A-1-CA-38590•April 23, 2020- CYFD v. Derek L., No. A-1-CA-38590
Gesamter Gesetzestext
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO ex rel. 2 CHILDREN, YOUTH & FAMILIES 3 DEPARTMENT, 4 Petitioner-Appellee, 5 v. NO. A-1-CA-38590 6 DEREK L., 7 Respondent-Appellant, 8 and 9 ANGELA C. f/k/a ANGELA L., 10 Respondent, 11 IN THE MATTER OF TIANNA L., 12 MATTHEW L., and LEVI L., 13 Children. 14 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 15 Bradford J. Dalley, District Judge 16 Rebecca J. Liggett, Chief Children’s Court Attorney 17 Santa Fe, NM 18 Kelly P. O’Neill, Children’s Court Attorney 19 Albuquerque, NM 20 for Appellee 21 The Law Offices of Nancy L. Simmons, P.C. 22 Nancy L. Simmons 23 Albuquerque, NM 24 for Appellant 25 Court of Appeals of New Mexico Filed 4/23/2020 9:30 AM
2
Richard J. Austin 1
Farmington, NM 2
Guardian Ad Litem 3
MEMORANDUM OPINION 4
VANZI, Judge. 5
{1} Respondent Derek L. (Father) appeals from the termination of his parental 6
rights to Matthew L. and Levi L. (Children). [DS 2] This Court issued a notice of 7
proposed disposition proposing to affirm the district court’s order. Father has filed a 8
memorandum in opposition with this Court, which we have duly considered. 9
Unpersuaded, we affirm. 10
{2} On appeal, Father contends that the district court’s order was not supported 11
by substantial evidence. [DS 10] We proposed to affirm on this issue in the notice 12
of proposed disposition. [CN 9] In response, Father continues to assert a lack of 13
substantial evidence based upon the following contentions. First, Father continues 14
to deny methamphetamine use [MIO 3], however, as stated in this Court’s notice of 15
proposed disposition, we will not reweigh the evidence on appeal. [CN 4] See State 16
ex rel. Children, Youth & Families Dep’t v. Vanessa C., 2000-NMCA-025, ¶ 24, 128 17
N.M. 701, 997 P.2d 833. 18
{3} Second, Father contends that three to four months of homelessness and 19
unemployment does not demonstrate that he will not be able to improve upon the 20
causes and conditions of neglect and notes that nineteen months to progress within 213
his case plan was insufficient “in light of Father’s need for consistent assistance to 1
address the conditions and causes of neglect.” [MIO 3-4] Father was required under 2
his case plan to maintain safe and stable housing, and he failed to comply with that 3
requirement by experiencing homelessness for approximately three to four months 4
prior to the time of the June 17, 2019 hearing. [2 RP 481] At that point in time, 5
Father was still not in compliance with his case plan over a year after the plan began. 6
As explained in the notice of proposed disposition, Father has failed to provide any 7
authority demonstrating that a year and seven months is an insufficient amount of 8
time to require a parent to comply with a case plan. [CN 6] See State ex rel. Children, 9
Youth & Families Dep't v. Elizabeth H., 2002-NMCA-061, ¶ 34, 132 N.M. 299, 47 10
P.3d 859 (stating that “in balancing the interests of the parents and children, the court 11
is not required to place the children indefinitely in a legal holding pattern” (internal 12
quotation marks and citation omitted)). Furthermore, it is not the responsibility of 13
the Department to provide Father with “consistent assistance,” as he asserts, but 14
rather, the Department is only required to provide “reasonable efforts.” See id. ¶ 27 15
(“[The Department] is only required to make reasonable efforts, not efforts subject 16
to conditions unilaterally imposed by the parent.”). 17
{4} Third, to the extent Father asserts in his memorandum in opposition that there 18
was not substantial evidence to support the district court’s ruling because his 19
treatment plan did not require him to complete a sexual offender program [MIO 4], 204
we are unpersuaded. The sexual offender program was a treatment recommended by 1
one of Father’s therapists and is therefore an example of Father’s failure to comply 2
with a component of the therapy required under his case plan. [MIO 4] The district 3
court found that Father did not complete the therapy required under his case plan. 4
[See 2 RP 488, 490] 5
{5} Father also continues to contend that “the Department did not make 6
reasonable efforts to support reunification, because he was not allowed to participate 7
in family therapy, and was denied his request for financial assistance to pay for 8
service providers.” [MIO 6] We proposed to affirm on this issue in the notice of 9
proposed disposition on the basis that the evidence was sufficient to support the 10
district court’s determination that the causes and conditions of neglect were unlikely 11
to change in the foreseeable future despite the Department’s reasonable efforts as a 12
result of Father’s lacking efforts to comply with his case plan. [CN 8] Regarding 13
Father’s family therapy, the district court found that he only “attended one individual 14
session to prepare for family therapy[,]” and “never followed through with making 15
appointments and therefore family sessions with the Children present never 16
occurred.” [2 RP 488] The district court also found that Father was “not ready for 17
family therapy due to [his] lack of compliance with [his] case plan[] and [his] lack 18
of change or improvement in the areas that caused the [C]hildren to be taken into 19
custody.” [2 RP 495 ¶ 38] Father’s contention that he did not fail to complete family 205
therapy according to his case plan because he was denied therapy sessions with 1
Children is unavailing because he did not make the appointments necessary to 2
prepare for family therapy with Children and did not meaningfully engage in his 3
individual therapy, generally, to make family therapy successful. 4
{6} Father reiterates and expands his contention that he was unable to complete 5
his case plan as a result of his poverty status, and states,“[w]here a fundamental right 6
is at stake, the State is required to do more to assist a parent to obtain financial 7
stability than the Department did here.” [MIO 6] However, Father does not cite any 8
authority that states the Department is required to provide effort beyond a reasonable 9
effort in assisting a parent in obtaining financial stability. See Curry v. Great Nw. 10
Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to 11
support an argument, we may assume no such authority exists.”). Furthermore, the 12
district court found that the Department assisted Father by offering to pay for 13
domestic violence services [2 RP 492 ¶ 31(g)] and by “urg[ing] Father to apply to 14
HUD and the Indian Center for housing assistance and provid[ing] a list of low- 15
income housing.” [2 RP 492 ¶ 31(k)] Father has failed to provide citations to the 16
record showing that he took advantage of the assistance the Department did provide; 17
when he requested financial assistance from the Department; or when and how the 18
Department responded. See Chan v. Montoya, 2011-NMCA-072, ¶ 9, 150 N.M. 44, 19
256 P.3d 987 (“It is not our practice to rely on assertions of counsel unaccompanied 206
by support in the record. The mere assertions and argument of counsel are not 1
evidence.” (internal quotation marks and citation omitted)). 2
{7} While Father is correct in asserting that “poverty alone does not support a 3
charge of neglect,” [MIO 7] here, the district court’s ruling was not based on Father’s 4
poverty status. Instead, the district court found that Father did not meaningfully 5
engage in his therapy [2 RP 495 ¶ 36], “avoid[ed] personal responsibility, has been 6
obstructive and deceptive, and has a poor prognosis for change.” [2 RP 495 ¶ 36] As 7
explained in the notice of proposed disposition, Father’s efforts and recalcitrance 8
were the basis for the termination of his parental rights and Father has not shown 9
that the Department did not exercise reasonable efforts in the attempted reunification 10
of Father and Children or that there was a lack of substantial evidence to support the 11
termination of his parental rights. [CN 8-9] 12
{8} Accordingly, for the reasons stated in our notice of proposed disposition and 13
herein, we affirm the district court’s order terminating Father’s parental rights to 14
Children. 15
{9} IT IS SO ORDERED. 16
_________________________________ 17
LINDA M. VANZI, Judge 187 WE CONCUR: 1 _________________________________ 2 MEGAN P. DUFFY, Judge 3 _________________________________ 4 BRIANA H. ZAMORA, Judge 5
1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
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Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
STATE OF NEW MEXICO ex rel. Filed 4/23/2020 9:30 AM
CHILDREN, YOUTH & FAMILIES fl
DEPARTMENT, ow [> |
Mark Reynol
Petitioner-Appellee, omens
V. NO. A-1-CA-38590
DEREK L.,
Respondent-Appellant,
and
ANGELA C. f/k/a ANGELA L.,
Respondent,
IN THE MATTER OF TIANNA L.,
MATTHEW L., and LEVI L.,
Children.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Bradford J. Dalley, District Judge
Rebecca J. Liggett, Chief Children’s Court Attorney
Santa Fe, NM
Kelly P. O’Neill, Children’s Court Attorney
Albuquerque, NM
for Appellee
The Law Offices of Nancy L. Simmons, P.C.
Nancy L. Simmons
Albuquerque, NM
for Appellant
2
Richard J. Austin 1
Farmington, NM 2
Guardian Ad Litem 3
MEMORANDUM OPINION 4
VANZI, Judge. 5
{1} Respondent Derek L. (Father) appeals from the termination of his parental 6
rights to Matthew L. and Levi L. (Children). [DS 2] This Court issued a notice of 7
proposed disposition proposing to affirm the district court’s order. Father has filed a 8
memorandum in opposition with this Court, which we have duly considered. 9
Unpersuaded, we affirm. 10
{2} On appeal, Father contends that the district court’s order was not supported 11
by substantial evidence. [DS 10] We proposed to affirm on this issue in the notice 12
of proposed disposition. [CN 9] In response, Father continues to assert a lack of 13
substantial evidence based upon the following contentions. First, Father continues 14
to deny methamphetamine use [MIO 3], however, as stated in this Court’s notice of 15
proposed disposition, we will not reweigh the evidence on appeal. [CN 4] See State 16
ex rel. Children, Youth & Families Dep’t v. Vanessa C., 2000-NMCA-025, ¶ 24, 128 17
N.M. 701, 997 P.2d 833. 18
{3} Second, Father contends that three to four months of homelessness and 19
unemployment does not demonstrate that he will not be able to improve upon the 20
causes and conditions of neglect and notes that nineteen months to progress within 21
3
his case plan was insufficient “in light of Father’s need for consistent assistance to 1
address the conditions and causes of neglect.” [MIO 3-4] Father was required under 2
his case plan to maintain safe and stable housing, and he failed to comply with that 3
requirement by experiencing homelessness for approximately three to four months 4
prior to the time of the June 17, 2019 hearing. [2 RP 481] At that point in time, 5
Father was still not in compliance with his case plan over a year after the plan began. 6
As explained in the notice of proposed disposition, Father has failed to provide any 7
authority demonstrating that a year and seven months is an insufficient amount of 8
time to require a parent to comply with a case plan. [CN 6] See State ex rel. Children, 9
Youth & Families Dep't v. Elizabeth H., 2002-NMCA-061, ¶ 34, 132 N.M. 299, 47 10
P.3d 859 (stating that “in balancing the interests of the parents and children, the court 11
is not required to place the children indefinitely in a legal holding pattern” (internal 12
quotation marks and citation omitted)). Furthermore, it is not the responsibility of 13
the Department to provide Father with “consistent assistance,” as he asserts, but 14
rather, the Department is only required to provide “reasonable efforts.” See id. ¶ 27 15
(“[The Department] is only required to make reasonable efforts, not efforts subject 16
to conditions unilaterally imposed by the parent.”). 17
{4} Third, to the extent Father asserts in his memorandum in opposition that there 18
was not substantial evidence to support the district court’s ruling because his 19
treatment plan did not require him to complete a sexual offender program [MIO 4], 20
4
we are unpersuaded. The sexual offender program was a treatment recommended by 1
one of Father’s therapists and is therefore an example of Father’s failure to comply 2
with a component of the therapy required under his case plan. [MIO 4] The district 3
court found that Father did not complete the therapy required under his case plan. 4
[See 2 RP 488, 490] 5
{5} Father also continues to contend that “the Department did not make 6
reasonable efforts to support reunification, because he was not allowed to participate 7
in family therapy, and was denied his request for financial assistance to pay for 8
service providers.” [MIO 6] We proposed to affirm on this issue in the notice of 9
proposed disposition on the basis that the evidence was sufficient to support the 10
district court’s determination that the causes and conditions of neglect were unlikely 11
to change in the foreseeable future despite the Department’s reasonable efforts as a 12
result of Father’s lacking efforts to comply with his case plan. [CN 8] Regarding 13
Father’s family therapy, the district court found that he only “attended one individual 14
session to prepare for family therapy[,]” and “never followed through with making 15
appointments and therefore family sessions with the Children present never 16
occurred.” [2 RP 488] The district court also found that Father was “not ready for 17
family therapy due to [his] lack of compliance with [his] case plan[] and [his] lack 18
of change or improvement in the areas that caused the [C]hildren to be taken into 19
custody.” [2 RP 495 ¶ 38] Father’s contention that he did not fail to complete family 20
5
therapy according to his case plan because he was denied therapy sessions with 1
Children is unavailing because he did not make the appointments necessary to 2
prepare for family therapy with Children and did not meaningfully engage in his 3
individual therapy, generally, to make family therapy successful. 4
{6} Father reiterates and expands his contention that he was unable to complete 5
his case plan as a result of his poverty status, and states,“[w]here a fundamental right 6
is at stake, the State is required to do more to assist a parent to obtain financial 7
stability than the Department did here.” [MIO 6] However, Father does not cite any 8
authority that states the Department is required to provide effort beyond a reasonable 9
effort in assisting a parent in obtaining financial stability. See Curry v. Great Nw. 10
Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to 11
support an argument, we may assume no such authority exists.”). Furthermore, the 12
district court found that the Department assisted Father by offering to pay for 13
domestic violence services [2 RP 492 ¶ 31(g)] and by “urg[ing] Father to apply to 14
HUD and the Indian Center for housing assistance and provid[ing] a list of low- 15
income housing.” [2 RP 492 ¶ 31(k)] Father has failed to provide citations to the 16
record showing that he took advantage of the assistance the Department did provide; 17
when he requested financial assistance from the Department; or when and how the 18
Department responded. See Chan v. Montoya, 2011-NMCA-072, ¶ 9, 150 N.M. 44, 19
256 P.3d 987 (“It is not our practice to rely on assertions of counsel unaccompanied 20
6
by support in the record. The mere assertions and argument of counsel are not 1
evidence.” (internal quotation marks and citation omitted)). 2
{7} While Father is correct in asserting that “poverty alone does not support a 3
charge of neglect,” [MIO 7] here, the district court’s ruling was not based on Father’s 4
poverty status. Instead, the district court found that Father did not meaningfully 5
engage in his therapy [2 RP 495 ¶ 36], “avoid[ed] personal responsibility, has been 6
obstructive and deceptive, and has a poor prognosis for change.” [2 RP 495 ¶ 36] As 7
explained in the notice of proposed disposition, Father’s efforts and recalcitrance 8
were the basis for the termination of his parental rights and Father has not shown 9
that the Department did not exercise reasonable efforts in the attempted reunification 10
of Father and Children or that there was a lack of substantial evidence to support the 11
termination of his parental rights. [CN 8-9] 12
{8} Accordingly, for the reasons stated in our notice of proposed disposition and 13
herein, we affirm the district court’s order terminating Father’s parental rights to 14
Children. 15
{9} IT IS SO ORDERED. 16
_________________________________ 17
LINDA M. VANZI, Judge 18
1
WE CONCUR:
Megan P Duffy
MEGAN P. DUFFY, Judge
Briana Primeira
BRIANA H. ZAMORA, Judge
7
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