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State ex rel. Children, Youth and Families Department v. Rosalia M.

Court of Appeals of New Mexico

April 26, 2017

ROSALIA M., Respondent-Appellant, IN THE MATTER OF MONIQUE L. and MICHAEL L., Children.

         APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY Camille Martinez Olguin, District Judge

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

          Law Office of Jane B. Yohalem Jane B. Yohalem Santa Fe, NM for Appellant

          The Law Offices of Ramsey & Hoon, LLC Twila A. Hoon Mark A. Ramsey Albuquerque, NM Guardians Ad Litem


          STEPHEN G. FRENCH, Judge

         {1} Rosalia M. (Mother) appeals the district court's order terminating her parental rights to two of her children (Children). She raises two issues on appeal: deprivation of due process and structural error. First, Mother argues that her due process rights were violated when counsel for the Children, Youth and Families Department (CYFD) improperly "coached" witnesses prior to the termination hearing by providing witnesses with a document containing their anticipated testimony and CYFD counsel's opening and closing arguments. Mother argues this left her with no meaningful opportunity to cross-examine the witnesses, and artificially ensured the consistency and credibility of the witnesses. Second, Mother argues the due process violation qualifies as structural error requiring reversal because it affected the reliability of the entire proceeding.

         {2} Based on our review of the record and the district court's response and remedy upon learning of the document provided to the witnesses, we conclude Mother was afforded due process and the proceedings were not rendered fundamentally unfair. We affirm the order terminating Mother's parental rights.

         I. BACKGROUND

         {3} Mother's parental rights to Children were terminated pursuant to NMSA 1978, Section 32A-4-28(B)(2) (2005) based on a finding of neglect as defined by NMSA 1978, Section 32A-4-2(E)(2). At the termination hearing on October 29, 2014, the attorney for CYFD called witness Kristiana Desiderio, the permanency planning worker from August 2013 to July 2014 for Mother, the father of the children (Father), and Children. Ms. Desiderio's testimony included the reasons Children were in state custody, information about the referrals she made to Mother and Father for assessments and evaluations, details about their supervised visits with Children, and the results of various drug tests. On cross-examination, Father's attorney asked Ms. Desiderio how she prepared for her testimony, given that she was no longer a CYFD employee. Ms. Desiderio said she read an outline prepared by CYFD's attorney, which he emailed to her two days before the hearing.

         {4} Initially, CYFD's attorney objected to questions about the substance of the outline based on attorney-client privilege. Ms. Desiderio was excused from the courtroom while the parents' attorneys made several other objections. Through the course of this discussion, CYFD's attorney explained that the outline Ms. Desiderio received included the information Ms. Desiderio would testify to, the information the other witnesses for CYFD would testify to before Ms. Desiderio took the stand, and CYFD's opening and closing arguments. Father's attorney argued that to permit Ms. Desiderio to testify as CYFD planned would amount to a violation of Father's due process rights because Father was unable to effectively cross-examine Ms. Desiderio because Ms. Desiderio's testimony was based on the content of the outline rather than her own memory. Mother's attorney objected on the same grounds. Both moved to strike Ms. Desiderio's testimony.

         {5} The district court noted "the tension" between improperly scripting a trial and properly preparing witnesses for trial, and took Ms. Desiderio's copy of the outline under seal. The district court also allowed further cross-examination of Ms. Desiderio. Additionally, CYFD's attorney, Mother's attorney, and Father's attorney questioned Ms. Desiderio about the contents of the outline and which sections of the outline she read as voir dire on the motion to strike her testimony. Ultimately, the district court denied the motion to strike Ms. Desiderio's testimony and terminated the parental rights of Mother and Father. Mother appeals the order terminating parental rights based on a violation of her right to due process, arguing the violation resulted in structural error requiring reversal. Additional facts are provided throughout the discussion as needed.


         A. Preservation

         {6} CYFD argues that Mother's attorney failed to preserve the due process claim. During the hearing, Mother's attorney only argued that emailing the outline to the department's witnesses violated Rule 11-615 NMRA, which requires the exclusion of witnesses from the courtroom when invoked. Because Mother's argument on appeal is purportedly different than the argument she made ...

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