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State ex rel. Children, Youth and Families Department v. Raymond D.

Court of Appeals of New Mexico

May 8, 2017

RAYMOND D., Respondent-Appellant, and ALMA F., Respondent, and IN THE MATTER OF ADRIAN F., a Child.

         APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY Jennifer E. DeLaney, District Judge

          Children, Youth & Families Department Charles E. Neelley, Chief Children's Court Attorney Rebecca J. Liggett, Children's Court Attorney Santa Fe, NM for Appellee.

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

          Law Office of David H. Gorman PC David H. Gorman Silver City, NM Guardian Ad Litem.


          MICHAEL E. VIGIL, Judge.

         {1} Father appeals from a judgment terminating his parental rights to Child for neglect pursuant to NMSA 1978, Section 32A-4-28(B)(2) (2005). The sole issue presented is whether the district court erred in concluding that termination is in Child's best interests on the basis of substantial, admissible evidence. We affirm.


         {2} Child was placed in the custody of the New Mexico Children, Youth and Families Department (CYFD) on August 14, 2013, when Child was eight years old, and the causes and conditions that brought Child into CYFD custody were for physical abuse, medical neglect, emotional abuse, and substance abuse by Mother. Mother's parental rights were also terminated, but she has not appealed. We discuss facts and circumstances related to Mother's termination only insofar as they relate to Father's appeal.

         {3} At all times during the case, Child needed intensive mental health treatment, medication, and services. Since being taken into CYFD custody, Child went back and forth from the Peak Psychiatric Residential Treatment Facility (Peak), and Bonem Home Facility (Bonem), a mental health residential treatment center. The only exceptions were for one week when Child was placed in a foster home and when Child briefly lived with Father in October 2013.

         {4} Father began serving a federal prison term in 2010, and in July 2013, shortly before Child was taken into CYFD custody, Father was released on probation. In October 2013, Child was released from Peak and temporarily placed with Father. During that time, Father had great difficulty attending to Child's needs. While living with Father and his paternal grandparents, Child punched his grandparents, tried to punch and bite Father, and needed to be physically restrained by Father to prevent Child from Child banging his head on the floor. Father testified that he felt Child needed a higher level of care, and that he also needed training on how to meet Child's needs. On November 2, 2013, Father was arrested on new state charges, and CYFD took Child back into custody. Father remained incarcerated and had no further contact with Child.

         {5} On November 13, 2013, Mother pled no contest to neglect of Child, and Mother was ordered to participate in a treatment plan. Child remained in CYFD custody for 2014 while CYFD worked with Mother; however, Mother failed to comply with the treatment plan.

         {6} Father was facing a ten-year potential penitentiary sentence on the state charges stemming from his November 2013 arrest, and on this basis, Father stipulated to a finding that reunification with Child was futile on February 19, 2015. The district court accepted the stipulation, made a finding that reunification was likely futile, and ordered that CYFD was relieved of providing treatment services to Father. See NMSA 1978, § 32A-4-22(C)(1) (2016) (providing that the district court may determine that reasonable efforts at reunification are not required to be made when it finds that the efforts would be futile). On the same day, Father also pled no contest to neglect of child due to his incarceration. See NMSA 1978, § 32A-4-2(E)(4) (2009, recodified by 2017 N.M. Laws, ch. 64, § 2, as § 32A-4-2(F)(4)) (defining a neglected child in part as a child whose parent "is unable to discharge that person's responsibilities to and for the child because of incarceration[.]"). On April 13, 2015, Father received a sentence of two-and-one-half years on the pending state charges, with a scheduled parole date of June 2016.

         {7} CYFD filed its motion to terminate parental rights as to both Mother and Father on June 5, 2015, on the basis of neglect. At the time of the termination of parental rights (TPR) hearing on January 22, 2016, Child was residing at Bonem, and had been there for approximately five months.

         {8} Shasta Rael, Child's therapist at Bonem, was responsible for Child's individual therapy and weekly family therapy sessions, which mother participated in by phone. Under cross-examination by Child's guardian ad litem (GAL), Rael was asked her opinion about Child's demeanor after the family therapy sessions, and Rael answered that Child was usually calm, but confused about whether he would be reunited with his parents or be adopted. Having testified on direct examination, that Mother's participation in the weekly family therapy sessions had been inconsistent, Rael added in the GAL's cross-examination that when there is inconsistency in his family therapy sessions, Child becomes emotionally volatile, he demonstrates self-harm, and he has conflicts with his peers. The GAL then asked Rael whether it would be in Child's best interests to continue family therapy with his Mother, and Father objected on the basis that this was not a proper question for lay opinion testimony, and that no foundation was laid to qualify Rael as an expert to answer the question. The GAL responded that he was only asking for her opinion as a layperson, which went to the weight of her testimony and not its admissibility. The district court overruled Father's objection. Rael then testified that Child is confused about his future and what the future holds for him, and that family ...

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