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In re Anhayla H.

Supreme Court of New Mexico

June 18, 2018

IN THE MATTER OF ANHAYLA H., a child,
v.
KEON H., Respondent-Respondent. STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Petitioner,

          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 ...


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