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State ex rel. Children, Youth and Families Department v. William C.

Court of Appeals of New Mexico

April 21, 2017

STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee,
v.
WILLIAM C., JR., Respondent-Appellant, and IN THE MATTER OF SKYLA C., Child.

         APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY John F. Davis, District Judge

          Children, Youth & Families Department Charles E. Neelley, Chief Children's Court Attorney Kelly P. O'Neill, Children's Court Attorney for Appellee

          Law Office of Gina M. Maestas Gina M. Maestas for Appellant

          Jay Mueller Guardian Ad Litem

          OPINION

          JONATHAN B. SUTIN, Judge

         {1} William C. (Father) appeals from an order terminating his parental rights to his daughter, Skyla C. (Child). After the district court denied the Children, Youth and Families Department's (the Department) first motion to terminate Father's parental rights to Child, a second hearing on a second motion to terminate his parental rights was held. After the second hearing, the court granted the Department's motion and terminated Father's parental rights. On appeal, Father argues that: (1) the district court erred in allowing evidence at the second termination hearing regarding events that occurred prior to the first termination hearing, and (2) there was insufficient evidence to terminate his rights. We hold that the district court did not err in hearing evidence that preceded the first termination hearing and that there was sufficient evidence to terminate Father's rights. We therefore affirm.

         BACKGROUND

         {2} The Department, which had taken custody of Child on September 26, 2013, filed a neglect petition against Father and Child's mother, Allisha V. (Mother), on September 30, 2013. Child and Child's half-brother, who is not Father's biological son and who is not the subject of this appeal, were removed from the home due to concerns about Mother's and Father's alleged substance abuse, domestic violence, and mental health concerns. After both entered pleas of no contest, judgment was entered against Mother and Father that they neglected Child, pursuant to NMSA 1978, Section 32A-4-2(E)(2) (2009, amended 2016) (current version at Section 32A-4-2(F)(2)), and on February 20, 2014, the district court adopted a treatment plan.

         {3} On April 6, 2015, the Department filed its first motion for termination of parental rights as to both parents. After the Department filed its motion, Mother relinquished her rights in Child. The hearing on the motion was set for June 11, 2015. However, prior to the hearing the Department filed an unopposed motion to vacate and reset the hearing because a necessary witness was unavailable that day. The court did not reset the hearing, and the motion for termination of parental rights was heard on June 11, 2015. At the conclusion of that hearing, the court denied the Department's motion, but ordered that custody of Child was to remain with the Department. The Department filed its second motion to terminate Father's parental rights in Child on October 16, 2015, and the hearing on that motion was set for December 10, 2015.

         {4} At the beginning of the second termination hearing, the district court took judicial notice of the no contest plea entered into by Father in February 2014. Also, counsel for Father moved to clarify the scope of the inquiry, arguing that the "Benjamin O. cases" indicated that the court should only look at what had happened since the last hearing, i.e., June 11, 2015 to December 10, 2015, and should not consider what happened prior to the last hearing. The court ruled that the Department could present evidence regarding events that preceded that earlier termination of parental rights hearing and could also present any new information concerning what had occurred since the first hearing.

         {5} The first witness to testify was Edward Alvarez, who worked for Superior Drug Testing in Las Cruces, New Mexico. Mr. Alvarez testified that Father was referred by the Department on July 8, 2015. According to Mr. Alvarez, it was decided that Father's case worker, Ana Dominguez, would initially make contact with Father to describe the drug-testing procedure and then Father would contact Mr. Alvarez to discuss specifics and any questions. Father initially went to Superior Drug Testing on July 27, 2015, but Mr. Alvarez was not present and no testing was performed. Mr. Alvarez's first interaction with Father was on October 12, 2015, when Father arrived at the office. Father did not call Superior Drug Testing between July 27 and October 12. During Father's October 12 visit, he refused to have a hair follicle test performed. Father next came to the office on October 20, 2015, and a hair follicle test was performed. Father came into the office on October 23, 2015, but no testing was performed. The last time Mr. Alvarez heard from Father was on October 26, 2015. Mr. Alvarez reaffirmed that his understanding was that Ms. Dominguez would initially explain the process for calling in, but he was unsure if Father had in fact been informed of the procedure on July 27, 2015.

         {6} Anthony DeCorte, a licensed independent social worker and clinical therapist/supervisor at Nava Counseling Services (Nava) in Las Cruces, testified that the Department referred Father for substance abuse and mental health assessments to Nava on June 18, 2015. Father initially missed substance abuse assessments on July 9, 2015 and July 30, 2015, and he missed mental health assessments on November 13, 2015 and November 23, 2015. Mr. DeCorte eventually saw Father on November 30, 2015. Although Father never completed a substance abuse assessment, part of Father's mental health assessment evaluated his substance abuse issues. Mr. DeCorte diagnosed Father as having panic disorder, cannabis-use disorder, and stimulant-use disorder and recommended that Father participate in individual therapy, an anger management treatment group, and substance abuse treatment. He informed Father of those recommendations, Father was "open" to them, but to Mr. DeCorte's knowledge services had not started. He noted that Father's diagnoses would not necessarily prevent a person from being able to parent a child, as long as treatment was being received.

         {7} Wade C., Father's brother, testified that Child had been living with him since August 2015 and that he was willing to adopt her. He stated that Child needs consistency, structure, and counseling for her anxiety, depression, and learning disabilities. He had contact with Father maybe once every two months, and he was unaware of where Father was living or whether Father had a job. He expressed concerns about Child's needs and did not believe Father could meet those needs. He indicated that Father had a visit with Child several weeks before the hearing and had missed a visit the week before the hearing. Wade C. testified that Child exhibited depression after missing that visit with Father and that Child's depression and anxiety minimizes "when there is a consistent period of no contact" with Father. He testified that he has two other children and that they relate to Child like siblings.

         {8} Leslie Peterson was Father's permanency planning case worker from October 2014 to May 2015. Ms. Peterson referred Father for therapy at Mesilla Valley Hospital in Las Cruces and for urinalyses. She also referred Father to La Frontera in Las Cruces to assist him in dealing with his addictions. She reported that Father was inconsistent in attending therapy, and she spoke with Father sporadically. In November 2014 Father was "on track, " had electrical contracting work, and was living in a home with roommates. After that Father was inconsistent, and by January 2015 Father was living at a church office. Father told Ms. Peterson that he missed the therapy sessions because he was busy or because of conflicts with his job ...


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