February 11, 2009 – State of New Mexico ex rel. Children, Youth and Families Department v. Lance K., No. 26,632

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	FEBRUARY 11, 2009
NO. 26,632
STATE OF NEW MEXICO ex rel.
CHILDREN, YOUTH AND FAMILIES
DEPARTMENT,
Petitioner-Appellee,
v.
LANCE K.,
Respondent-Appellant.
and
In the Matter of EMILY K., ARIEL K.,
and ZACHARY K., Children.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Tommy E. Jewell, District Judge
Children, Youth & Families Department
Simon Romo, 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
Karen Cantrell
Placitas, NM
Guardian Ad Litem

OPINION
FRY, Chief Judge.
{1} 	The opinion filed in this case on December 18, 2008, is withdrawn, and the
following opinion is filed in its place.
{2} 	Father appeals from a judgment terminating his parental rights to his children
Ariel and Zachary. 	He also appeals from the trial court’s order requiring him to
submit to a paternity test with respect to a third child, Emily, and, upon DNA testing
establishing that he is not Emily’s biological father, the order denying him continued
visitation with Emily. 	We reverse the termination of Father’s parental rights and
affirm the orders related to Emily.
BACKGROUND
{3} 	The Children, Youth & Families Department (CYFD) filed a petition alleging
abuse and neglect on April 2, 2002, and alleged that the family had been the subject
of several prior referrals, that the family had been unable to eradicate an ongoing
problem daughters Emily and Ariel had with lice, that Emily had serious mental health
needs that the parents had been unable to address, and that both parents had substance
abuse problems. The affidavit filed with the petition included details regarding the
prior referrals. When the children were taken into custody, Emily was eight years old,
Ariel was six, and Zachary was ten months old.

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{4} 	Father pleaded no contest to the allegations of abuse and neglect in November
2002. Also in November 2002, the parents were divorced. CYFD’s report at the time,
which the trial court incorporated into its dispositional judgment, alleged that Emily
disclosed that a friend of Father had digitally penetrated her, that she had numerous
sexual encounters with boys, that Father had showed her an X-rated movie, and that
she had overheard Mother having sex with a boyfriend. The report further alleged that
Emily had been exhibiting increased aggression toward her siblings and increased
sexual behavior.
{5} 	The report also maintained that Father would not “take any responsibility or
acknowledge that there is a problem with the decisions he has made concerning his
children,” and alleged that Father had “compromised the best interest of his children”
by distributing leaflets at Ariel’s school apparently accusing CYFD of wrongfully
holding the children in custody. The treatment plan required Father to provide CYFD
with a list of relatives who would be willing to care for the children, pay $50 per
month in child support, attend AA meetings three times per week, participate in an
evaluation for psychiatric medication, participate in counseling, submit to a paternity
test, have weekly visits with the children, participate in a domestic violence
assessment, complete a drug/alcohol assessment, participate in the children’s therapy

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sessions as recommended by the therapists, participate in parenting classes, and
submit to random urinalyses (UAs).
{6} 	By April 2003, the trial court approved changing the permanency plan from
reunification to permanent guardianship with the children’s maternal aunt. Father had
complied 	with 	his 	treatment 	plan’s 	requirements 	for 	counseling, 	visitation,
psychological evaluations, AA attendance, clean UAs, and parenting classes, but his
counselor reported that Father “is not committed to changing, [and] he does not
engage in treatment sessions.” On several occasions when Father and Mother were
supposed to bring the children’s lunch to a visitation session, the parents brought junk
food. In addition, Father had apparently told Emily that she should not trust anyone
at CYFD and that there were cameras set up in the visitation rooms. He also told Ariel
not to tell anyone that she had lice and implied that having lice was her fault.
{7} 	Mother ultimately relinquished her parental rights to the children in May 2003.
At the next permanency hearing in May 2003, the court approved changing the
permanency plan to termination of parental rights and adoption. CYFD reported that
Father had not had any positive UAs since the last hearing, he had paid $300 in child
support, attended counseling sessions, successfully completed the required parenting
classes, had a domestic violence assessment, and attended all visitation sessions.

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However, the counseling service “continue[d] to report that [Father] has no desire to
change” and that “[i]t is difficult for [Father] to make substantial progress when he is
unwilling to even admit that he might have some areas of his life that need ‘work’.”
Emily reported that Father’s friend had sexually assaulted her and that Father knew
about it but allowed it. CYFD was going to investigate the allegations.
{8} 	CYFD filed a motion to terminate Father’s parental rights in July 2003. 	As
grounds for termination, the petition alleged that the children had been neglected or
abused and that “the conditions and causes of the neglect or abuse are unlikely to
change in the foreseeable future despite reasonable efforts by [CYFD].” 	These
allegations constitute a claim under NMSA 1978, § 32A-4-28(B)(2) (2005). 	The
petition then reviewed the progress of the case and repeated the allegations from the
original April 2002 petition for custody regarding the girls’ lice and Emily’s mental
health issues, Father’s failure to participate in previous services provided to Mother,
Father’s alcohol and marijuana abuse problem, and Father’s distribution of fliers at
the children’s school. At about the same time, the parties stipulated to a paternity test
to determine the identity of Emily’s father. The test revealed that Emily’s biological
father was someone other than Father, and her biological father relinquished his
parental rights to Emily.

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{9} 	At the next permanency hearing in November 2003, the court adopted CYFD’s
report, which stated that Father had made three child support payments, provided
proof of his attendance at AA meetings, attended all visitation sessions, completed the
victims’ group for domestic violence, underwent a substance abuse assessment, and
participated in a neuropsychological evaluation. However, the report noted that it had
not yet received a report on Father’s medication evaluation, that Father gave hard
candy to Zachary despite being told not to, and that Zachary choked on it. The report
reiterated comments from the May 2003 report that the therapist had reported that
Father was attending counseling but not engaging and that Father had told the girls not
to report that they had lice.
{10} 	In February 2004, Father filed a motion to re-establish visitation with Emily.
The trial court first ruled that Father does not have a liberty interest in a relationship
with Emily because he is not Emily’s biological father. However, the court ruled that
Father would be allowed to prove that it would be in Emily’s best interest to have a
relationship with him. The trial court conducted thirteen hearings on the issue from
December 2004 to December 2005.
{11} 	Meanwhile, CYFD filed an amended motion for termination of Father’s
parental rights, which added allegations that, if true, would establish that Father had

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presumptively abandoned the children in accordance with Section 32A-4-28(B)(3).
{12} 	Following the permanency hearing in November 2004, the special master found
in his order that Father had not paid child support since October 2003, he was bringing
high-sugar snacks to visits with the children, he had been providing the required UAs,
and he had consistently visited the children. CYFD’s report, which was incorporated
into the order, stated that Father had provided all UAs, which were negative, that
Father was attending psychotherapy sessions, and that his therapist reported that
Father was “doing very well.” The therapist further reported that Father “is able to
recognize that he has made some poor choices regarding his personal life that have
affected his children.”
{13} 	The final permanency hearing orders from May 2005 and December 2005
contained similar findings. The May order found that Father attended AA meetings
at least once a week and was approaching nine months of sobriety and that Father
attended 	all 	visitation 	sessions, 	provided 	clean 	UAs, 	and 	participated 	in
psychotherapy. 	The December order stated that CYFD had not received proof of
Father’s attendance at AA meetings in September and October and that Father had
missed a few Uas. In both the May and December orders, the only negative findings
regarding Father related to Father’s refusal to accept responsibility for CYFD’s having

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to take the children into custody in the first place. Also in December 2005, the trial
court denied Father’s motion for contact with Emily.
{14} 	The trial court held seven hearings on the motion for termination of parental
rights from December 2005 through January 2006. On February 28, 2006, nearly four
years after the children were taken into custody, the court entered its judgment finding
that “[t]here is clear and convincing evidence that [Father’s] parental rights to and of
Ariel and Zachary . . . should be terminated.” The court did not file findings of fact
and conclusions of law on the issue of termination. This appeal followed.
DISCUSSION
{15} 	Father makes four arguments on appeal, contending that: 	(1) there was not
clear and convincing evidence to support a determination that the causes and
conditions of neglect were unlikely to change in the foreseeable future; (2) the trial
court abused its discretion when it applied the factors set out in Tedford v. Gregory,
1998-NMCA-067, 125 N.M. 206, 959 P.2d 540, in connection with the order
requiring a paternity test and the order denying Father’s motion for contact with
Emily; (3) to the extent the testimony on inaudible tapes and/or CDs that was
reconstructed by the parties is unsatisfactory, reliance on the reconstructed testimony
violates Father’s right to due process; and (4) the presiding judge should have recused

8
himself. Because we conclude that substantial evidence does not support termination
of Father’s parental rights and reverse the judgment on that basis, we need not address
the acceptability of the reconstructed testimony or the argument regarding recusal.
We affirm the orders requiring the paternity test and denying Father contact with
Emily.
1. 	Sufficiency of the Evidence
{16} 	The standard of proof for termination of parental rights is clear and convincing
evidence. 	State ex rel. Children, Youth & Families Dep’t v. Vanessa C., 2000-
NMCA-025, ¶ 24, 128 N.M. 701, 997 P.2d 833. Clear and convincing evidence is
defined as evidence that “instantly tilt[s] the scales in the affirmative when weighed
against the evidence in opposition and the fact finder’s mind is left with an abiding
conviction that the evidence is true.” In re Termination of Parental Rights of Eventyr
J., 120 N.M. 463, 466, 902 P.2d 1066, 1069 (Ct. App. 1995) (internal quotation marks
and citation omitted). “The function of the appellate court is to view the evidence in
the light most favorable to the prevailing party, and to determine therefrom if the mind
of the fact[]finder could properly have reached an abiding conviction as to the truth
of the fact or facts found.” In re Melissa G., 2001-NMCA-071, ¶ 12, 130 N.M. 781,
32 P.3d 790 (internal quotation marks and citation omitted).

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{17} 	As an initial matter, we observe that the trial court did not enter findings of fact
and conclusions of law supporting its determination to terminate parental rights,
despite the fact that Father filed requested findings and conclusions. 	There are a
number of difficulties that arise from the trial court’s failure to make specific findings.
First, our rules require a court to file findings and conclusions when requested to do
so. See Rule 1-052(A) NMRA (stating that “the court shall enter findings of fact and
conclusions of law when a party makes a timely request”). Second, the absence of
findings and conclusions hampers our ability to review the issues raised on appeal.
Cf. State ex rel. Children, Youth & Families Dep’t v. Benjamin O., 2007-NMCA-070,
¶¶ 23, 48, 141 N.M. 692, 160 P.3d 601 (remanding for entry of findings of fact
because the record in the trial court was insufficiently developed to allow meaningful
review). For example, we are unable to determine whether the trial court relied on
Section 32A-4-28(B)(2) or (B)(3) in entering the judgment of termination.
{18} 	We nonetheless decline to remand for entry of findings and conclusions under
the particular circumstances of this case. It has now been over six years since CYFD
took custody of the children from their parents, and we are loath to subject them to
any more delay in permanency than is absolutely necessary. 	In addition, the trial
judge who presided over the numerous, lengthy hearings has retired, part of the record

10
has been reconstructed, and remand would require a new judge to review the entire
record in order to prepare meaningful findings of fact. We therefore rely on appellate
presumptions to conclude that the trial court found all facts necessary to support
termination of parental rights pursuant to all available theories. 	See Reeves v.
Wimberly, 107 N.M. 231, 236, 755 P.2d 75, 80 (Ct. App. 1988) (“Upon a doubtful or
deficient record, every presumption is indulged in favor of the correctness and
regularity of the trial court’s decision, and the appellate court will indulge in
reasonable presumptions in support of the order entered.”). Our task on appeal is to
determine whether clear and convincing evidence supports termination under either
Section 32A-4-28(B)(2) or (B)(3).
a. 	Evidence Supporting Termination Under Section 32A-4-28(B)(2)
{19} 	A court may terminate a person’s parental rights when the state proves by clear
and convincing evidence that a child has been neglected or abused, and the court finds
that the conditions and causes of abuse or neglect are unlikely to change in the
foreseeable future despite reasonable attempts by CYFD. 	§ 32A-4-28(B)(2).
Although Father pleaded no contest in 2002 to the allegations of abuse and neglect,
we agree with his argument that clear and convincing evidence does not support a
determination that the conditions and causes of abuse or neglect are unlikely to change

11
in the foreseeable future.
{20} 	CYFD crafted an extensive treatment plan for Father that included therapy,
classes, assessments, UAs, attendance at AA meetings, visitation with the children,
and payment of child support. At the time CYFD took the children into custody, the
major problem attributed to Father was his alcohol and marijuana dependency. Over
the nearly four years between custody and termination, Father addressed this problem
effectively. Virtually all permanency reports stated that Father’s UAs were negative,
and he regularly attended AA meetings. 	By the time the trial court terminated
Father’s rights, CYFD made no mention of any concern regarding Father’s drinking.
Father also complied with all other requirements of the treatment plan with the
exception of the requirement for child support payments. It appears that Father made
some but not all of the child support payments. Again, CYFD did not rely on Father’s
failure to make child support payments as evidence supporting termination.
{21} 	In its brief on appeal, CYFD cites the following failures of Father in support of
termination: 	(1) he did not understand the harm that had been done to Emily and
Ariel, and (2) he did not take responsibility for his role in CYFD’s taking the children
into custody. We address each alleged failure in turn.
Failure to Understand Harm Done to the Girls

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{22} 	With respect to Father’s failure to understand the harm that had been done to
Emily and Ariel, CYFD points to Father’s refusing to believe Emily’s disclosure that
Father’s friend Lloyd had sexually abused her, Father’s minimizing of Emily’s
sexualized and aggressive behaviors, and Father’s failure to productively participate
in treatment team meetings. Regarding the incident involving Lloyd, Father testified
that the family lived near Lloyd, who lived with his mother, his sister, and his brother,
that the children played with Lloyd’s brother’s children, and that the two families
socialized. Emily said nothing to Father about Lloyd’s having acted inappropriately,
and the first time Father learned about the accusation was after Emily made the
disclosure in a safehouse interview in 2002 about an incident she alleged had occurred
in 2000. Father subsequently ran into Lloyd and asked him about it, and Lloyd denied
the allegation and offered to testify. Although the State investigated the allegation,
the molestation has never been proved, as far as Father knows.
{23} 	As for Father’s minimizing of Emily’s sexualized and aggressive behaviors,
Father testified that he thinks some children are more sexualized than others and that
Emily may have been picking up cues from Mother. When asked what might have
motivated Emily’s tendencies to masturbate in public, sometimes with a Coke bottle,
Father testified that he masturbated at a young age and that he understood that Emily

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may have overheard Mother having sex with her boyfriend. 	He also admitted to
having let Emily watch a movie called “The Breast Men,” which he did not consider
to be pornographic and which did not show the sex act, but from which Emily may
have pieced things together. He testified that in hindsight, he probably should not
have let her see the movie. Emily’s therapist testified that Father told her that she (the
therapist) was overreacting to Emily’s sexualized behaviors.
{24} 	Finally, CYFD contends that Father did not participate meaningfully in
treatment team meetings. Emily’s therapist testified that it was her understanding that
Father did not trust CYFD and told Emily not to disclose things to her therapist or to
social workers. A social worker who was assigned to work with the family in March
2002 testified that Father declined to work with her because he said the social worker
was working with Mother. Another social worker testified that Father had distributed
fliers regarding “freeing” the children and referencing Emily’s “situation” in July
2002. 	A CYFD social worker testified that Father had initially participated in
treatment team meetings about Emily, but that it was difficult to get him to focus on
Emily’s treatment. He appeared to be making fun of the team, and he suggested that
Emily’s self-destructive and aggressive behaviors were normal and that the team was
blowing everything out of proportion. At about that time, a paternity test revealed that

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Father was not Emily’s biological father, and the team determined that Father should
not continue on the team.
{25} 	We have difficulty concluding that Father’s conduct in these instances
constituted clear and convincing evidence that the causes and conditions of neglect
were unlikely to change in the foreseeable future. These behaviors related exclusively
to Emily, who was ultimately determined not to be Father’s biological child. CYFD
observes that Father’s conduct with respect to Emily may suggest how he parents
Ariel and Zachary. While this may be true, there is no evidence suggesting that Ariel
and Zachary have any of the mental health problems Emily had. 	Cf. State ex rel.
Children, Youth & Families Dep’t v. Patricia H., 2002-NMCA-061, ¶¶ 17, 33-35,132
N.M. 299, 47 P.3d 859 (recognizing that a parent’s abilities may depend on whether
child is normal or has specialized needs). Moreover, the conduct about which CYFD
complains can be viewed as reflecting Father’s mistrust of CYFD in general and his
disagreement with CYFD’s assessments regarding the validity of Emily’s allegation
about Lloyd—which was never substantiated—and the source of Emily’s sexualized
behavior. 	While Father’s assessments in this area may have been naive or
demonstrated imperfect judgment, we cannot say that they “instantly tilt the scales”
toward a fact finder’s abiding conviction that Father is unable to be an adequate parent

15
to Ariel and Zachary. Many perfectly adequate parents sometimes exhibit naivete and
imperfect judgment.
{26} 	In addition, much of Father’s conduct about which CYFD complains, such as
his reaction to Emily’s accusation regarding Lloyd, his showing Emily the movie, and
his non-participation in the treatment team’s effort, occurred several years prior to
termination of his rights. Consequently, “[the] evidence was stale for the purpose of
determining whether those conditions persisted at the time of the hearing or would
persist into the future.” 	State ex rel. Dep’t of Human Servs. v. Natural Mother, 96
N.M. 677, 679, 634 P.2d 699, 701 (Ct. App. 1981).
Failure to Take Responsibility for the Causes of CYFD’s Taking Custody
{27} 	CYFD also relies on Father’s refusal to take responsibility for the conditions
that caused CYFD to take the children into custody in the first place. 	In the
permanency reports from November 2002, April 2003, and May 2003, CYFD noted
that Father’s counselor had reported that Father was not committed to change or
willing to accept responsibility for anything that had happened. The next report in
November 2003 reiterated the counselor’s report from May 2003. However, in the
November 2004 report, CYFD noted that Father’s counselor had reported that Father
was “doing very well” and that he was “able to recognize that he has made some poor

16
choices regarding his personal life that have affected his children.”
{28} 	Dr. Montoya testified that Father did not take any responsibility for the
children’s being in CYFD custody. Social worker Heather Carrica offered the same
opinion and stated that Father said he was a perfect parent being pursued by CYFD
because CYFD did not agree with his political views. However, Father’s therapist
testified that she had seen Father make positive behavioral changes, that he was
learning skills to manage his moods, and that he had made good progress.
{29} 	The conditions that brought the children into custody were the girls’ lice
infestations, Emily’s mental health issues, and the parents’ substance abuse problems.
Apparently the lice were brought under control because they were not mentioned after
the April 2003 permanency report. Emily continues to deal with mental health issues;
according to the December 2005 report, she had been diagnosed with attention
deficit/hyperactive disorder, depression, and post traumatic stress disorder. However,
a paternity test established that Father is not Emily’s biological parent, and Father has
had no contact with Emily since at least February 2004. 	Father has resolved his
substance abuse issues and, as of May 2005, he had been sober for nine months.
Thus, the conditions that caused CYFD to take custody of Father’s two biological
children—the lice and Father’s substance abuse—have been resolved.

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{30} 	Although there is certainly evidence that Father does not take complete
responsibility 	for 	the 	children’s 	being 	in 	CYFD 	custody, 	the 	evidence 	also
establishes—and CYFD does not dispute—that Father took responsibility for and
gained control over the primary impediment to adequate parenting, which was his
substance abuse problem. The girls’ 2002 lice infestation and Father’s failure to admit
responsibility for it do not, in our view, constitute grounds for termination of Father’s
parental rights.
{31} 	CYFD’s real complaint about Father appears from the record to be his
willingness to leave the children in Mother’s care around the time CYFD took custody
in 2002, when Mother was clearly having difficulty coping. 	Many of CYFD’s
questions of Father at the various hearings revolved around this situation. 	Father
testified that he was trying to juggle school and work and that he sometimes had to
leave the children with Mother. There was evidence that Mother was intermittently
dependent on drugs and that she engaged in prostitution at times, although Father
denied knowing that any of these things were happening during the times he left the
children with Mother.
{32} 	Again, CYFD relies on stale evidence. Even if Father exhibited bad judgment
in leaving the children with Mother and even if he was unable to get the girls’ lice

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under control, these events occurred in 2002, nearly four years before the trial court
terminated Father’s parental rights. The opinions expressed by Dr. Montoya and the
social worker Carrica that Father was unwilling to accept responsibility were based
on stale information as well. Dr. Montoya saw Father in 2003, a little over two years
prior to termination. Although Carrica was the supervising social worker on the case
the entire time, her testimony at the July 5, 2005, termination hearing appeared to be
simply a reiteration of her testimony at the permanency hearing on February 18, 2003.
Carrica appeared to disregard the more recent reports by Father’s therapist that Father
was “able to recognize that he has made some poor choices regarding his personal life
that have affected his children” and that she had seen Father make positive behavioral
changes.
{33} 	In our view, this case bears close resemblance to three of our prior decisions:
State ex rel. Children, Youth & Families Dep’t v. Hector C., 2008-NMCA-079, 144
N.M. 222, 185 P.3d 1072, cert. denied, 2008-NMCERT-004, 144 N.M. 48, 183 P.3d
933, State ex rel. Children, Youth & Families Dep’t v. Joseph M., 2006-NMCA-029,
139 N.M. 137, 130 P.3d 198, and Natural Mother. In Hector C., we held that there
was insufficient evidence to support a finding that the causes and conditions of neglect
were unlikely to change in the foreseeable future because the father was incarcerated

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at the time the children were taken into custody and for almost two years after that.
Id. ¶¶ 1-2, 8. 	CYFD failed to present the opinion of any expert “based on [the
f]ather’s current situation and on new information that had become available since [the
testifying psychologist’s] evaluation.” Id. ¶ 19. Like Father in the present case, the
father in Hector C. complied with his treatment plan after his release and made
significant progress toward change. Id. ¶ 20.
{34} 	In Joseph M., the father made progress and successfully resolved his substance
abuse problems, just as Father has done here. 2006-NMCA-029, ¶¶ 10-12. While the
father in Joseph M. had some continuing problems similar to those emphasized by
CYFD in the present case, such as failure to appreciate the seriousness of his
children’s having witnessed domestic violence, difficulty picking up on his children’s
cues, and difficulty relating to the children, id. ¶ 13, we nonetheless reversed the
termination of his parental rights. 	CYFD had treated both parents as a unit even
though it was the mother who had more serious problems and who made no progress
in her treatment plan. Id. ¶ 10. In support of termination of the father’s rights, CYFD
pointed to the father’s unwillingness to raise the children without the mother. Id. ¶ 19.
We noted that CYFD never told the father that his unwillingness to separate from the
mother could be a basis for termination of his rights. Id. ¶ 20.

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{35} 	Finally, in Natural Mother, after the children were taken into custody, the
mother divorced the father, who drank and could not hold down a job, she obtained
a job and adequate housing, worked out a future plan, and complied with her
agreements with the department having custody. 96 N.M. at 678-79, 634 P.2d at 700-
01. 	The evidence in support of terminating the mother’s parental rights related to
events prior to the time the children were taken into custody. Id. at 679, 634 P.2d at
701. 	We concluded that the evidence “was stale for the purpose of determining
whether those conditions persisted at the time of the hearing or would persist into the
future.” 	Id. 	We reversed the termination of the mother’s rights, noting that “[s]he
ha[d] not been afforded the opportunity to demonstrate what kind of a parent she
would be today.” Id. at 681, 634 P.2d at 703.
{36} 	The facts in the present case are similar to the salient facts in the three cases just
discussed. Like the parents in Joseph M. and Natural Mother, Father complied with
his treatment plan in virtually every significant respect, including the successful
resolution of his substance abuse problems. And, as in Hector C. and Natural Mother,
the evidence CYFD relied on was somewhat stale. In contrast to this dated evidence,
the court-appointed Rule 11-706 NMRA expert, Candace Kern, testified regarding an
attachment study of Father and the three children that she conducted after Dr.

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Montoya evaluated Father. Dr. Kern’s report concluded that “Ariel is able to express
a shy joyfulness at being with her father . . . [and s]he is desirous of being close to
him.” Dr. Kern also concluded that, although Zachary was taken into custody when
he was only ten months old, his “attachment with his father is positive. 	He is
immediately comfortable . . . [and] regards his father as a warm, friendly person who
wants to interact with him.” Dr. Kern opined that Father was “openly affectionate”
with the children, “interested in what they said and did, and responsive. . . . He has
the capacity to interact with others with love, and empathy, and to modulate his
feelings.” 	Finally, Dr. Kern stated that both Ariel and Zachary were “positively
attached” to Father, and that “[i]t is detrimental to deprive [Children] of this emotional
relationship.”
{37} 	In light of Father’s substantial compliance with his treatment plan and progress
toward change, we cannot say that CYFD presented clear and convincing evidence
that the causes and conditions of neglect were unlikely to change in the foreseeable
future. We recognize that the extremely long time the children were in custody may
have motivated CYFD to recommend termination, given how well the children were
doing in their foster home. However, “[t]he fact that a child might be better off in a
different environment is not a basis for termination of parental rights in this state.”

22
Patricia H., 2002-NMCA-061, ¶ 21 (internal quotation marks and citation omitted).
{38} 	We also wish to express our concern with the conduct of this case. We see no
justification for the extremely long delay between the taking of custody and the
termination of Father’s parental rights. 	The trial court approved changing the
permanency plan to termination/adoption in July 2003, but termination did not occur
until nearly three years later. 	The trial court held a total of thirteen hearings on
Father’s motions related to maintaining his relationship with Emily and seven hearings
on the motion for termination. 	Some of the evidence at these hearings was
duplicative. 	While we fully appreciate the fundamental importance of providing
parents with due process in such proceedings, surely the proceedings could have been
streamlined and abbreviated in some fashion without doing violence to the rights of
any of the parties. That Father was able to maintain a positive relationship with the
children during this inordinate delay is a testament to his determination to continue
to parent the children.
b. 	Evidence Supporting Termination Under Section 32A-4-28(B)(3)
{39} 	There being insufficient evidence to support termination under Section 32A-4-
28(B)(2), we consider the other possible ground for termination. Under Section 32A-
4-28(B)(3), a court may terminate parental rights based on presumptive abandonment

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if
the child has been placed in the care of others, including care by other
relatives, either by a court order or otherwise and the following
conditions exist:
(a) 	the child has lived in the home of others for an extended
period of time;
(b) 	the parent-child relationship has disintegrated;
(c) 	a psychological parent-child relationship has developed
between the substitute family and the child;
(d) 	if the court deems the child of sufficient capacity to express
a preference, the child no longer prefers to live with the natural parent;
(e) 	the substitute family desires to adopt the child; and
(f) 	a presumption of abandonment created by the conditions
described in Subparagraphs (a) through (e) of this paragraph has not
been rebutted.
Id.
{40} 	Although there is arguably evidence that would support findings (a), (c), and
(e), CYFD failed to present evidence supporting a finding that the relationship
between Father and the children Ariel and Zachary has disintegrated. Even if there
were such evidence, Dr. Kern’s testimony regarding the attachment and relationship
among the three effectively rebuts that evidence. We therefore conclude that clear and
convincing evidence does not support termination under this part of the statute.

24
c. 	The Best Interests of the Children
{41} 	Because we are reversing the judgment of termination, our decision raises the
prospect of tremendous emotional upheaval in the lives of the children, who have
lived in a foster home since April 2002. By the same token, however, Father has been
deprived of contact with his children since his parental rights were erroneously
terminated in February 2006. As we noted in Benjamin O., “[w]hile we are cognizant
of the fact that [the children are] not a trophy to be awarded to whichever party
prevails in court, we also are sympathetic to the fact that, but for the erroneous
[termination of Father’s parental rights], he might not be in the position that he is
now.” 2007-NMCA-070, ¶ 38. It is clear that the district court is in the best position
to determine the present circumstances of the children and Father and to balance the
emotional interests of the children and Father’s rights. Therefore, we remand this case
to the district court to determine how best to proceed. 	We look to the statutory
provisions of the Abuse and Neglect Act (the Act), NMSA 1978, §§ 32A-4-1 to -34
(1993, as amended through 2005), for assistance in providing guidance to the district
court on how it is to proceed. See Benjamin O., 2007-NMCA-070, ¶ 34 (turning to
Abuse and Neglect Act to determine the appropriate procedure following reversal of
an adjudication of abuse or neglect).

1We rely on the version of Section 32A-4-25.1 that was in effect when CYFD
initially filed its petition in April 2002.
25
{42} 	When a district court determines that a child has been abused or neglected, the
court proceeds to enter a dispositional order determining who will have custody of the
child and ordering CYFD to implement and the child’s parent to cooperate with an
approved treatment plan. § 32A-4-22(B), (C). This dispositional order is then subject
to periodic judicial reviews, § 32A-4-25, and the court holds regular permanency
hearings. 	§ 32A-4-25.1 (1997), amended by 2005 N.M. Laws ch. 189, § 50. 1 In
permanency hearings following the initial permanency hearing, the operative
rebuttable presumption is that “the child’s best interest will be served by changing the
child’s permanency plan to provide for adoption of the child, emancipation of the
child, permanent guardianship for the child or long-term foster care for the child.” §
32A-4-25.1(E).
{43} 	Here we reach the crux of the matter in this case. At the permanency hearing,
[i]f sufficient evidence is presented to rebut, by a preponderance of the
evidence, the presumption set forth in Subsection E of this section, the
court shall order one of the following dispositions:
(1) dismiss the case and return the child to his parent, guardian or
custodian; or
(2) return the child to his parent, guardian or custodian, subject to

26
those conditions and limitations the court may prescribe, including
protective supervision of the child by the department and continuation
of the treatment plan for not more than six months.
§ 32A-4-25.1(G). 	This statutory scenario comes close to approximating what has
occurred here. 	Our reversal of the district court’s termination of Father’s parental
rights is in many ways the equivalent of a rebutted presumption favoring adoption.
Consequently, the alternative dispositions mandated in Section 32A-4-25.1(G) are
persuasive indications of what should happen on remand.
{44} 	Because of the lengthy separation of Father from the children, outright
dismissal may not be the appropriate course at the outset. 	See Benjamin O., 2007-
NMCA-070, ¶ 35 (noting that “automatic return of a child to his or her parent
following a reversal of an adjudication of abuse or neglect is [not] necessarily in the
child’s best interests, particularly where . . . the parent has not had actual custody of
[the c]hild for a number of years”). Instead, the district court may retain jurisdiction
over the case and proceed to determine how best to reunify the children with Father.
Toward that end, the district court and CYFD should put a transition plan in place.
See id. ¶ 38 (stating that because separation between the child and her father was
likely the result of the court’s erroneous adjudication of abuse or neglect, “the district
court and CYFD must actually put a transition plan in place in order to attempt to

27
return [the c]hild to [the f]ather”). 	The goal of the plan is the orderly transfer of
custody from CYFD to Father while keeping in mind the best interests of the children.
{45} 	In the transition plan, the district court may impose whatever limitations it
deems appropriate to ease the transition of the children back to Father’s custody.
§ 32A-4-25.1(G)(2). However, continuation of the treatment plan would not be an
option in light of the fact that Father substantially complied with his treatment plan.
In addition, the statute contemplates a transition of no more than six months, and this
appears to us to be a reasonable time for paving the way for reunification. But we
recognize that this is not the precise situation contemplated in Section 32A-4-25.1(G)
and that there may be circumstances of which we are not aware that would make a six-
month transition inadvisable for the children. We leave the length of the transition
period to the district court’s assessment of what would be reasonable under the
circumstances.
{46} 	The transition plan may identify methods and resources CYFD can utilize to
assist Father and the children in reestablishing a bond. We expect CYFD and Father
to cooperate in the creation and implementation of the plan in good faith. If, on the
other hand, CYFD becomes aware of extraordinary circumstances counseling against
reunification of Father with the children, CYFD may file a motion seeking to retain

28
custody of the children.
{47} 	The Court in In re Adoption of J.J.B. explained what constitutes extraordinary
circumstances and developed a process for determining whether extraordinary
circumstances warrant depriving a parent of custody. 119 N.M. 638, 651-54, 894 P.2d
994, 1007-10 (1995). 	First, if the non-parent party (here, CYFD) establishes that
extraordinary circumstances exist, the presumption favoring custody in the natural
parent is rebutted. 	Id. at 652, 894 P.2d at 1008. 	Examples of extraordinary
circumstances are laid out in In re Adoption of J.J.B. and include significant alteration
of the parent’s fitness evidenced by “gross misconduct such as incapacity, moral
delinquency, instability of character, or inability to provide [the children] needed
care.” Id. at 654, 894 P.2d at 1010. If CYFD establishes such misconduct by clear
and convincing evidence, then it should retain custody. But even Father is deemed fit,
“the court should determine whether, taking into account all factors, [Father] is
capable of reestablishing a healthy parent-child bond with [the children]. If, despite
the development of a psychological parent-child relationship between the [foster]
parents and the child[ren], a psychological parent-child relationship can be restored
between [Father] and the child[ren], then granting custody to [Father] is in the best
interests of the child[ren].” 	Id. 	By the same token, if CYFD can establish by clear

29
and convincing evidence that a parent-child relationship cannot be restored, then
custody should remain in CYFD.
{48} 	If CYFD does not challenge the return of custody to Father or if CYFD raises
such a challenge but fails to prove extraordinary circumstances by clear and
convincing evidence, then implementation of the transition plan and the ultimate
reunification of Father and children should continue.
{49} 	We encourage the district court to make use of mediation in determining the
details of the transition plan and to assist in the plan’s implementation. While it is
clear that the parties in this case differ as to the resolution of issues, we believe that
they all want to do what is best for the children. With this in mind, mediation may be
a viable option. The district court may want to explore this possibility. Additionally,
the Court of Appeals has a mediation program, and the parties may want to take
advantage of this service.
2. 	The Orders Related to Emily
{50} 	Father also challenges the trial court’s order requiring him to submit to a
paternity test with respect to Emily and, following a determination that Emily is not
Father’s biological child, the order denying his request for continued contact with
Emily. For the following reasons, we affirm these orders.

30
a. 	Jurisdiction
{51} 	As an initial matter, we address CYFD’s argument that we do not have
jurisdiction because Father did not timely file notices of appeal from the order
requiring the paternity test and the order denying contact with Emily. 	We do not
agree. 	A timely notice of appeal is not jurisdictional; rather, it is a mandatory
precondition to the exercise of appellate jurisdiction. Govich v. N. Am. Sys., Inc., 112
N.M. 226, 230, 814 P.2d 94, 98 (1991). In addition, it is well settled that failure to
timely file a notice of appeal from either an adjudication of abuse or neglect or an
order terminating parental rights constitutes ineffective assistance of counsel per se,
such that the merits of an appeal will be considered notwithstanding the procedural
deficiency. 	See State ex rel. Children, Youth & Families Dep’t v. Amanda M.,
2006-NMCA-133, ¶ 22, 140 N.M. 578, 144 P.3d 137 (holding that where notice of
appeal from an adjudication of abuse and neglect is filed late, this Court will presume
that counsel was ineffective and accept jurisdiction over the appeal); State ex rel.
Children, Youth, & Families Dep’t v. Lorena R., 1999-NMCA-035, ¶ 10, 126 N.M.
670, 974 P.2d 164 (extending the conclusive presumption of ineffective assistance of
counsel to TPR cases in which notice of appeal is untimely filed). 	Although
constitutional interests are not at stake with respect to the trial court’s orders related

31
to Emily, who is not Father’s biological child, we elect to exercise our discretion to
consider Father’s issues on their merits. See Govich, 112 N.M. at 230, 814 P.2d at 98
(explaining that an appellate court has discretion to hear an appeal if a party has failed
to comply with mandatory rules governing the time for filing a notice of appeal).
b. 	Order Requiring Paternity Test
{52} 	Early in the proceedings, CYFD suggested that there be a paternity test to
determine whether Father is Emily’s biological father, apparently because Father had
indicated on at least two prior occasions that there was some doubt on the matter.
Father objected on the grounds that he is presumed to be Emily’s father under the laws
of paternity and that the alternative would leave Emily with no father. The trial court
noted that vacillation can be harmful to children and ordered the test, which
established that Emily’s biological father was Rex Smith, who later relinquished his
parental rights to Emily.
{53} 	On appeal, Father argues that in ordering the test, the trial court improperly
applied the factors set out in Tedford, 1998-NMCA-067, ¶¶ 14-15. We do not agree.
Despite Father’s initial objection to the paternity test, the only pleading in the record
that reflects the trial court’s order on the matter recites that the parties stipulated to the
paternity test. Father therefore waived his objection to the test. See Salas v. Mountain

32
States Mut. Cas. Co., 2007-NMCA-161, ¶ 26, 143 N.M. 113, 173 P.3d 35 (explaining
that “waiver is the intentional relinquishment or abandonment of a known right”
(internal quotation marks and citation omitted)), cert. granted, 2007-NMCERT-012,
143 N.M. 213, 175 P.3d 307.
c. 	Order Denying Contact With Emily
{54} 	When DNA testing established that Emily is not Father’s biological child,
Father filed a motion seeking continued visitation with Emily. Following a hearing,
the trial court determined that Father does not have a liberty interest in Emily but that
he would be allowed to prove that it would be in Emily’s best interest to have a
relationship with him. The trial court then conducted thirteen evidentiary hearings on
Father’s motion to maintain contact with Emily. The parties filed requested findings
of fact and conclusions of law, and the trial court entered its own findings and
conclusions, in which it determined that Father had failed to establish that it was in
Emily’s best interest to maintain contact with him. 	We review the trial court’s
determination for abuse of discretion. See NMSA 1978, § 32A-4-22(E) (2005) (“The
court may order reasonable visitation between a child placed in the custody of
[CYFD] and . . . any other person who may significantly affect the child’s best
interest, if the court finds the visitation to be in the child’s best interest.”).

33
{55} 	On appeal, Father does not challenge the trial court’s determination that he has
no liberty interest in a relationship with Emily. Instead, Father argues that the trial
court improperly imposed the burden of proof on Father and failed to give enough
weight to the favored status the law bestows on non-parents who have a custodial or
other “family-like” relationship with a child.
{56} 	We first observe that Father has not challenged any of the trial court’s findings
of fact and conclusions of law supporting the denial of his motion for contact with
Emily. 	He has therefore waived any claim that the trial court’s findings are not
supported by substantial evidence. See Rule 12-213(A)(4) NMRA (stating that “[a]
contention that a verdict, judgment or finding of fact is not supported by substantial
evidence shall be deemed waived unless the argument identifies with particularity the
fact or facts that are not supported by substantial evidence”). We therefore turn to the
arguments Father has made.
Imposition of Burden of Proof
{57} 	The parties apparently agreed that the factors set out in Tedford regarding
assessment of the best interests of the child would govern the trial court’s
determination of whether Father could maintain contact with Emily. Father contends
that Tedford says nothing about who has the burden of proof and, therefore, it was

34
improper for the trial court to impose the burden on Father.
{58} 	Tedford was a paternity case in which an adult filed an action against her
putative father seeking a determination of paternity and recovery of retroactive child
support. 1998-NMCA-067, ¶¶ 1, 9. The putative father argued that the trial court
should have considered the best interests of the petitioner before ordering a paternity
test, relying on a Washington case that set out factors to consider, including “‘the
stability of the present home environment, the existence or lack thereof of an ongoing
family unit, the extent to which uncertainty of parentage already exists in the child’s
mind, and any other factors which may be relevant in assessing the potential benefit
or detriment to the child.’” Id. ¶ 14 (quoting McDaniels v. Carlson, 738 P.2d 254, 262
(Wash. 1987) (en banc)). 	This Court in Tedford concluded that a best-interests
assessment was unnecessary because the petitioner was an adult and had brought the
paternity action herself, and it observed that such an assessment “is applicable in a
paternity or retroactive child support action only when the child involved in such
proceeding is a minor and has developed a close emotional attachment to the
presumed parents.” 1998-NMCA-067, ¶¶ 16-17. Consequently, Tedford did not have
to consider who would bear the burden of proof in a best-interests assessment. As a
result, the absence of a discussion regarding the burden of proof does not persuade us

35
that Father should not have had the burden in the present case.
{59} 	We conclude that Father bore the burden because he filed the motion for
contact. Grandparents seeking visitation have the burden of proving that visitation is
appropriate, Senaida C., 2008-NMCA-007, ¶ 20, and it makes sense that any other
interested person seeking visitation with a child should be required to do the same.
Deference to Father’s Closeness to Emily
{60} 	Father next argues that the trial court should have given consideration to his
status as Emily’s custodian, which he contends conferred on him a “favored right to
placement and visitation.” 	He relies on broad concepts of the notion of “family”
found in New Mexico and United States Supreme Court case law and on certain
provisions of the Abuse and Neglect Act.
{61} 	We rejected both of Father’s arguments in Senaida C. In that case we observed
that the Abuse and Neglect Act does not confer a right to visitation on anyone.
Senaida C., 2008-NMCA-007, ¶¶ 12-13. To the contrary, the Act states that “[t]he
court may order reasonable visitation between a child placed in the custody of [CYFD]
and . . . any other person who may significantly affect the child’s best interest, if the
court finds the visitation to be in the child’s best interest.” § 32A-4-22(E) (emphasis
added). The trial court here did not find visitation with Father to be in Emily’s best

36
interest.
{62} 	Also in Senaida C. we rejected the argument that a grandparent is afforded
greater rights due to the United States Supreme Court’s recognition of a broadly
defined notion of “family” in Moore v. City of East Cleveland, 431 U.S. 494, 504-05
(1977). Senaida C., 2008-NMCA-007, ¶ 17. Father also relies on Moore and on New
Mexico cases that appear to acknowledge a similarly broad concept of family. 	See
Hill v. Cmty. of Damien of Molokai, 1996-NMSC-008, ¶¶ 7, 19, 21, 121 N.M. 353,
911 P.2d 861 (interpreting expansively the term “family” in a restrictive covenant
precluding use of property “for any purpose other than single family residence
purposes” and concluding that group home for people with AIDS did not violate the
covenant); In re Doe, 100 N.M. 92, 95, 666 P.2d 771, 774 (1983) (opinion on cert.)
(observing that “family” has many definitions). Father contends that his long, close
relationship with Emily should give him rights under the Abuse and Neglect Act
similar to the rights afforded biological parents.
{63} 	We fully appreciate that a family can comprise persons who are not related by
blood. Nonetheless, an expanded notion of family does not create rights that are not
otherwise recognized by law. Under the Abuse and Neglect Act, the trial court had
the discretion but was not required to order continued visitation between Father and

37
Emily, and the court gave Father the opportunity to persuade it that visitation was in
Emily’s best interest. Father was unable to convince the trial court, and we cannot say
that the trial court’s decision was an abuse of discretion.
CONCLUSION
{64} 	For the foregoing reasons, we reverse the judgment terminating Father’s
parental rights to Ariel and Zachary and remand for a determination of who should
have custody of the children. We affirm the trial court’s orders requiring the paternity
test and denying Father continued visitation with Emily.
{65} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Chief Judge
WE CONCUR:
CELIA FOY CASTILLO, Judge
MICHAEL E. VIGIL, Judge