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State ex rel. Children, Youth and Families Department v. Michael H.

Court of Appeals of New Mexico

October 11, 2017

STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee,
v.
MICHAEL H., Respondent-Appellant, and IN THE MATTER OF JAYDA'MAE S., Child.

         APPEAL FROM THE DISTRICT COURT OF GUADALUPE COUNTY Matthew J. Sandoval, 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 Offices of Nancy L. Simmons, P.C.: Nancy L. Simmons Albuquerque, NM for Appellant

          Arthur L. Bustos Las Vegas, NM Guardian Ad Litem

          OPINION

          HENRY M. BOHNHOFF, JUDGE

         {1} The district court ruled that Appellant Michael H. (Father) had neglected his child (Child) by abandoning her. Father argues that his lack of knowledge that Child's mother, Gina S. (Mother), who had custody of the infant, would neglect her and also his lack of certain knowledge through DNA testing that he in fact was the father of Child negate any conclusion of abandonmentunder NMSA 1978, Section 32A-4-2(A)(2) (2009, as amended 2016 and 2017), and thus neglect under Section 32A-4-2(F)(1) (current version at Section 32A-4-2(G)(1)). We reject Father's arguments, and therefore affirm.

         BACKGROUND

         {2} Child was born in March 2015. The New Mexico Children, Youth and Families Department (CYFD) took Child into custody on April 11, 2016. CYFD then filed an abuse/neglect petition on April 13, 2016 naming Mother and Father as respondents, and Carlos G. (Husband) as an interested party. Based on information provided by Mother, CYFD alleged that Father is the biological father of Child and that Mother had not been in a relationship or had contact with Father since she was one month pregnant with Child. The petition alleged that Father abused Child as defined in Section 32A-4-2(B)(1) (one "who has suffered or who is at risk of suffering serious harm because of the action or inaction of the child's parent, guardian or custodian") and Section 32A-4-2(B)(4) (one "whose parent, guardian or custodian has knowingly, intentionally or negligently placed the child in a situation that may endanger the child's life or health"). The petition also alleged that Father neglected Child as defined in Section 32A-4-2(F)(1) (one "who has been abandoned by the child's parent, guardian-or custodian") and Section 32A-4-2(F)(2) (one "who is without proper parental care and control or subsistence, education, medical or other care or control necessary for the child's well-being because of the faults or habits of the child's parent, guardian or custodian or the failure or refusal of the parent, guardian or custodian, when able to do so, to provide them").

         {3} The district court entered a stipulated order for DNA testing on May 18, 2016. On June 2, 2016, Mother entered a no contest plea to the allegation that she neglected Child under Section 32A-4-2(F)(2). The district court then conducted Father's adjudication hearing on July 7, 2016, during which the following witnesses testified: Mother; Amber Martinez, the CYFD permanency planning worker for Child; and Father.

         I. Mother's Testimony

         {4} Mother testified that she had just ended a relationship with another man when she began a sexual relationship with Father. Mother testified that she did not live with Father and that she did not have any relationship with him other than a sexual one. When Mother discovered she was pregnant, she immediately identified Father as the father of Child. Mother told Father she was pregnant with Child, and said that "[Father] believed me, like right away, he was all there for it, saying that, yeah, he was gonna take responsibility."

         {5} When Mother was three months pregnant, she told Father's live-in girlfriend that she was pregnant with Father's child. When Father learned that Mother had told his girlfriend that she was pregnant with Father's baby, Father told Mother that if she retracted the statement and told his girlfriend that her baby was not Father's, then Father would "take care of [her] and the baby." Mother acceded to Father's request and told the girlfriend that someone else was the father, but Mother did not tell anyone else that he was not Child's father. Shortly thereafter, Mother reaffirmed to Father's girlfriend that Father was the father of Child. Mother also received messages from Father's girlfriend acknowledging that Mother was pregnant with Father's child. Mother testified that, after she reaffirmed to Father's girlfriend that Father was the father of her baby, Father "dropped off the face of the earth."

         {6} Father did not provide any support to Mother during her pregnancy. Child was born in Las Vegas, New Mexico; Father was not present at the birth. After Child was born, Mother was told that in order to receive welfare benefits, she had to file a petition for child support from Father. Mother filed the child support petition, but "dropped it" after she married Husband, as she believed Husband "was a better father than [Father]." Mother testified that her only contact with Father since she was three months pregnant had been during a meeting with CYFD after Child was removed from her custody. Father never supported Mother or Child following Child's birth, and Father did not visit Mother to meet Child after Child's birth. The first time Father met Child was when Ms. Martinez brought Child to his home. Other than that one visit, for the first fifteen months of Child's life, Father had no contact with Child.

         II. CYFD Permanency Planning Worker's Testimony

         {7} Ms. Martinez testified that she emailed Father on April 28, 2016, regarding Child, and Father called her that day. During that phone call, Father said that he had had sex with Mother one time. Father also told Ms. Martinez that he had a vasectomy two years earlier and so could not be Child's father. The next day, Father called her and stated that after investigating and looking at a timeline, Father did not have a vasectomy two years ago and that Child looked just like his son who was born three months before Child. Ms. Martinez also testified that she had seen Facebook messages in which Mother reported to Father that Child was Father's baby. According to Ms. Martinez, Mother notified Father that Child was his and that after Mother married, Mother told Father that "she didn't. . . need anything from him because her husband was there to step up and be a father to [Child]."

         {8} Ms. Martinez testified that she and her supervisor brought Child to Father's home so Father could meet Child. During a family-centered meeting facilitated by CYFD, Father stated that the only reason "he stepped up was because [Child] was in foster care and he didn't want [Child] in foster care." Ms. Martinez testified that Father had not established a relationship or a bond with Child since he had only met Child once before the hearing. Ms. Martinez was also concerned because Father had never provided any financial support to Child.

         {9} Ms. Martinez testified that the week before Father's adjudication hearing, Father called her and left a voicemail indicating that he wanted to relinquish his parental rights to Child. Father explained his decision by stating that he did not want to do any parenting classes required by CYFD because he did not feel that he had done anything wrong with respect to Child.

         III. Father's Testimony

         A. Father's Testimony Regarding When He Had Notice of Mother's Pregnancy With Child

         {10} Father testified that he first found out about Child and that he was Child's father when Ms. Martinez emailed him in April 2016, although he did not remember the date. Father, however, also admitted he had notice that Mother was pregnant with his child much earlier than April 2016, when Mother was communicating with both him and his girlfriend on Facebook about Mother's pregnancy with Child, but that Mother told him Child was not his. Father continued, "She kept. .. trying to argue with us on Facebook, that she just wanted me to take care of my responsibilities, and I said that you told me that it wasn't my responsibility because it's not my kid." According to Father, because Mother was trying to argue with him on Facebook, he blocked her, and therefore did not find out about Child until CYFD took Child into its custody. Mother never asked him for anything related to Child, which made him believe that Child was not his, because "if it was my daughter, [Mother] would have pursued [me] as being the dad, not telling me and arguing with my [girlfriend] that it was someone else's, we don't need your money no way."

         {11} Father insisted he had "no idea" Mother was pregnant with his child until CYFD contacted him because he believed someone else could have been the father and because Mother became pregnant "so soon." On cross-examination by Mother's attorney, when asked whether Mother did give him notice that she was pregnant with his child, Father answered, despite his previous denial, "And when I asked her for a DNA test, she did never get back a hold of me, and she kept writing other letters-that I don't need your help, I don't need your money, I don't need this, I don't need that-and we just blocked her from all the pages, and this is the first time I'm hearing about it now."

         B. Father's Other Testimony

         {12} Father testified that he has eight children including Child, ranging in age from 25 years to Child's age, which was 16 months at the time of the hearing. Father did not have any previous record with CYFD. When Father's counsel asked him if he wanted to provide for his daughter financially, emotionally, and in every way possible, Father responded yes.

         {13} Father admitted that he saw a photograph of his daughter for the first time after he found out where she was {implying foster care), looked on Facebook, found a photograph of Child and said, "Wow, kinda looks like [my son]." Father continued, "[My girlfriend] is the one that said, hey, that's your baby, if it's yours, we're gonna have the DNA test, if it's your kid, we don't want her in foster care. Because [Ms. Martinez] told me the first couple-the family she stayed with, didn't want her for long term. That's what made me push for my kid. J never said, oh, the only reason I want her is because she's in foster care. I wanted her because she's my daughter and I'm a stay at home dad with her brother that's three months older than her." Father also testified that he will "always provide for my kids whether their mothers need me or not."

         {14} Father testified that he felt he was being "bullied" and treated unfairly by CYFD because although he was not in Child's life, that was not his fault, and he could not do everything CYFD was asking him to do with the short notice that C YFD was providing him for some tasks.

         IV. District ...


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