-28(B)(2) (2005) (emphasis added). 	In
cases where the parent has subjected the child to aggravated circumstances, however,
the district court may find that efforts by the Department are unnecessary. Section

1 The abuse and neglect petition also pertained to Child’s father who is not a
party to this appeal.
3
32A-4-28(B)(2)(b). Under those circumstances, where the Department is excused of
its reasonable-efforts obligation, in order to succeed on a motion to terminate parental
rights, the Department must still prove that the conditions and causes of the abuse and
neglect would not change in the foreseeable future. Amy B., 2003-NMCA-017, ¶ 18.
FACTS
{4} 	On December 16, 2010, the district court entered a judgment terminating
Mother’s parental rights to a sibling Child. 	Mother appealed the December 16
judgment to this Court. See In re Isiah M., No. 31,057, slip op. (N.M. Ct. App. March
27, 2012). On February 4, 2011, while Mother’s appeal to this Court was pending,
the Department filed an abuse and neglect petition alleging that Mother had abused
and/or neglected Child. 1
{5} 	The abuse and neglect petition alleged the following facts in support of its
request that the district court find that Child was neglected and/or abused. On January
31, 2011, the Department responded to an emergency law enforcement referral
alleging physical neglect of Child. Law enforcement had entered a residence due to
outstanding warrants for the adult residents. 	When they entered the residence, the
officers “observed what they believed to be adults trying to place [Child, who was less

CORRECTION PAGE: Page 5, line 16, change “working” to “making”. No. 31869, filed 3-26-13, State ex rel. Children, Youth
& Families Department v. Raquel M., SGK.
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than three months old at the time] into a hole in the floor.” 	There was drug
paraphernalia throughout the residence. Mother was arrested pursuant to outstanding
warrants. Child was taken into the custody of the Department. As of the filing date
of the petition, Mother was incarcerated. 	Based on a mouth swab, Child tested
positive for methamphetamine, indicating that Child had been exposed to the drug
within thirty-six hours prior to being tested.
{6} 	The petition also alleged that Mother had subjected Child to aggravated
circumstances based on the December 16, 2010, judgment that terminated her parental
rights to Child’s sibling, Isiah. 	Owing to the aggravated circumstance of the
December 16, 2010, termination of Mother’s parental rights to Isiah, the Department
requested to be relieved of its obligation to make reasonable efforts to preserve and
reunify the family as to Child, pursuant to Section 32A-4-22(C)(2).
{7} 	Also on February 4, 2011, the Department filed its affidavit in support of an ex
parte custody order. In greater detail and with additional facts, the affidavit essentially
expanded upon the facts presented in the abuse and neglect petition. Among other
facts, the affidavit alleged that there was a bottle, a blanket, and a cell phone in one
of two holes in the floor. 	Further, law enforcement officers were said to have
observed a marijuana pipe and two methamphetamine pipes in the living room, as well

CORRECTION PAGE: Page 5, line 16, change “working” to “making”. No. 31869, filed 3-26-13, State ex rel. Children, Youth
& Families Department v. Raquel M., SGK.
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as a purse containing foil and plastic baggies, which the officers suspected to be
related to drugs. Mother had approximately fifteen warrants for her arrest.
{8} 	On February 7, 2011, the district court filed an ex parte custody order,
mandating that Child remain in the Department’s custody “until further order of the
[c]ourt.” 	On March 8 and April 19, 2011, the district court held an adjudicatory
hearing on the Department’s abuse and neglect petition. In its disposition order, the
court found by clear and convincing evidence that Mother’s parental rights to a sibling
of Child’s had been involuntarily terminated on December 16, 2010. Based on that
prior termination of parental rights, the district court found aggravated circumstances
as to Mother. The court also found that “further treatment efforts by [the Department]
would be futile”; accordingly, the court relieved the Department of making further
efforts to work a treatment plan with Mother.
{9} 	On May 17, 2011, the district court held an initial permanency hearing. The
court noted that owing to its April 19 finding of aggravated circumstances, it had
relieved the Department of making reasonable efforts and implementing a treatment
plan. The court found that “[t]he permanency plan proposed by the Department is
adoption[,]” which plan the court found appropriate. The court ordered that Child’s
permanency plan would be adoption.

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{10} 	On July 11, 2011, the Department moved to terminate Mother’s parental rights
to Child. 	In its motion, the Department stated that the “facts and circumstances
supporting 	. 	. 	. 	termination” 	were 	that 	Child 	was 	subjected 	to 	aggravated
circumstances in that the parental rights to a sibling had been terminated involuntarily
and that termination of parental rights would promote the physical, mental, and
emotional welfare needs of Child.
{11} 	A hearing on the Department’s motion to terminate Mother’s parental rights
was held on September 23, 2011. On October 20, 2011, the district court entered its
decision to terminate Mother’s parental rights. On appeal, Mother does not challenge
the district court’s factual findings. 	In pertinent part, those findings included
that Mother has a chronic illegal drug abuse problem; Mother’s parental rights were
involuntarily terminated in regard to Isiah; when Child was taken into Department
custody, “he had a high level of methamphetamine in his system”; and Mother had
been “in and out of jail since the beginning of this case.” Specifically, the court found
that Mother was incarcerated from January 31, 2011, through early May 2011; and on
September 13, 2011, Mother was arrested again for allegedly violating the conditions
of her probation.
{12} 	The court found that after Mother was released from jail in early May 2011, she
requested visitation with Child, and while she was incarcerated, she had some limited

7
visitation, but none after May 17, 2011, and beyond her initial request for visitation,
Mother made no further contact with the Department. 	The court also found that
Mother took advantage of services that were available to her during her January to
May 2011 incarceration, but after her release she did nothing to eliminate the causes
and conditions that brought Child into custody. In the court’s view, those causes and
conditions included:
A. 	Mother has never had a home.
B. 	Mother has never had employment.
C. 	Mother continues to use illegal drugs (the alleged probation
violation is for the use of illegal drugs).
D. 	Mother has never entered, let alone completed, any drug treatment
plan.
E. 	Mother did not follow up on working on her GED.
In addition, the court found that “[t]he only progress Mother has ever made has been
when she has been incarcerated[,]” and it is unknown when Mother will be released
from incarceration. 	Based on the foregoing facts, the court concluded that “[t]he
conditions and causes of the neglect and abuse that brought Child [into] custody are
unlikely to change in the foreseeable future.”
{13} 	The court also entered findings of fact and conclusions of law in regard to
Child’s interests. The court found that Child had been in the care of foster parents

8
since Child was taken into the Department’s custody, and the foster parents wished
to adopt Child. The court found that Child had bonded with the foster parents in a
parent/child relationship. And the court concluded that it was in the best interest of
Child to have Mother’s parental rights terminated and Child made available for
adoption.
{14} 	In accordance with its findings of fact and conclusions of law, the court
concluded that Mother’s rights would be terminated pursuant to Section 32A-4-
28(B)(2). 	On November 22, 2011, the court, referencing its October 20 decision,
entered its judgment terminating Mother’s parental rights. On March 27, 2012, this
Court entered a Decision affirming the termination of Mother’s parental rights to
Child’s sibling. See In re Isiah M.
{15} 	Mother appeals from the district court’s judgment terminating her parental
rights to Child. On Appeal, Mother argues that she was deprived of due process when
the district court found aggravated circumstances based upon the earlier termination
of her parental rights, when that case had yet to be resolved on appeal. 	She also
argues that the Legislature did not intend to authorize termination of parental rights
based on aggravated circumstances when the prior termination of parental rights
judgment is pending on appeal.

9
{16} 	We conclude that the statutory procedures employed in the district court
provided protection against the risk of an erroneous deprivation of parental rights,
even with a finding of aggravated circumstances, and even when there existed a
possibility the foundational judgment supporting that finding could be reversed on
appeal. And we do not believe that additional or substitute procedural safeguards are
required. Also, we reject Mother’s legislative intent argument. We affirm.
DISCUSSION
Mootness
{17} 	As an initial matter, we reject the argument made both by the Department and
the Guardian ad Litem that Mother’s appeal is moot because the earlier termination
was ultimately affirmed by this Court. A case is moot when there exists no actual
controversy and the appellate court cannot grant actual relief. Gunaji v. Macias, 2001-
NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008. 	Here, Mother’s due process claim
amounts to the contention that, in Mother’s words, “the district court’s premature
decision irreparably harmed Mother’s chances of reuniting with Child.” 	This
constitutes an actual controversy for which we could grant the “actual relief” of
remanding the case with instructions to the Department to make reasonable efforts to
assist Mother to reunify with Child. Accordingly, we conclude that Mother’s appeal
is not moot. We turn now to a consideration of the merits of Mother’s appeal.

10
Standard of Review
{18} 	“[T]he right to raise one’s child is a fundamental right protected by the
Fourteenth Amendment to the United States Constitution[.]” Mafin M., 2003-NMSC-
015, ¶ 18. Termination proceedings must therefore be conducted in a constitutional
manner that affords the parent due process of law. Id. “Due process of law requires
that termination proceedings be conducted with scrupulous fairness to the parent.” Id.
(internal quotation marks and citation omitted). 	We review de novo the question
whether Mother’s due process rights were violated when the district court terminated
her parental rights. Id. ¶ 17.
{19} 	To determine whether due process was satisfied in a termination proceeding,
we employ the three-part balancing test of Mathews v. Eldridge, 424 U.S. 319, 335
(1976). 	Mafin M., 2003-NMSC-015, ¶ 19. 	That test requires the weighing of
(1) Mother’s interest; (2) the risk to Mother of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and (3) the government’s interest. Id. Our Supreme
Court has recognized an equal balance between a parent’s fundamental interest in
regaining a parent-child relationship and the state’s interest in protecting the welfare
of children. Id. ¶ 20. In light of that balance, our Supreme Court has stated that “the

11
decisive issue centers on the second factor of the Mathews test.” 	Mafin M., 2003-
NMSC-015, ¶ 20.
Mother’s Due Process Argument
{20} 	Mother argues that finding aggravated circumstances on the basis of a prior
termination of parental rights that “may well be reversed” on appeal creates a
significant risk of an erroneous deprivation of her parental rights in regard to Child.
In Mother’s view, had she been afforded the time and opportunity to work a treatment
plan, with the Department’s assistance, the result of the proceedings in regard to Child
may well have been different.
{21} 	Mother’s argument rests upon the premise that the propriety of the prior
termination was placed “in doubt” while her appeal of the prior termination of her
parental rights was unresolved in this Court. 	Mother reasons that the risk of an
erroneous deprivation stemmed from the possibility that, had the earlier judgment
terminating 	her 	parental 	rights 	been 	reversed 	by 	this 	Court, 	the 	aggravated
circumstances finding, the corresponding deprivation of a treatment plan and lack of
Department support, and lack of time to achieve treatment goals, would have been
based upon a prior erroneous termination. According to Mother, had she received a
treatment plan, Department support, and time to achieve treatment goals, she may
have been able to reunify with Child. Mother contends that because of the court’s

12
premature determination of aggravated circumstances, termination of her parental
rights to Child was a “virtual certainty[.]” That virtually certain termination of her
rights to Child would thus have been based upon an erroneous assumption regarding
her ability to remedy the conditions that rendered her unable to properly care for
Child’s sibling. 	See § 32A-4-28(B)(2) (stating the basis upon which a court may
terminate a parent’s rights to his or her child).
{22} 	Mother argues that the risk of an erroneous decision arising out of the procedure
employed here is “unacceptably high” when measured against the importance of the
right at stake—that is, her fundamental right to parent Child. She further argues that
highly 	effective 	substitute 	procedures 	are 	readily 	available 	and 	that 	their
implementation would “far better [ensure] a fair and accurate decision, [and would]
cause little delay in finality for [Child].” More specifically, Mother argues that an
appropriate “alternative to rushing to find aggravated circumstances before a judgment
[has been disposed of] on appeal is to delay [the aggravated circumstances]
determination and to require [the Department] to both put in place a treatment plan
and [to] offer the parent assistance in working that plan.” In Mother’s view, delaying
an aggravated circumstances finding during the pendency of an appeal from the earlier
termination decision is a viable alternative that would conform with the routine

13
functioning of the Department and the district court. See, e.g., § 32A-4-22(C); NMSA
1978, § 32A-4-25 (2009); NMSA 1978, § 32A-4-25.1 (2009).
Mother’s Due Process Argument Is Unpersuasive
{23} 	Under the facts in this case, we are not persuaded that the district court’s
aggravated circumstances finding, while a prior termination was pending on appeal,
engendered a risk of an erroneous deprivation of Mother’s parental rights. 	The
aggravated circumstances finding did not condemn her to failure or lay the ground
work for the inevitable termination of her parental rights to Child. Mother was free,
on her own behalf, to engage in efforts toward reunification, yet she failed to do so.
See Amy B., 2003-NMCA-017, ¶ 5 (recognizing that, notwithstanding a finding of
aggravated circumstances, the mother was not “precluded . . . from making efforts on
her own behalf in an attempt to alleviate the conditions that led to the abuse and
neglect”). For example, among other things, Mother continued to use drugs
throughout the pendency of this case, and she remained unemployed and without a
home.
{24} 	Additionally, the district court may not terminate parental rights to a child
absent a finding “that the conditions and causes of the neglect and abuse are unlikely
to change in the foreseeable future[.]” See § 32A-4-28(B)(2). This finding is required
regardless of aggravated circumstances. Amy B., 2003-NMCA-017, ¶ 18. And it must

14
be supported by clear and convincing evidence. See Mafin M., 2003-NMSC-015, ¶
25 (recognizing that the Department is required to present clear and convincing
evidence to support termination of a parent’s parental rights). Thus, the risk of an
erroneous deprivation was minimal because had Mother exhibited a sincere, active,
and productive effort to reunify with Child, and had she acted to dispel the concerns
that gave rise to statutory exception to the treatment plan and Department efforts
requirements, she may well have prevailed in overcoming the Department’s
contention that the conditions and causes of the neglect and abuse were unlikely to
change in the foreseeable future. As it stands, however, Mother does not dispute the
“clear and convincing” nature of the evidence that supported the district court’s
decision to terminate her parental rights in this case.
{25} 	We next consider the probable value of additional or substitute procedural
safeguards that might have been employed in this case. Mother suggests only one
such procedural safeguard—that is, to have required the district court to delay an
aggravated circumstances finding until the earlier judgment was resolved on appeal
and, in the interim, to have provided her with a treatment plan aimed at reunification.
Under the facts of this case, Mother’s argument is unavailing. 	As indicated in the
earlier paragraphs, we do not view the risk of erroneous deprivation under the
circumstances to have been more than minimal. That view is fortified by the fact that

15
this Court affirmed the termination of Mother’s parental rights to Isiah four months
after the termination of Mother’s parental rights to Child. Had the circumstances in
this case including the timing of the events been substantially different, Mother may
have had a stronger position, however, under these facts, Mother’s argument provides
no basis for reversing the termination of parental rights and requiring the district court
to order the Department to engage in reasonable efforts toward reunification of
Mother and Child.
{26} 	We do not foreclose the possibility that in some cases where a prior termination
of parental rights is pending appeal, the facts or circumstances of the case may call for
delaying an aggravated circumstances determination pending the outcome of the
appeal. Whether the court should make an aggravated circumstances determination
and the timing of such a determination is properly left to the sound discretion of the
district court. See § 32A-4-22(C); Amy B., 2003-NMCA-017, ¶ 14 (recognizing the
court’s discretion to find aggravated circumstances). Despite Mother’s desire that we
do so, we will not attempt either to suggest guidelines or to impose a set of bright-line
factors to guide the court’s discretionary determination in that regard.
{27} 	In sum, we disagree with Mother’s due process arguments relating to the district
court’s aggravated circumstances finding and the timing of that finding. Under the
second Mathews factor, we conclude that the risk to Mother of an erroneous

16
deprivation under these circumstances was minimal and that no additional or
substitute procedural safeguards were required. See Mafin M., 2003-NMSC-015, ¶ 19.
Therefore, we reject Mother’s due process claim.
Mother’s Legislative Intent Argument
{28} 	Side-by-side with her due process argument, Mother argues that the district
court’s use of her prior termination of parental rights that was pending appeal
constituted reasonable reversible error because it was contrary to legislative intent.
Mother argues that such a procedure is inconsistent with two purposes of the
Children’s Code, specifically, (1) the preservation of the unity of the family whenever
possible, and (2) the provision of judicial and other procedures in which the parties
are assured a fair hearing and their constitutional and other legal rights are recognized
and enforced. See NMSA 1978, § 32A-1-3(A), (B) (2009). Mother also argues that
the Legislature’s use of the past tense in providing the definition of aggravated
circumstances in Section 32A-4-2(C)(4) indicates that the Legislature intended the
prior 	termination 	of 	parental 	rights 	to 	provide 	the 	basis 	of 	an 	aggravated
circumstances only where the “prior termination of parental rights was absolutely
final.” We reject Mother’s arguments.
{29} 	First, to the extent that Mother is arguing that because state law incorporates
notions of due process, the proceedings violated state law, having already rejected

17
Mother’s due process claim, we likewise reject her contention. 	Second, Mother
overlooks the fact that the preservation of family unity “whenever possible” is a
secondary consideration, with the primary consideration being “the care, protection[,]
and wholesome mental and physical development of children[.]” Section 32A-1-3(A)
(stating that the legislative purposes of the Children’s Code include “first to provide
for the care, protection[,] and wholesome mental and physical development of
children . . . and then to preserve the unity of the family whenever possible” and
explaining that the health and safety of children is the “paramount concern” (emphasis
added)). 	To that end, the district court has been given discretion to alleviate the
Department’s burden to engage in reasonable efforts at reunification under specific
circumstances, including the prior termination of parental rights to a child’s sibling.
See §§ 32A-4-2(C)(4), -22(C)(2).
{30} 	The enactment of the aggravated circumstances provisions was a response to
the federally recognized problem in abuse and neglect cases of a tendency to “err on
the side of protecting the rights of parents. . . . 	[The result of which was that] too
many children are subjected to long spells of foster care or are returned to families that
reabuse them.” Amy B., 2003-NMCA-017, ¶ 7 (internal quotation marks and citation
omitted). As recognized in Amy B., the aggravated circumstances provisions tend to
serve the best interest of the child because “[e]xperience has shown that with certain

18
parents, as is the case here, the risk of recidivism is a very real concern. Therefore,
when another child of that same person is adjudged a dependent child, it is not
unreasonable to assume [that] reunification efforts will be unsuccessful.” 	Id. ¶ 16
(internal quotation marks and citation omitted).
{31} 	Finally, Mother argues that the termination of parental rights is not “absolutely
final” when it is the subject of a pending appeal. Cf. State ex rel. Children, Youth &
Families Dep’t v. Brandy S., 2007-NMCA-135, ¶ 15, 142 N.M. 705, 168 P.3d 1129
(recognizing that a judgment terminating parental rights constitutes a final judgment).
She bases this argument on a perceived legislative intent that the aggravated
circumstances finding is to be delayed pending appeal of an earlier termination. We
are not persuaded. The Legislature could have limited the definition of aggravated
circumstances to those situations in which an appellant has exhausted her rights to
appeal, but it did not. See State v. Office of Pub. Defender ex rel. Muqqddin, 2012-
NMSC-029, ¶ 47, 285 P.3d 622 (recognizing that the Legislature is free to define
statutory elements as it wishes). Moreover, considering that the primary consideration
of the Children’s Code is the best interest of the child, see § 32A-1-3(A), and that
children’s interests are served by “timely and permanent placement[,]” State ex rel.
Children, Youth & Families Dep’t v. Maria C., 2004-NMCA-083, ¶ 45, 136 N.M. 53,
94 P.3d 796, we are not persuaded that the Legislature would choose to limit the

19
district court’s discretion with a mandate requiring the court to delay a finding of
aggravated circumstances in all cases coming within the definition of Section 32A-4-
2(C)(4) until an appeal of the prior termination was finally resolved in the appellate
process. See id. (defining aggravated circumstances as those circumstances in which
the parent has had parental rights over a sibling terminated involuntarily).
The Dissent
{32} 	Respectfully, the Dissent’s approach is problematic.
{33} 	To interpret “terminated” in Section 32A-4-2(C)(4) to mean that the issue has
been resolved by the highest court to which the parent might seek relief eviscerates
legislative intent. That intent is to avoid, where reasonable and appropriate, holding
a child in Department-custody limbo where, with respect to the child’s sibling, a
parent has or parents have already been proven not amenable to Department
reunification efforts or otherwise so unfit to parent as to inspire little hope that they
will be able to provide appropriate care for the child at issue. See §§ 32A-4-2(C)(4),
-4-22(C)(2); Amy B., 2003-NMCA-017, ¶¶ 7, 16.
{34} 	The interpretation results in an unintended mandate that, regardless of the
circumstances, where the earlier termination adjudication is on appeal, the parent is
guaranteed another go-round with Department reunification efforts for a period that
could linger on over a span of a year or more while the child remains in limbo.

20
Considering the high value of timely and permanent placement for children, see Maria
C., 2004-NMCA-083, ¶ 45, this interpretation runs afoul of the purpose of the
Children’s Code and does not have support in legislative intent. 	In addition, the
Dissent’s reliance on one dictionary definition of “terminate” leaves open unintended
and perhaps unwarranted interpretations or consequences with respect not only to the
meaning of “termination” throughout the Children’s Code, but also with respect to the
concept of “finality” in the appellate process.
{35} 	The Dissent’s view of the issue at hand as being whether “Mother should have
been provided services,” Dissent ¶ 44, evades focus on the real issue—whether
Mother’s due process right was violated. An aggravated circumstances finding does
not inevitably lead to deprivation of reasonable reunification efforts. The finding has
the limited effect of permitting the district court to exercise its discretion whether to
alleviate the Department’s burden to make such efforts. 	See § 32A-4-22(C)(2). In
considering the circumstances, the court can require the Department to engage in
reasonable reunification efforts. The due process risk that Mother associates with an
aggravated circumstances finding that is based on a potentially reversible prior
termination is minimized by the court’s discretionary function.
{36} 	Finally, the Dissent indicates that, under the majority’s opinion here, in all cases
in which reversal on appeal of an earlier termination relating to the sibling occurs, this

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Department v. Raquel M., SGK.
21
Court will be forced to “unring the ‘aggravated circumstances’ bell” with adverse
consequences. 	Dissent ¶ 45. 	While we acknowledge that reversal of an earlier
termination will result in further proceedings in the case involving the sibling as well
as the case in which an aggravated circumstances finding was made, we do not agree
that these possible circumstances dictate a ruling in this case that adopts Mother’s
position or the Dissent’s view. That position and view are based on an assumption
that is, in our view, unsupportable—that in every aggravated circumstances case, the
district court will relieve the Department of its reasonable efforts obligation.
Moreover, as we have expressed, we do not think that Mother’s position and the
Dissent’s view comports with plain language used by the Legislature, with legislative
intent, or with the goals of the Children’s Code. If we are mistaken, we respectfully
invite the Legislature to set the matter right.
CONCLUSION
{37} 	We affirm.
{38} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
I CONCUR:

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Department v. Raquel M., SGK.
22
___________________________________
RODERICK T. KENNEDY, Chief Judge
TIMOTHY L. GARCIA, Judge, dissenting.

23
GARCIA, Judge (dissenting).
{39} 	I respectfully dissent in this case. 	I would agree with Mother that the
Legislature did not intend for aggravated circumstances under Section 32A-4-2(C)(4)
to be applied in proceedings where the termination of parental rights over a sibling
remained unresolved on appeal. As a result, it is not necessary to address the related
due process issue raised in this appeal. Mother was entitled to assistance from the
Department to remedy the causes and conditions that rendered Mother unable to
properly care for Child and originally caused Child to come into the Department’s
custody.
{40} 	Section 	32A-4-2(C)(4) 	defines 	the 	particular 	element 	of 	aggravated
circumstances applied by the district court in this case as: “had parental rights over
a sibling of the child terminated involuntarily[.]” (Emphasis added.) Mother argued
that this definition requires completion and finality in the involuntary termination
proceedings pending for Child’s sibling, including any appeals. It is not disputed that
the termination proceedings for Child’s sibling were on appeal and remained
unresolved throughout Child’s district court proceedings in the present case. Because
of the district court’s decision to apply aggravated circumstances in this case, the
Department did not provide Mother with assistance under Section 32A-4-22(C) to

24
attempt reunification and to remedy the causes and conditions that rendered Mother
unable to properly care for Child.
{41} 	This Court reviews issues of statutory interpretation and construction de novo.
State ex rel. Children, Youth & Families Dep’t v. Andree G., 2007-NMCA-156, ¶ 17,
143 N.M. 195, 174 P.3d 531. 	The primary goal in statutory construction is “to
ascertain and give effect to the intent of the Legislature.” Lobato v. N.M. Env’t Dep’t.,
2012-NMSC-002, ¶ 6, 267 P.3d 65 (internal quotation marks and citation omitted).
Both parties recognize that when construing a statutory section in reference to the
statute as a whole, this Court will consider the several sections together so that all
parts are given proper effect and placed in the appropriate context. Reule Sun Corp.
v. Valles, 2010-NMSC-004, ¶ 15, 147 N.M. 512, 226 P.3d 611. “The appellate courts
examine the overall structure of the statute and its function in the comprehensive
legislative scheme.” State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d
1022. “[W]hen a statute is ambiguous, we may consider the clear policy implications
of its various constructions.” Id. The parties recognize that the statutory construction
for the language in Section 32A-4-2(C)(4) has not been previously interpreted by this
Court.
{42} 	Initially, the appellate courts start this review “by examining the words chosen
by the Legislature and the plain meaning of those words.” 	Reule Sun Corp.,

25
2010-NMSC-004, ¶ 15. Webster’s Dictionary provides several primary and secondary
definitions for the word “terminate.” 	Webster’s Third New Int’l Dictionary 2359
(1966). Primary definition includes: “a: to bring to an ending or cessation in time
sequence, or continuity : CLOSE . . . (benediction terminated the service).” 	Id. 	A
third primary definition states: 	“c: 	to end formally and definitely . . . (his
employment with the company was terminated).” 	Id. 	One of the secondary
definitions states “2: to set a limit to in space : serve as an ending, boundary, limit,
dividing line.” 	Id. Each of these definitions have a common principle to apply, they
recognize a definitive ending or finality to an event or proceeding. 	As such, an
unresolved proceeding, one that is not final and has not reached a definitive end, does
not meet the accepted general definition of “terminate” or its past-tense equivalent
“terminated.” In this case, the generally accepted definition of “terminated” would
appear to support Mother’s position—where a termination proceeding remains
unresolved on appeal and has not yet ended formally or definitely, parental rights to
a sibling have not been terminated under Section 32A-4-2(C)(4). 	However, our
Supreme Court has recognized that the application of the plain meaning rule does not
end an analysis. See State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d
939 (recognizing that the appellate courts will not rely upon the literal meaning of a

26
statute when such a construction would be absurd, unreasonable, or otherwise
inappropriate).
{43} 	We should be looking at the overall legislative scheme regarding the
termination of parental rights and address whether the plain meaning of the word
“terminated” in Section 32A-4-2(C)(4) contradicts the scheme established by the
Legislature under the Abuse and Neglect Act (the Act), NMSA 1978, §§ 32A-4-1 to
-34 (1993, as amended through 2009). The majority views this analysis in light of the
previous federally recognized problem— that abuse and neglect proceedings were
subjecting children to long spells in foster care or returning them to abusive parents.
Majority Opinion ¶ 30. 	This analysis does not explain why the plain meaning
interpretation of “terminated” under Section 32A-4-2(C)(4) would subject children to
long spells in foster care or return them to abusive parents. 	In fact, there is no
statutory basis under the Act to support the majority’s premise that such an
undesirable result would occur.
{44} 	At issue, is whether Mother should have been provided services from the
Department to attempt reunification and remedy the causes and conditions that
rendered Mother unable to properly care for Child. These are the same services and
plans designed into the Act for all parents who have been adjudicated as abusive or
neglectful that otherwise do not meet one of the two narrow statutory exceptions for

27
expediting the process. See § 32A-4-22(C). Neither the Department nor the majority
challenge the general statutory scheme under the Act. This general scheme attempts
to efficiently reunify a child with its natural parents and remedy the causes and
conditions that rendered a parent unable to properly care for a child in the first place.
The Act was enacted in 1993, presumably to help remedy the historic problem where
children spent long spells in foster care or were regularly returned to abusive parents.
Mother’s interpretation of “terminated” under Section 32A-4-2(C)(4) would not
impose any new obligations or procedures upon the Department that are not presently
in place. Implementing the standard reunification procedures in this case would not
have subjected Child to some indefinite period of limbo or an extraordinary wait for
final adjudication. Similar to any normal case, termination proceedings would timely
ensue if Mother failed to comply with the Department’s reasonable efforts to
effectuate reunification.
{45} 	Mother’s proposed statutory interpretation is far better than the alternative
proposed by the majority. Under the majority’s analysis, this Court would be forced
to unring the “aggravated circumstances” bell each time a district court erred in its
determination that the parental rights to a sibling were terminated but remained
unresolved on appeal. Reversal by this Court of a prior termination would not only
send the sibling’s proceedings back for reconsideration, it would also send the

28
“aggravated circumstances” case for the subsequent sibling back for consideration by
the district court for further Department efforts. When considering the best interests
of a child and the potential length of time a child could be subjected to further
custodial limbo and Department supervision, the majority’s decision neither comports
with the 	plain language used by the Legislature in Section 32A-4-2(C)(4) nor
efficiently carries out the Act’s comprehensive legislative scheme to avoid long
periods of potential supervision and foster care.
{46} 	In conclusion, I do not concur with the result reached by the majority in this
case. 	As a result, I would reverse the district court’s previous determination of
aggravated circumstances under Section 32A-4-22(C)(2) and remand for further
proceedings in an attempt to reunify the family in compliance with the Act.
__________________________________
TIMOTHY L. GARCIA, Judge