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State ex rel. Children, Youth and Families Department v. Donna E.

Court of Appeals of New Mexico

June 8, 2017

DONNA E. and HARLEY E., Respondents-Appellants, IN THE MATTER OF SARAI E. and STEPHEN E., Children.

         APPEAL FROM THE DISTRICT COURT OF LEA COUNTY Raymond L. Romero, 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

          The Frith Firm Gilbert Houston Frith Trace L. Rabern Santa Fe, NM for Appellants

          Office of Hobbs City Attorney Michael H. Stone Hobbs, NM Guardian Ad Litem


          JONATHAN B. SUTIN, Judge.

         {1} This case involves an appeal from a ruling terminating the parental rights of Respondents Harley E. (Father) and Donna E. (Mother). Although the New Mexico Children, Youth and Families Department (CYFD) petitioned to have Respondents' parental rights terminated as to two of Respondents' children, one boy and one girl (Children, separately Son and Daughter), the district court ultimately terminated their parental rights only as to Daughter on the ground that they presumptively abandoned her, pursuant to NMSA 1978, Section 32A-4-28(B)(3) (2005). Despite only terminating Respondents' rights to Daughter and not Son, and although those rights were terminated on the basis of presumptive abandonment, the district court nevertheless entered extensive findings of fact and conclusions of law regarding abuse suffered by both Children.

         {2} On appeal, Respondents argue that: (1) there was no finding and there is no evidence to support a finding that Respondents caused the disintegration of the parent-child bond with Daughter, thus rebutting the presumption of abandonment under Section 32A-4-28(B)(3); (2) upholding presumptive abandonment violates Section 32A-4-28 and due process because the deterioration of the parent-child relationship in this case was caused by CYFD that wrongfully alleged Respondents produced or consumed child pornography and relied on that allegation to justify, seek, and obtain a no-contact order that prevented Respondents from having contact with Children for years; (3) the district court based its findings that Respondents abused Son on stale and unconfronted hearsay statements; (4) there is no clear and convincing evidence that Respondents directly abused Son or participated in the sexual abuse of Son; and (5) CYFD should pay all attorney fees of Respondents as a sanction for the delay and bad faith handling of this case.

         {3} We agree with Respondents that there were no findings by the court as to the cause of the disintegration of their bond with Daughter and that there is no evidence in the record to support a finding that Respondents caused the disintegration. We therefore hold that Respondents successfully rebutted the presumption of abandonment. Based upon our reversal of the abandonment determination by the district court and our remand for further proceedings, it is unnecessary for this Court to address Respondents' due process argument at this time. We therefore reverse the termination of parental rights. However, because the paramount concern in this case is the best interest of Daughter, we remand the case with instructions for additional consideration as to custody.

         {4} Because the judgment from which Respondents appeal terminated their rights only as to Daughter on a theory of presumptive abandonment, we need not and do not address Respondents' evidentiary arguments about the testimony and findings and conclusions regarding Son or any abuse or neglect of Children. We also decline to order that CYFD pay Respondents' attorney fees.


         {5} As noted by Respondents in their brief in chief, this case involves a "five-year odyssey." For the sake of understanding the magnitude of the delays and issues in this case, we find it necessary to provide a comprehensive procedural history and factual background.

         {6} In April 2010, Son, then six years old, disclosed to his elementary school principal, Gail Bryant, that his older brother, H.J., then eighteen years old, sexually penetrated him. This disclosure came after months of Son acting out sexually at school and after Bryant had spoken to Mother about his inappropriate behavior. Bryant testified that she discussed Son's behaviors in person with Mother. Mother indicated to Bryant that she did not know how to handle Son's sexual behaviors and disclosed to Bryant that she knew that when Respondents were not at home, H.J. and Son watched pornography together. Bryant recommended putting a block on the computer or removing the computer's keyboard in an effort to limit access, but Mother did not respond positively to either recommendation.

         {7} After Son disclosed the abuse, Bryant called CYFD, and the Hobbs Police Department became involved. Bryant reported to the police that Son disclosed to her that he had told Father what H.J. had done to him. When interviewed by the police, Son disclosed that H.J. "humped [him] in the butt" and that it had happened on more than one occasion. The police interviewed H.J., and H.J. "confessed to sexual penetration of his brother on two occasions about a year and half [prior]." Father was also interviewed and denied knowing anything about the abuse. The police informed Father that H.J. could no longer have access to Son and Daughter, and Father agreed that they would find somewhere for H.J. to stay. The police also informed Mother that H.J. could no longer have access to his younger siblings, and Mother said that she would reach out to her father to see if H.J. could stay with him. H.J.'s maternal grandfather later arrived at the police station and confirmed with officers that H.J. could stay with him for as long as needed.

         {8} Ten days after H.J. and Respondents were interviewed, Son was interviewed at a Safe House. During the interview, Son disclosed that he had seen H.J. "make . . . the family dog[] suck his penis." He also stated that "Bubba humped me in my butt and it started bleeding." Following the Safe House interview, the police determined that it would be appropriate to schedule an examination by a Sexual Assault Nurse Examiner (SANE). Mother accompanied Son to the examination. There were no physical findings during the examination, but during the interview, Son again disclosed that H.J. had sexually assaulted him. According to the SANE, during the examination Son began masturbating and, after telling Son to stop, Mother commented "[i]sn't he hung?" Son also stated during the interview that "[w]e have taken pictures of privates, and we print them off upstairs."

         {9} As a result of Son's disclosure during the SANE examination regarding naked pictures, the Hobbs Police Department received a search warrant from the Office of the District Attorney to collect various electronic and storage devices from Respondents' home. When the police arrived at Respondents' home, H.J., who was not supposed to be in the family home, answered the door. Mother, Son, and Daughter were also in the home. A CYFD worker was called to the home, and upon entering the home, noticed that it was filthy and in an unsanitary living condition. Children were taken into custody. Daughter was two years old at the time she was taken into CYFD custody.

         {10} As a result of the foregoing, an abuse or neglect petition was filed on June 15, 2010. In the petition, CYFD alleged that Son and Daughter were (1) abused children, pursuant to NMSA 1978, Section 32A-4-2(B)(1) (2009, amended 2016); (2) neglected children, pursuant to Section 32A-4-2(E)(2) (current version at Section 32A-4-2(F)(2)); and (3) neglected children, pursuant to Section 32A-4-2(E)(3) (current version at Section 32A-4-2(F)(3)). In August 2010, Respondents entered pleas of no contest with respect to all of the allegations in the petition. As part of their pleas, Respondents agreed to comply with a proposed disposition and treatment plan submitted by CYFD.

         {11} The district court held its initial judicial review on September 8, 2010. In its initial judicial review hearing order, the court found that Respondents had each "made sufficient effort to comply with the treatment plan[] and . . . to maintain contact with . . . [C]hildren." However, the court also stated that it was in the best interests of Children that custody remain with CYFD.

         {12} The district court held judicial review hearings in October and November 2010 and found that Respondents had made sufficient efforts to maintain contact with Children, but had made insufficient efforts to comply with the treatment plan. In its January 2011 judicial review hearing order, the court found that Respondents had each made sufficient efforts to attend services and comply with the treatment plan, but had not made significant progress. The court ordered that the parties participate in a family centered meeting.

         {13} The district court held the initial permanency hearing in February 2011. During the hearing, the court found that Children would not be returned home until the FBI completed its investigation of Father's computer. It was discussed that Son required a higher level of care, but that Daughter apparently would transition home within thirty to sixty days. The court found that Respondents had made sufficient efforts to comply with the treatment plan but neither had made progress toward alleviating or mitigating the causes necessitating removal of Children. The court ordered a permanency plan of reunification but ordered that Children were not to transition home until Respondents had made sufficient progress and the court had reviewed the transition plan. The court also ordered that Son, who had previously been placed with Daughter, be placed in a residential treatment facility.

         {14} Over the next three months, the district court continued to find that Respondents were not making sufficient progress. Although visits with Son were suspended in May 2011 due to Respondents' behavior during visits, the court found that "[a]s to [Daughter], . . . [CYFD] feels [Respondents] have made substantial progress toward eliminating the problem that caused [Daughter's] placement in foster care; it is likely [Daughter] will be able to safely return to [Respondents'] home within three months; and [Daughter's] return to [Respondents'] home will be in [Daughter's] best interest." (15} In June 2011, the district court found that Respondents each made sufficient efforts to comply with and cooperate in the treatment plan, although there were no findings regarding Respondents' progress. Daughter was transitioning home, and Respondents were having unsupervised overnight weekend visits with her.

         {16} On July 19, 2011, a permanency hearing was held. Although we have neither an audio recording of the hearing nor a transcript, a summary filed by the district court indicates that the court appointed special advocate or a detective from the Hobbs Police Department assigned to the case informed the court that some of the images found on the computer were possibly child pornography. At that point, all contact between Respondents and Children ceased. The permanency review hearing was continued until August 16, 2011.

         {17} At the August 16, 2011 permanency review hearing, the court found Respondents had made sufficient effort to participate in their treatment plan but continued to be unaware of their responsibility for the reason Children came into custody. It noted that all visits were to be cancelled on July 6, 2011, and specifically stated that there was to be no contact between Respondents and Children moving forward. The permanency plan was changed from reunification to adoption.

         {18} Following the permanency plan change, Respondents' attorney withdrew, and Mother and Father retained separate counsel. Judge Gary Clingman, who had previously presided over the case, recused himself, and the matter was reassigned to Judge William Shoobridge.

         {19} CYFD filed a motion for termination of parental rights on September 27, 2011. In support of its motion, CYFD alleged that Respondents had not made sufficient progress to allow Children to be safely returned to them in the foreseeable future. The motion specifically highlighted the fact that Respondents were unable to protect Children from H.J. and refused to acknowledge their responsibility to protect Children and to take responsibility for what occurred. CYFD noted the lack of supervision and the concerns about pornography on the computer. CYFD also alleged that due to the lack of supervision, Son suffered from sexual abuse, and Son attempted to molest Daughter. Mother responded to the motion and filed a counterpetition to the motion to terminate parental rights. In her counterpetition, Mother argued that she had complied with all CYFD requirements and court orders and demanded contact, visitation, and physical access to Children "to avoid damage to the [parent-child] relationship." Father followed suit.

         {20} The hearing on the motion for termination of parental rights was set to begin on January 3, 2012. However, CYFD moved to continue the hearing because the attorneys for CYFD had a scheduled training in Albuquerque, New Mexico that day. The court continued the hearing, and it was eventually reset to begin July 23, 2012. (21} The next permanency hearing took place in March 2012. The district court ordered that the permanency plan would continue to be adoption, that CYFD's legal custody would be extended for an additional year, and that the no-contact order would remain in effect.

         {22} A pretrial conference was held in June 2012. During the proceeding, counsel for the parties discussed meeting to view the images found on Respondents' computer at the Hobbs Police Department. The district court ordered that counsel be allowed to have supervised access to the computer images.

         {23} Later that month, Respondents filed a motion for summary judgment. In their motion, Respondents highlighted their cooperation and compliance and the fact that visitation was suspended and had been suspended for almost one year. They argued that, after viewing the evidence, it could not be concluded by the Hobbs Police Department that the images were, "by clear and convincing evidence[, ] child pornography." Because the motion for termination and the cessation of visitation were based on the notion that Respondents viewed and possessed child pornography and because there was not clear and convincing evidence that child pornography was on the computer, Respondents argued that summary judgment was appropriate.

         {24} Attached to the motion for summary judgment was a report from the Hobbs Police Department documenting the meeting wherein counsel viewed the images of possible child pornography. The report indicated that the meeting took place on June 22, 2012. The report stated that there were five images that "the [Regional Computer Forensics Laboratory] identified as possible child pornography, and . . . that [the New Mexico] Center for Missing [and] Exploited Children [(NMCMEC)] reported that these images were not matches to their database, and therefore, could not be identified as child pornography." The report also noted that the images were sent to Dr. Leslie Strickler, as requested by NMCMEC.[1] The pornographic images were found in a folder titled "Harley 2, " and the only webcam images tied to that folder were of H.J. The report stated that the "majority of the registry entries did not have a corresponding webcam image, so the users of these logins cannot be determined to be exclusively used by those listed[.]" The report also indicated that no criminal charges would be filed and that because there was no additional evidence to be processed, the Hobbs Police Department's involvement concluded. CYFD did not file a written response to the motion for summary judgment until thirty-three months later, in March 2015.

         {25} Although the parties met on July 23, 2012, i.e., the date for which the termination hearing had been set, that hearing was not held. During the hearing, the CYFD attorney informed the district court that Dr. Parsons, a necessary expert witness, was experiencing a medical emergency and would not make it to the hearing. According to CYFD, it could not put on a case without Dr. Parsons' testimony, and the attorney requested that the court continue the hearing. The court granted the oral motion for continuance and opted instead to use the time allotted to determine whether visitation should occur. The court heard testimony from Blair Kemp, the therapist at the Guidance Center of Lea County (the Guidance Center) where Respondents were receiving treatment; Adrianna Catano, the program manager at Family Time Visitation Center, who witnessed some visits between Respondents and Daughter; Father; Ruth Macy, the therapist who had been working with Son and Daughter; and Robin Huffman and Barbara Timm, both who had worked with Son at the residential treatment facility where Son was placed. The court ultimately ruled not to change visitation. It ordered that releases be signed so that the providers could communicate and emphasized the need for providers in this case to confer before the termination of parental rights hearing. The termination hearing was reset to begin on September 13, 2012. And again, the termination hearing had to be rescheduled because Dr. Parsons was unavailable.[2]

         {26} From September 2012 to February 2013, none of the parties made any movement on the case. However, a status conference was held in February 2013 at which CYFD informed the district court that the plan for CYFD was now reunification. The court entered its subsequent permanency order in March 2013. In its order, the court appointed Ted Wooldridge as the family therapist to assist with the goal of family reunification. The parties were to provide complete disclosure of therapeutic and evaluative records to Wooldridge, and Wooldridge was to "control the various aspects of the family therapy intervention including timing and duration of client contacts, parent and child visitation, contact with providers and ongoing services recommendations." The court also stated that "[g]rounds do not exist for termination of parental rights because existing evidence is insufficient to meet the burden of proof." The permanency plan was changed to reunification and legal custody of the children was extended for another year.

         {27} In June 2013, Respondents filed a motion for specific instructions for reunification. Respondents argued that they had not seen Children since July 2011, and the continued delay was causing "further emotional damage" to Children and Respondents. They argued that CYFD had not made a good faith effort to reunite Children with Respondents and requested attorney fees, tax, costs, and medical expenses. They also requested an immediate hearing during which the district court could enter specific instructions to CYFD for reunification.

         {28} A judicial review hearing was set for August 2013. Son's therapist, Marla Anaya, reported that she had one family session during which she noticed that Respondents needed to work on their marriage. The hearing was continued for "approximately [sixty] days in order to allow additional time for therapists to meet with the parties." The next hearing was set for November 2013. During the November 2013 hearing, the court indicated that the plan would remain reunification and would not adopt any changes. A judicial review/subsequent permanency hearing was set for December 2013.

         {29} During the December 2013 hearing, the district court found that adoption was appropriate. In changing the permanency plan, the court found that Respondents had "complied with recommendations of the treatment plan in effect, but also [found] that causes and conditions of neglect and abuse may still exist, moreover, given the amount of time . . . [C]hildren [had] remained in custody, and the testimony given at [the December 2013] hearing, a change of plan to termination of parental rights/adoption appear[ed] to be in the best interest of . . . [C]hildren." The court appointed a Rule 11-706 NMRA expert and ordered that Respondents submit to Minnesota Multiphasic Personality Inventory testing. The court ordered that Dr. Christopher J. Alexander administer the test. If Dr. Alexander was unable to serve, the court ordered that Dr. Marc A. Caplan be ...

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