July 15, 2019- CYFD v. Stephanie H., No. A-1-CA-37533 EBD

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO ex rel.
3 CHILDREN, YOUTH & FAMILIES
4 	DEPARTMENT,
5 	Petitioner-Appellee,
6 	v. 	No. A-1-CA-37533
7 	STEPHANIE H.,
8 	Respondent-Appellant,
9 	and
10 MICHAEL L.,
11 	Respondent,
12 	IN THE MATTER OF CARROL ANN L.,
13 	a/k/a CORRALLEE L.,
14 	Child.
15 	APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
16 Daylene A. Marsh, District Judge
17 Children, Youth & Families Department
18 	Rebecca J. Liggett, Chief Children's Court Attorney
19 	Santa Fe, NM
20 	Kelly P. O 'Nei ll , Children's Court Attorney
21 	Albuquerque, NM
22 	for Appellee
Court of Appeals of New Mexico
Filed 7/15/2019 11:22 AM

1 Law Offices of Nancy L. Simmons, P.C.
2 Nancy L. Simmons
3 Albuquerque, NM
4 	for Appellant
5 Richard J. Austin, P.C.
6 Richard J. Austin
7 Farmington, NM
8 Guardian Ad Litem
9
10 VANZI, Judge.
DECISION
11 	{1} 	Stephanie H. (Mother) appeals the termination of her parental rights to Carrol
12 	Ann L. (Child). Mother argues that the evidence was not clear and convincing that
13 	the Children, Youth, and Families Department (the Department) made reasonable
14 efforts to assist her or that she would not be able to ameliorate the causes of Child's
15 	neglect within the foreseeable future. Unpersuaded that the district court erred in
16 	finding to the contrary, we affirm.
17 	{2} 	We set out only the pertinent facts and law in connection with the issues
18 	analyzed because the parties are familiar with the facts and procedural posture of
19 this case and because this is a non-precedential expedited bench decision. See In re
20 	Court of Appeals Caseload, Misc. Order No. 01-57, ,-r 4(C) (Sept. 19, 2016).
21 	BACKGROUND
22 	{3} 	The following facts are undisputed. The Department took Child into custody
23 	on October 13, 2016. In the affidavit submitted by the Department in support of its
2

1 motion for custody, the Department alleged that Mother and Child were living in the
2 home of Mother's parents. Oory L., Child's older sister, had reported that Mother
3 was using methamphetamines and that Mother "beat" her, and called her a "snitch
4 bitch." After an altercation, there were red marks on Oory and her shirt was tom.
5 Oory also reported that Mother encouraged Oory to smoke methamphetamine with
6 her. Oory subsequently tested positive for methamphetamine. On the other hand,
7 Child denied Mother's drug use and blamed her older sister, Oory, for the conflict
8 with Mother. There were reports at Child's school that Child was using marijuana
9 and drinking.
10 {4} 	At a hearing in February 2017, Mother did not contest the allegation that she
11 	had neglected Child under NMSA 1978, Section 32A-4-2(F)(2) (2016, amended
12 	2018), 1 which provides that a child is neglected if the child is "without proper
13 	parental care and control or subsistence, education, medical or other care or control
14 	necessary for the child's well-being because of the faults or habits of the child's
15 	parent ... or the failure or refusal of the parent, ... when able to do so, to provide
16 them[.]" In its judgment memorializing the adjudication, the district court noted that
17 "[t]he factual basis for the plea is as follows: [Mother]'s substance abuse issues led
18 	to her being unable to provide proper care and control for [Child]."
1 Now codified at NMSA 1978, Section 32A-4-2(G)(2) (2018).
3

1 {5} 	The district court also adopted a treatment plan that required Mother to
2 provide a safe and stable environment for Child, including: provide housing and
3 provide the address to the Department, obtain domestic violence and mental health
4 assessments, attend bio-parenting orientation and parenting classes and demonstrate
5 skills learned, maintain weekly contact with the Department, 	maintain weekly
6 contact with Child, undergo a substance abuse evaluation, and undergo drug testing
7 through hair follicle testing and urinalyses.
8 	{6} 	The Department moved to terminate parental rights (TPR) in November 2017,
9 approximately thirteen months after the Department took custody of Child, but only
10 eleven months after the dispositional order adopted Mother' s treatment plan. The
11 	TPR trial began approximately four and a half months later in April 2018. At the
12 beginning of the TPR trial, the district court took judicial notice of an August 31 ,
13 	2016 judgment against Mother for use or possession of drug paraphernalia. Mother
14 did not object to judicial notice of the judgment.
15 	{7} 	At the TPR trial, Alycia Wright testified first. Wright has worked at Assurance
16 Home, a therapeutic group home as well as an emergency shelter, since 2007. She is
17 currently an assistant director and clinical therapist for Assurance Home and is a
18 	licensed social worker. The district court accepted her as an expert in mental health
19 diagnosis and treatment. Wright testified that Child had been at Assurance Home
20 since March 8, 2017, in its shelter program. 	While Child was not required to
4

1 participate in therapy as part of that program, she had elected to participate in therapy
2 with Wright throughout her stay in the program. Wright testified that Child cares for
3 Mother and "there is definitely love in that relationship." However, based upon the
4 words Child has used to describe her relationship with Mother, Wright stated that
5 Child knows that Mother' s substance abuse has put a strain upon their relationship
6 and that it would not be in Child's best interests to live with Mother at this time.
7 Wright had supervised a single phone call between Child and Mother and reported
8 that it seemed to go very well. Nonetheless, Wright had determined that all phone
9 calls between Child and Mother should be supervised until further notice and she
10 	believed that this decision had been communicated to Mother. Wright testified that
11 	it was very difficult to tell if there was a bond between Child and Mother. However,
12 	Wright also stated that Child loves and cares for Mother and that this could constitute
13 	a bond between the two.
14 	{8} 	Carla Goddard is a probation officer for the district court in Farmington, New
15 	Mexico and Aztec, New Mexico. She is trained in substance abuse testing. Goddard
16 also is a manager of the court' s alternative sentencing program, and the district court
17 accepted her as a records custodian for the alternative sentencing program. Goddard
18 	testified that Mother had been ordered by the court to participate in a urinalysis on
19 three occasions. On October 5, 2016, Mother tested positive for amphetamines and
20 methamphetamine. On December 19 , 2016, Mother showed up for the drug test and
5

1 told the staff she would be clean, but was unable to provide a sample after three
2 attempts, 	even 	though 	she 	was 	provided 	extra time 	to 	do 	so. 	Following 	the
3 unsuccessful third attempt, an officer arrested Mother for outstanding warrants. On
4 February 6, 2017, Mother tested positive for amphetamines and methamphetamine.
5 {9} 	Deanna Moore works for Reliance Medical Group, which also tested Mother
6 for drug use. She was admitted by the court as a custodian of Reliance Medical
7 Group's records. Since October 1, 2016, Mother had been tested twice by Reliance.
8 On December 5, 2016, Reliance obtained a urine sample for testing from Mother;
9 the results were negative. On February 6, 2017, Reliance tested Mother's drug use
10 	with 	a 	hair 	follicle 	test, 	which 	was 	positive 	for 	amphetamines 	and
11 	methamphetamine. Moore explained that it takes about a week for drugs to enter a
12 	hair follicle and that, if a person underwent testing on the same day as using drugs,
13 	the urine test result would be positive while the hair follicle test result would be
14 negative. She explained that, when both the urinalysis and the hair follicle test are
15 	positive on the same day, the results suggest that the person had used that drug on
16 more than one occasion.
17 	{10} 	Gwendolin Begaye is a Department permanency planning worker (PPW) who
18 	was assigned to Mother's case in August 2017. Begaye stated that the Department
19 had been unable to place Child safely with either parent since October 2016. When
20 she was assigned to the case, Begaye contacted Mother at least every other week by
6

1 text, and each time Mother promptly responded to her until September 2017, when,
2 in her last text to the Department, Mother stated she wanted nothing further to do
3 with the Department and her treatment plan. 	Despite Mother' s statement, the
4 Department had a home visit with Mother in January 2018, during which they
5 reviewed her treatment plan. Begaye described a "calendar," signed by Mother,
6 which directed Mother to call the Department about urinalyses and parenting classes.
7 Begaye discussed the calendars for urinalysis testing for Mother, which track the
8 dates that Mother was expected to call in to the Department each day to find out
9 whether she had a urinalysis scheduled. The calendars indicate that Mother never
10 	called 	in. 	In 	January 	2018, 	the 	Department 	stopped 	using 	this 	procedure 	for
11 	urinalyses and switched to requiring urinalyses as needed.
12 {11} 	Begaye also discussed compliance letters to Mother setting out Mother' s
13 	treatment plan dated January, April, and June 2017 and March 2018. Although the
14 previous letters had been returned as undeliverable, the March letter was not. Since
15 	Begaye did not have a valid address for Mother, she asked Mother to meet her at the
16 Department office, but Mother refused. 	In January 2018 , after the Department
17 contacted Mother, Mother provided the Department with her current and accurate
18 	address. 	Begaye testified that, prior to 	January 2018, 	Mother had provided a
19 nonexistent address to the Department.
7

1 {12} 	The Department referred 	Mother for 	mental 	health and 	substance abuse
2 assessments, which Mother completed in October 2016. During a mental health
3 assessment, Mother was asked to perform a subsequent updated assessment, but
4 Mother never performed the updated assessment. Begaye stated that Mother had
5 never participated in a single substance abuse class nor a single parenting class
6 during the duration of this case. Begaye also discussed the family time guidelines
7 provided by the Department to Mother, including guidelines dated October 2016,
8 November 2016, and February 2018, all of which were signed by Mother. The
9 Department 	utilized 	th~se 	documents 	to 	inform 	parents, 	like 	Mother, 	of the
10 Department 's guidelines surrounding visitation of their children. The most recent
11 	approved visitation between Mother and Child was in March 2018. The only other
12 approved contact was a single phone call earlier. However, Begaye stated there were
13 	a number of unapproved text message contacts between Mother and Child. Begaye
14 	stated that these communications were concerning because Mother might try to
15 	manipulate Child. Begaye stated that the Department's concerns with Mother stem
16 	from her substance abuse and Mother's physical abuse of Oory. She testified that,
17 	over the course of the case, Mother had done nothing to address either of those
18 	issues.
19 	{13} 	Begaye 	testified 	that 	Mother 	was 	aware 	that 	her 	children 	were 	in 	the
20 Department' s custody, but Mother only wanted unsupervised visits with Child, and
8

1 she wanted Child to return to live with her. In order for the Department to approve
2 unsupervised visits with Child, Mother had to comply with her treatment plan. The
3 Department's biggest concern with Mother was her substance abuse issues. The
4 Department explained this to Mother, but Mother did not participate in the services
5 the Department recommended to address substance abuse. Then, in September 2017,
6 Mother told the Department she did not want to cooperate with the Department, and
7 since then, Mother has made no independent efforts with regard to her treatment
8 plan.
9 {14}
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After the TPR trial, the district court found as follows:
9. As to [Mother]:
a. [Mother] did a mental health or substance abuse assessment
October 2016, however, there were problems with the assessment,
therefore, the [D]epartment asked for an updated assessment which
[Mother] did not do.
b. [Mother] has continued to test positive for drugs throughout
this case.
c. [Mother] did not do substance abuse counseling or a parenting
class.
d. Visitation between [C]hild and [Mother] was appropriate but
superficial.
e. [C]hild cares about [M]other.
f. There is a bond between [C]hild and [Mother].
g. [Mother] sent a text to the [D]epartment stating that she would
not work with them.
9

1
2
3
4
h. There was a period of time during this case that [Mother] did
not contact the [D]epartment and the [D]epartment did not have a
correct address for [Mother].
10. The motion to terminate parental rights should be granted.
5 Mother specifically challenges finding of fact 9(D) and 10. She does not challenge
6 the other findings of fact entered by the district court. See Rule 12-318(A)(4) NMRA
7 ("A contention that a ... finding of fact is not supported by substantial evidence
8 shall be deemed waived unless the argument identifies with particularity the fact or
9 facts that are not supported by substantial evidence[.]").
10 DISCUSSION
11 	{tS} 	Pursuant to NMSA 1978, Section 32A-4-28(B)(2) (2005), "the court shall
12 terminate parental rights" when "the child has been a neglected or abused child" and
13 	the district court finds that "t he conditions and causes of the neglect and abuse are
14 unlikely to 	change in the 	foreseeable 	future 	despite reasonable efforts 	by the
15 	[D]epartment ... to assist the parent in adjusting the conditions that render the parent
16 unable to properly care for the child." The Department bears the burden "to prove
17 	[these] ... grounds for termination by clear and convincing evidence." State ex rel.
18 	Children, Youth & Families D ep't v. Tammy S., 1999-NMCA-009, i113, 126 N.M.
19 664, 974 P .2d 158. "Clear and convincing evidence is ... evidence that 'instantly
20 tilts the scales in the affirmative when weighed against the evidence in opposition
21 	and the fact finder's mind is left with an abiding conviction that the evidence is
22 	true.'" State ex rel. Children, Youth & Families Dep't v. Lance K., 2009-NMCA-
10

1 054, 	~ 16, 	146 	N.M. 	286, 	209 	P.3d 	778 	(alteration 	omitted) 	(quoting 	In 	re
2 	Termination of Parental Rights of EventyrJ., 1995-NMCA-087, ~ 2, 120 N.M. 463,
3 902 P.2d 1066). On appeal, this Court "will uphold the district court's judgment if,
4 viewing the evidence in the light most favorable to the judgment, [the district court]
5 could properly determine that the clear and convincing standard was met." State ex
6 rel. Children, Youth & Families Dep't v. Hector C., 2008-NMCA-079, ~ 11, 144
7 N.M. 222, 185 P.3d 1072 (internal quotation marks and citation omitted). Thus, the
8 question before us is "whether the [district] court's conclusion, when viewed in the
9 light most favorable to the decision below, was supported by substantial evidence,
10 	not whether the [district] court could have reached a different conclusion." State ex
11 	rel. Children, Youth & Families Dep 't v. Patricia H, 2002-NMCA-061, ~ 31, 132
12 N.M. 299, 47 P.3d 859. This Court does not "assess the credibility of the witnesses,
13 	deferring instead to the conclusions of the [district court]." State ex rel. Children,
14 	Youth & Families Dep't v. Vanessa C., 2000-NMCA-025, ~ 24, 128 N.M. 701 , 997
15 	P.2d 833.
16 	{16} 	Mother argues on appeal that the evidence was not clear and convincing that
17 the Department made reasonable efforts to assist her or that she would not be able
18 	to ameliorate the causes of Child's neglect within the foreseeable future. We address
19 these arguments in turn.
11

1 Reasonable Efforts
2 {17} 	Mother contends that the Department failed to make reasonable efforts to
3 assist her in addressing the causes of Child's neglect, to wit: Mother's substance
4 abuse. She maintains that the Department did not even begin implementing the
5 treatment plan until December 2016 and "then gave up on Mother in November
6 2017, only eleven months later."
7 	{18} 	This argument fails on both the facts and the law. Although CYFD moved for
8 termination only eleven months after adoption of the treatment plan, the TPR hearing
9 was not held until April 2018, over four months later. At the hearing, the district
IO 	court heard evidence that the Department provided some services to Mother even
11 	after it filed the motion to terminate. In sum, even though CYFD filed for termination
12 eleven months after adoption of the treatment plan, CYFD continued to reach out to
13 	Mother for fifteen months after adoption of the plan.
14 {19} 	In addition, the motion for TPR and TPR trial occurred approximately thirteen
15 	months and 	seventeen months after CYFD took custody of Child. 	As Mother
16 recognizes, the Adoption and Safe Families Act of 1997 (ASFA) provides guidance
17 	on the reasonableness of CYFD's efforts. Pub. 	L. No. 	105-89, 	111 	Stat. 2115
18 	(1997) (codified 	as 	amended 	in 	scattered sections 	of 42 	U.S.C.). 	While "[t]he
19 fifteen-month period described in ASFA for 'time-limited reunification services'
20 provides us some guidance in how we assess the duration of reasonable efforts under
12

1 state law[,]" we also have recognized that the purpose of ASF A is to "encourage[]
2 states to move more quickly to terminate parental rights and give[] states a financial
3 incentive to increase the number of adoptions." Patricia H, 2002-NMCA-061 , ,r 26.
4 Hence, ASFA defines a limit to the duration of CYFD's services, not a minimum
5 period. The Abuse and Neglect Act also recognizes a limit to the duration ofCYFD's
6 efforts. State ex rel. Children, Youth & Families Dep 't v. Maria C., 2004-NMCA-
7 083, ,r 21, 136 N.M. 53, 94 P.3d 796 (stating that, like ASFA, "[s]tate law allows a
8 reunification plan to be maintained for a maximum of fifteen months as well"); see,
9 e.g., NMSA 1978 § 32A-4-29(A) (2009) (stating that "[a] motion to terminate
10 parental rights may be filed at any stage of the abuse or neglect proceeding"); NMSA
11 	1978, 	§ 	32A-4-25.l(C) 	(2016) 	("If the 	court 	adopts 	a 	permanency 	plan 	of
12 reunification, the court shall adopt a plan for transitioning the child home within a
13 	reasonable period depending on the facts and circumstances of the case, but not to
14 exceed six months[.]"); § 32A-4-29(G) (mandating a motion to terminate parental
15 	rights when a child has been in foster care "not less than" fifteen months). Moreover,
16 the reasonableness of CYFD's efforts depends on the "totality of the circumstances,"
17 which may include "the level of cooperation demonstrated by the parent and the
18 	recalcitrance of the problems that render the parent unable to provide adequate
19 parenting." State ex rel. Children, Youth & Families Dep 't v. Kean H, 2018-NMSC-
20 033, ,r 41,421 P.3d 814 (internal quotation marks and citation omitted).
13

1 {20} 	The district court could reasonably determine that CYFD's efforts were
2 reasonable in light of Mother's failure to engage with them. In Kean H, our Supreme
3 Court 	addressed 	whether 	the 	Department 's 	efforts 	were 	reasonable 	under
4 circumstances similar to those here. Id. ,r 36. In that case, "the Department prepared
5 a treatment plan for [the f]ather, went over the treatment plan with [him], provided
6 [the f]ather with the Department's contact information, and scheduled appointments
7 for [the f]ather's psychosocial assessment[,]" but he "did not show up for the
8 appointments and did not participate in the psychosocial assessment." Id. ,r 43. The
9 Court noted that the Department had provided its contact information to the father,
10 but the father never contacted his PPW, either when he was in or out of custody. Id.
11 	,r 44. Moreover, the father had failed to keep in touch with his attorney, despite the
12 court's order that he do so. Id. ,r 49. The Supreme Court observed that the father
13 	"ha[ d] 	continuously 	failed 	to 	show 	any 	desire 	or willingness 	to 	address 	the
14 conditions and causes that brought [the c]hild into custody. [The f]ather never
15 	contacted the Department, he missed or canceled scheduled appointments with the
16 Department, and he only visited [the c]hild once or twice at the beginning of the
17 	case." Id. 48.
18 	{21} 	Stating that "[b ]oth the Department and [the parents] are responsible for
19 	making efforts toward reunification of the family[,]" the Court concluded that "[t]he
20 record indicates that the Department made reasonable efforts to assist [the f]ather,
14

1 but [he] did not take advantage of those efforts." Id. ,i,i 48, 50; see NMSA 1978,
2 	§ 32A-4-22(C) (2016) ("[T]he court shall ... order the [D]epartment to implement
3 and the child's parent ... to cooperate with any case plan approved by the court.").
4 Because its "job is not to determine whether the Department did everything possible"
5 but to "determine whether the Department complied with the minimum required
6 under law," the Court further concluded that "the Department' s efforts, although
7 	imperfect, were reasonable" in light of the father's limited cooperation with the
8 Department and compliance with the treatment plan. Keon H, 2018-NMSC-033,
9 ,i 43 (alterations, internal quotation marks, and citation omitted).
10 	{22} 	Here, there was evidence that the Department provided Mother with the
11 	treatment plan and informed her that her addiction was a barrier to reunification with
12 	Child and referred her to mental health and substance abuse evaluations and services.
13 	Moreover, 	the 	district 	court 	found 	that 	Mother 	tested 	positive 	for 	drug 	use
14 "throughout this case," "did not [participate in] substance abuse counseling," did not
15 	maintain contact with the Department, and told the Department she did not want to
16 	work with the Department on her treatment plan. Mother does not contest these
17 findings of fact. Given the length of time Child has been in custody, the duration of
18 	the Department's services to Mother, and Mother 's lack of engagement with those
19 services and progress toward sobriety, we conclude that the district court could
15

1 reasonably find that the duration of the Department's efforts was reasonable under
2 the totality of the circumstances.
3 Foreseeable Future
4 	{23} 	Mother also argues that there was "no evidence linking Mother's alleged
5 addiction specifically with the neglect of' Child and that, "in light of [Mother 's ]
6 serious addiction to methamphetamine[], the lack of evidence that her addiction had
7 affected her parenting of [Child] specifically, and the parental bond that existed,"
8 the Department's efforts were unreasonable because the Department should have
9 "allowed a longer time for Mother to face her addiction." We reject both arguments.
10 	{24} 	First, Mother pled no contest to the adjudication of neglect, the factual basis
11 	for which was "[Mother]'s substance abuse issues [which] led to her being unable
12 to provide proper care and control for [Child.]" We therefore reject Mother's
13 	argument on appeal that there was no evidence linking her methamphetamine use to
14 Child's neglect.
15 	{25} 	Second, viewing the evidence in the light most favorable to the judgment, we
16 conclude that 	the 	district 	court 	"could 	properly determine 	that 	the 	clear and
17 	convincing standard was met" as to this element. Hector C., 2008-NMCA-079, ,r 11
18 	(internal quotation marks and citation omitted). "We have interpreted the term
19 	'foreseeable future' to refer to corrective change within a reasonably definite time
20 or within the near future." Patricia H., 2002-NMCA-061, ,r 34 (internal quotation
16

1 marks and citation omitted). Moreover, "in balancing the interests of the parents and
2 children, the court is not required to place the children indefinitely in a legal holding
3 pattern." Id. (internal quotation marks and citation omitted). As discussed above, as
4 	of the date of the TPR trial, Child had been in the Department's custody for
5 seventeen month s, two months beyond the fifteen-month period set forth in ASF A.
6 Moreover, the evidence supports the district court's findings that Mother had not
7 maintained sobriety and had not sought services to assist her in doing so. Mother
8 acknowledges 	that 	her 	addiction 	to 	methamphetamines 	is 	"serious" 	and
9 "recalcitran[t] ." There having been little effort by Mother to address her addiction in
10 	the period between the no-contest plea to neglect and the TPR trial, the district court
11 	could reasonably conclude that Mother was unlikely to be able to ameliorate that
12 cause of Child 's neglect in the foreseeable future.
13 	CONCLUSION
14 	{26} 	For the foregoing reasons, we affirm.
15 	{27} 	IT IS SO ORDERED.
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1 WE CONCUR:
2 	}.~
3 J. MILES HANISEE, Judge
41t-.l~-"4-""""'"-~"""-4,,...._-+-'-.L..-L-...L....4.<c......,,,a..~c..-O(_,
5 	LINER. MEDINA, Judge
18