ORIGINAL PROCEEDING ON CERTIORARI William E. Parnall,
District Judge
New
Mexico Children, Youth & Families Department Kelly P.
O'Neill, Children's Court Attorney Albuquerque, NM
for Petitioner
Law
Offices of Jane B. Yohalem Jane B. Yohalem Santa Fe, NM for
Respondent
OPINION
PETRA
JIMENEZ MAES, Justice
{
¶1} The New Mexico Children, Youth and Families
Department (the Department) appeals from a judgment of the
Court of Appeals reversing the district court's
termination of Father's parental rights with regard to
Child. The Court of Appeals concluded that the Department
failed to make reasonable efforts to assist Father in
remedying the conditions and causes of neglect and abuse that
rendered Father unable to properly care for Child under NMSA
1978, Section 32A-4-28(B)(2) (2005). See State ex rel.
Children, Youth & Families Dep't v. Keon H.,
2017-NMCA-004, ¶ 1, 387 P.3d 313. We granted certiorari
to review whether the district court's determination that
the Department made reasonable efforts to assist Father was
supported by substantial evidence. We reverse the Court of
Appeals opinion and affirm the district court order
terminating Father's parental rights.
I.
BACKGROUND
{¶2}
On February 20, 2013, Mother and Father took two-month-old
Child to the hospital. Mother and Father reported that two
days prior Father had been standing and rocking Child when he
accidentally dropped her on the carpet. Child was in critical
condition, having sustained multiple fractures, including
twenty-three rib fractures and four skull fractures in
various stages of healing, facial bruising, liver
lacerations, brain bleeding, and a possible detached retina.
Doctors determined that the "volume, distribution, and
severity of [Child's] injuries [were] not consistent with
a short fall in the home" and instead evidenced multiple
incidents of blunt force trauma to Child's head and body.
Child is severely physically and mentally impaired as a
result of the injuries.
{¶3}
On February 25, 2013, the Department filed a petition with
the district court alleging Child to be neglected and/or
abused under NMSA 1978, Section 32A-4-2 (2009, amended 2017).
Mother and Father entered no contest pleas to the neglect and
abuse allegations on April 5, 2013. The adjudicatory and
dispositional hearing was held on April 22, 2013. An initial
judicial review hearing and three permanency hearings were
held between May 20, 2013 and August 22, 2014. Father's
termination of parental rights hearing was conducted over two
days, approximately six months apart, August 27, 2014 and
February 6, 2015. Pertinent details of the various hearings
are outlined below.
A.
Initial Custody
{¶4}
The Department took Child into custody on February 21, 2013
on allegations of neglect and/or abuse filed February 25,
2013. On February 26, 2013, the district court granted the
Department continued custody of Child until further order. On
March 7, 2013, a custody hearing was held; both Mother and
Father were present. At the custody hearing, the court
ordered Mother and Father to participate in psychosocial,
psychological, domestic violence, substance abuse, and
parenting assessments, as well as drug screens. Mother was
also instructed to participate in an independent living
skills assessment. The court further instructed Mother and
Father to keep their attorneys and the Department's
permanency planning worker (PPW) apprised of their current
addresses and phone numbers at all times and promptly notify
them of any changes. The Department assigned Richard
Gaczewski as the PPW for Child and Diane Drobinski as the PPW
for Mother and Father.
B.
Mediation and Plea
{¶5}
On April 5, 2013, Mother and Father participated in a
mediation conference and pled no contest to Child being
neglected and/or abused under Section 32A-4-2 (2009, amended
2017). The factual basis for Mother's and Father's
plea agreements was that Child was seriously injured while in
the care of Mother, Father, and others, and "no action
was taken by [Mother or Father] to protect [Child] from
injury or seek medical care." Mother's stipulated
judgment and disposition also noted that "domestic
violence in the home between [Father] and [Mother] in the
presence of [Child] [had] impaired [Mother's] ability to
provide for the care, safety and supervision of
[Child]."
C.
Adjudication and Disposition
{¶6}
At the adjudicatory and dispositional hearing on April 22,
2013, the district court adopted the Department's
proffered findings of fact and incorporated into its order
the Department's family treatment[1] plan and predispositional
study dated April 16, 2013. Although the court had ordered
several assessments, the treatment plans recommended by the
Department for Mother and Father called for initial
psychosocial assessments on which other Department
recommendations would be based. By the hearing date, Mother
had completed her psychosocial assessment and the Department
had developed personalized treatment recommendations for her.
Father had not yet participated in his psychosocial
assessment and thus only had the one item in his treatment
plan.[2]
{¶7}
The record indicates that at the time of the hearing, Father
was homeless and did not have an address. Father was not
returning phone calls from his PPW, Ms. Drobinski, nor did he
show for a scheduled office visit. Father's only visits
with Child occurred prior to the adjudicatory hearing. The
Department described one visit as "problematic"
because Father had "angrily grabbed [Mother's] cell
phone from her hands" when they were having an argument.
The district court ordered Mother and Father to "undergo
psychological evaluations and treatment to be arranged by the
[Department] or consistent with [the c]ourt's
order." The court also ordered Mother and Father to
maintain regular contact with their attorneys and the PPW
regarding the court-ordered treatment plans, court dates, and
the case in general.
D.
Initial Judicial Review Hearing
{¶8}
The initial judicial review hearing was held on May 20, 2013.
Mother was present by phone; Father was not present. The
district court adopted the Department's facts and
proposed family treatment plan contained in the judicial
review and/or permanency hearing report dated May 20, 2013.
The Department stated in the report that it offered Mother
and Father office visits with their PPW to conduct
psychosocial assessments, create treatment plans, and
coordinate supervised visits with Child. The court found that
Mother was participating in her treatment plan and regularly
visiting Child. Father, however, had made no efforts to
comply with his treatment plan, had made no efforts to
maintain contact with Child given his circumstances and his
abilities, and had not been in contact with the Department
since the plea hearing on April 5, 2013. Because Father was
not present at the hearing, the court asked Father's
attorney if Father had been in contact with her. Father's
attorney stated that she called Father the day before and
asked if Father had been in contact with the Department. She
said that Father told her that he had not been in contact
with the Department, that he had not started to engage in his
treatment plan, and that the only thing he was doing was
looking for a job.
E.
Initial Permanency Hearing
{¶9}
The initial permanency hearing was held on November 25, 2013.
Mother was present; Father was also present, having been
transported from the Metropolitan Detention Center (MDC). The
district court adopted the Department's facts and
proposed family treatment plan contained in the judicial
review and/or permanency hearing report dated November 25,
2013. The Department informed the court that Father was in
custody due to a domestic violence incident with Mother. The
Department also informed the court that Mother had been
making good efforts at working her treatment plan but had
recently stopped participating and that Father had made no
efforts to participate in his treatment plan. Father's
attorney told the court that Father intended to take his
domestic violence charge to trial, so she did not expect that
case to be resolved prior to the neglect and abuse
proceedings.
{¶10}
During the hearing, Father's attorney volunteered that
Father had not been good about keeping in touch with her. In
response, the court explained to Mother and Father the
importance of maintaining contact with the Department. The
court said, "When there's a problem, you need to go
to the Department and let the Department know . . . [if you
are] homeless . . . don't have a phone . . . can't
get to the [urine analyses], . . . whatever. The
Department's job is to make reasonable efforts to fix
those things; so I'll ask the Department to do that, and
I'll ask you to communicate with the Department so that
[it will] do that." The court reminded Father that there
were programs Father could complete while in custody and
encouraged him to "keep that in mind and do what you
can." Father responded, "Yes, sir." The court
changed Child's permanency planning goal from
reunification to adoption, but ordered the Department to make
reasonable efforts to implement the family treatment plan and
ordered Mother and Father to make reasonable efforts to
comply with the plan.
F. Second Permanency
Hearing
{¶11}
The second permanency hearing was held on February 24, 2014.
Mother was present; Father was also present, having been
transported from MDC. The district court adopted the
Department's facts and proposed family treatment plan
contained in the judicial review and/or permanency hearing
report dated February 24, 2014. In the report, Ms. Drobinski
informed the court that Father had twice been scheduled for
his psychosocial assessment but canceled both appointments,
and that Mother's visits with Child had been canceled
after Mother's domestic violence incident with Father.
Further, Ms. Drobinski indicated that Father had not been in
touch with the Department and had not participated in his
treatment plan, but did note that Father had once visited
with Child. Ms. Drobinski also informed the court that she
visited Father at MDC in November 2013, that Father was
transferred to Texas, and that she asked Father's
attorney how to write to Father.
{¶12}
The guardian ad litem, Karen Cantrell, was present and
testified that Child would need highly skilled and
specialized care for her entire life. Ms. Drobinski was also
present and provided information about Child's therapy
needs and the type of training a caregiver would need in
order to provide Child with the twenty-four-hour-a-day care
that Child requires. Ms. Drobinski testified that, at a
minimum, Child's caregiver would need to participate in
training with the Association for Retarded Citizens of
Albuquerque or another agency of that type, and participate
in Child's occupational therapy, physical therapy, and
hippotherapy.
G.
Motion to Terminate Parental Rights
{¶13}
On March 26, 2014, the Department filed a motion to terminate
the parental rights of both Mother and Father, stating that
Mother and Father "have been unable or unwilling to make
the necessary changes to parent [Child] in a minimally safe
and adequate manner." The Department alleged that Mother
had stopped participating in her treatment plan items and
that Father was in substantial non-compliance with his
treatment plan and had abandoned Child. The Department
asserted that, despite reasonable efforts by the Department
to assist Mother and Father, it was "unlikely the
underlying causes of the neglect [would] change in the
foreseeable future." The Department also asserted that
additional efforts would be futile. Father filed a response
to the motion, denying the allegations. Mother ultimately
voluntarily relinquished her parental rights.
H.
Third Permanency Hearing
{¶14}
On August 22, 2014, the district court held a third
permanency hearing. Mother was present; Father was also
present, having been transported from MDC. The district court
adopted the Department's facts and proposed family
treatment plan contained in the judicial review and/or
permanency hearing report dated August 22, 2014. The court
found that the Department had made reasonable efforts to
implement the treatment plans of Mother and Father, that
Mother had made some efforts to comply with her treatment
plan but that her participation had been inconsistent, and
that Father had made no effort to comply with his treatment
plan. Again, the court ordered Mother and Father to
participate in their treatment plans.
I.
Termination of Parental Rights Hearing-First
Day
{¶15}
The termination of parental rights hearing began on August
27, 2014. On the day of the hearing, Mother voluntarily
relinquished her parental rights to Child. Thereafter, the
termination proceedings pertained solely to Father's
parental rights. The court heard testimony from three
witnesses: Luanne Stordahl, a family service coordinator and
developmental specialist at Inspirations Early Intervention,
Inc.; Richard Gaczewski, a senior PPW with the Department;
and Father.
1.
Luanne Stordahl's Testimony
{¶16}
Ms. Stordahl testified that Child did not have any medical
issues at birth; but when Ms. Stordahl evaluated Child in
March 2013 when Child was approximately three months old,
Child "was not using the right side of her body"
and had "difficulty maintaining eye contact or
[fixating] on toys or objects." Ms. Stordahl
specifically described Child's visual diagnoses, which
included multiple brain and eye issues. Child was assessed as
having "delays in her motor skills, feeding skills,
vision skills . . . and communication skills."
Subsequent reassessments reconfirmed those delays. Ms.
Stordahl testifed that as a result, Child was referred to
multiple therapies, one of those being hippotherapy. When
asked who could participate in hippotherapy with Child, Ms.
Stordahl testified that both parents would have been able to
participate. She stated that Mother had attended some
sessions, but to her knowledge Father had never attended any
sessions. Ms. Stordahl testified that she had not had any
contact with Father.
2.Richard Gaczewski's ...