STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee,
RAYMOND D., Respondent-Appellant, and ALMA F., Respondent, and IN THE MATTER OF ADRIAN F., a Child.
FROM THE DISTRICT COURT OF LUNA COUNTY Jennifer E. DeLaney,
Children, Youth & Families Department Charles E. Neelley,
Chief Children's Court Attorney Rebecca J. Liggett,
Children's Court Attorney Santa Fe, NM for Appellee.
Office of Jane B. Yohalem Jane Bloom Yohalem Santa Fe, NM for
Office of David H. Gorman PC David H. Gorman Silver City, NM
Guardian Ad Litem.
MICHAEL E. VIGIL, Judge.
The joint motion for rehearing filed by the parties is
granted. The formal opinion filed in this case on May 8,
2017, is hereby withdrawn, and this opinion is substituted in
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.
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.
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.
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.
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
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 unexpectedly received a sentence of two-and-one-half
years instead of ten years on the pending state charges, with
a scheduled parole date of June 2016.
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 ...