STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee,
ROSALIA M., Respondent-Appellant, IN THE MATTER OF MONIQUE L. and MICHAEL L., Children.
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
Office of Jane B. Yohalem Jane B. Yohalem Santa Fe, NM for
Law Offices of Ramsey & Hoon, LLC Twila A. Hoon Mark A.
Ramsey Albuquerque, NM Guardians Ad Litem
STEPHEN G. FRENCH, Judge
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.
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.
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.
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.
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
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 ...