July 22, 2019- Children, Youth & Families Department v. Justin T., No. A-1-CA-37403

1 	IN THE COURT OF APPEALS OF THE ST ATE 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-37403
7 JUSTIN T.,
8 	Re spondent-Appellant,
9 IN THE MATTER OF TIRZAH T.,
10 	Child.
11 	APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
12 John J. Romero, Jr., District Judge
13 	Children, Youth & Families Department
14 Rebecca J. Liggett, Chief Children' s Court Attorney
15 	Santa Fe , NM
16 Kelly P. O 'Neill, Children 's Court Attorney
17 Albuquerque, NM
18 	for Appellee
19 	Law Offices of Nancy L. Simmons, P.C.
20 Nancy L. Simmons
21 	Albuquerque, NM
22 	for Appellant
Court of Appeals of New Mexico
Filed 7/22/2019 11:11 AM

1 Peter G. Tasso Law Firm, P.C.
2 Peter G. Tasso
3 Albuquerque, NM
4 Guardian Ad Litem
5 	MEMORANDUM OPINION
6 	MEDINA, Judge.
7 {I} 	The district court found that Justin T. (Father) neglected and abused six-
8 month-old Tirzah T. (Child) and terminated Father's parental rights. On appeal,
9 Father argues that the basis for the adjudication of abuse and neglect and termination
10 	of parental 	rights 	is 	legally 	insufficient. 	Because 	we 	agree, 	we 	vacate 	the
11 	adjudication of abuse and neglect and termination of parental rights.
12 	BACKGROUND
13 	Events Preceding Adjudication Hearing
14 {2} 	Testimony given during the adjudication hearing yielded the facts recited
15 	below, and the district court made its findings and conclusions based thereupon.
16 Father claims that inadequate evidence supports the district court ' s findings, and the
17 parties do not dispute the facts.
18 	{3} 	On June 3, 2016, the New Mexico Children, Youth and Families Department
19 (CYFD) received an emergency call from the Albuquerque Police Department
20 	regarding Child, Father, and Sarah Johnson (Mother). Upon arriving at the family ' s
21 	apartment, the CYFD investigator discovered that Mother had been taken into
2

1 custody on a probation violation for having marijuana and pills in the apartment.
2 Father was present at the apartment and informed the investigator that he was Child's
3 primary caretaker and that Mother had been released from jail two days prior. Father
4 also informed the investigator that he knew Mother was smoking marijuana and
5 admitted to using marijuana himself but expressed that he did not have any concern
6 about using marijuana while caring for Child.
7 	{4} 	Based on the information received from Father and concerns regarding his
8 substance use while caring for Child, the investigator suggested that Child live with
9 a relative as a safety monitor while Father participated in services. Father agreed to
10 placement of Child with Father's sister (Aunt). Father was referred by CYFD for
11 	substance abuse and mental health assessments as well as to parenting classes.
12 	CYFD also permitted Father to see Child at any time as long as Aunt supervised the
13 	visits.
14 	{5} 	On June 	11 , 2016, another CYFD investigator assigned to Child' s case
15 	attended 	a 	family-centered 	meeting 	with 	Father, Aunt, and 	the 	investigator's
16 	supervisor, during which they discussed: ( 1) Father's substance use; (2) the needs of
17 the family; (3) Father' s lack of employment, (4) the possibility of placing Child in
18 	day care to enable Father to seek employment; and (5) a safety plan for Child. During
19 the meeting, Aunt informed Father and CYFD that she was willing to act as Child' s
20 	safety monitor for up to a year provided that Father participate in services designed
3

1 to address his issues, including a mental health evaluation, counseling, assessments,
2 and drug testing. At the conclusion of the meeting, Father agreed that Child would
3 remain with 	Aunt while 	he 	sought to 	engage in services. 	A 	safety plan was
4 	implemented which required that: ( 1) neither parent would be permitted to have
5 unsupervised visitation with Child; and (2) Father would participate in the services
6 as CYFD requested, including a substance abuse assessment and counseling, mental
7 health counseling, and a referral for child early intervention.
8 	{6} 	Shortly after taking on Child's care, Aunt attempted to enroll Child in day
9 care, at which point she discovered that Child, then seven months old, had not been
10 	immunized and had not seen a doctor since leaving the hospital after her premature
11 	birth. Aunt brought Child up to date on her immunizations and also obtained an
12 	ass~ssment- 	through the UNM FOCUS program- 	of Child ' s physical and mental
13 	development. UNM FOCUS services were recommended in part because Child was
14 exposed to drugs prenatally. No evidence revealing the results of the assessment
15 	conducted by the UNM FOCUS program was presented at the adjudication hearing.
16 {7} 	Child remained with Aunt for approximately six weeks, during which time
17 	Father visited her three times. Father attempted to visit Child on two other occasions
18 	but was unable to do so because of unforeseen impediments. While Child was in
19 	Aunt ' s care, Father provided to Aunt: two cans of formula, one box of cereal, one
20 box of snacks, one package of diapers, one bottle, a couple of receiving blankets, a
4

1 pacifier, teething ring, and a stroller. During this time period, Father did not provide
2 financial assistance for Child nor did he participate in any of the services to which
3 he had been referred by CYFD, including substance abuse and mental health
4 assessments or parenting classes. In late June 2016, Aunt informed CYFD that she
5 could no longer act as Child's safety monitor. CYFD contacted Father to inform him
6 that Aunt was no longer able to care for Child, and that Child would be placed in
7 foster care unless he participated in the recommended services. Father reacted by
8 yelling 	at 	the 	CYFD 	investigator 	and 	accusing 	her 	of lying 	and 	ended 	the
9 conversation abruptly by hanging up the phone.
10 	{8} 	On July 18 , 2016, CYFD filed an abuse and neglect petition (Petition) in the
11 	district court, alleging that Child had been abused and neglected by Father and
12 	Mother. With specific regard to Father, the Petition alleged that Child was abused or
13 	neglected by Father pursuant to NMSA 1978, Section 32A-4-2(B)(l), (B)(4), and
14 (F)(2) 1 (2016, amended 2018). On July 11, 2016, CYFD took custody of Child.
15 	CYFD did not return Child to Father, citing his continued substance use, lack of
16 participation in services, and lack of communication with CYFD and Aunt.
1 Now codified at NMSA 1978, Section 32A-4-2(G)(2) (2018). Citations to
Section 32A-4-2 in this opinion are to the 2016 version, which was in effect when
the Petition was filed.
5

1 Adjudication Hearing
2 	{9} 	The hearing on the Petition took place on September 15, 2016 and November
3 4, 2016, during which testimony was heard from two CYFD investigators, Aunt, and
4 Father. At the hearing, the district court accepted Mother's plea of "no contest" to
5 the allegations in the Petition. Father contested the allegations made in the Petition.
6 No 	medical 	or psychological 	testimony 	regarding 	Child's 	mental 	or physical
7 development, health, or the impact of Father's actions or inaction on the same was
8 presented at the hearing.
9 	{IO} 	At the conclusion of the adjudication hearing, the district court made oral
10 	findings, including that the evidence was not clear and convincing that Child was
11 	abused pursuant to Section 32A-4-2(B)(l). However, under Section 32A-4-2(B)(4),
12 	the court stated that there was clear and convincing evidence that Father knowingly,
13 	intentionally, or negligently placed Child in a situation that could endanger her life
14 or health based on his failure to inoculate Child, which prevented Child from being
15 	enrolled in day care. The court also stated that the purpose of a day care's inoculation
16 requirement is to ensure not only Child's health but also the health of those who are
17 	around Child.
18 	{11} 	As to Section 32A-4-2(F)(2), the district court found that Child was without
19 proper care and control necessary for her well-being because of Father's failure to
20 provide care and control. Specifically, the district court stated that based on: ( 1)
6

1 evidence that, 	both while the safety plan was in place and before, there was
2 	inadequate proper parental care and control as there were "substances" in the home;
3 (2) Father' s denial that the use of marijuana was detrimental to Child based on his
4 	belief that it did not impair his ability to parent; and (3) evidence that Child had not
5 received immunizations, especially since Child was born premature.
6 	{ 12} 	On November 21, 2016, the district court entered its written judgment and
7 disposition as to Father, specifically finding that his "admitted marijuana use, his
8 failure to have [C]hild immunized, and failure to participate in [i]n-[h Jome services,
9 has negatively impacted his ability to ensure [C]hild's safety and well-being." Father
10 	did not appeal the adjudication judgment.
11 	Termination of Parental Rights Trial
12 {13} 	CYFD subsequently moved to terminate Father' s parental rights, and the
13 	district court held a termination of parental rights (TPR) trial. CYFD moved the
14 district court to take judicial notice of Mother' s no-contest plea to the allegations in
15 	the Petition and of Father' s abuse and neglect adjudication. Father did not object,
16 and the district court tookjudicial notice of Mother' s and Father' s abuse and neglect
17 	adjudications.
18 	{14} 	The court heard testimony regarding Father' s post-adjudication efforts to
19 work with CYFD toward reunification with Child. With the aid of a permanency
'
20 planning worker, Father was referred to New Awakenings for initial assessments
7

I 	outlined in the treatment plan, including substance abuse, mental health, parenting,
2 and domestic violence. The permanency planning worker also provided Father with
3 a bus pass, offered him a "feed box letter," clothing, encouragement to consider
4 vocational training through Work Force Solutions, and a Bernalillo County housing
5 application packet along with assistance in filling out the required forms to obtain
6 housing.
7 {15} 	While Father successfully completed initial assessments at New Awakenings,
8 he failed to comply with recommended out-patient substance abuse treatment and
9 individual therapy. Additionally, the testimony revealed that Father missed some,
10 	but not all, appointments with CYFD, did not submit to urine analysis as required,
11 	and missed some but not all therapy appointments. Between August 2016 and
12 	September 2017, CYFD discussed Child's need for permanent housing with Father
13 	on multiple occasions, but he repeatedly dismissed the issue. Father also continued
14 	to deny that his use of marijuana was a problem in need of treatment. Beginning in
15 	December 2017, Father 's communication with CYFD further deteriorated. During
16 this time Father missed several more office visits and therapy appointments, often
17 	without calling. Around this time, Father provided a new permanency planning
18 	worker with three contact numbers at a transition meeting, but the worker was often
19 unable to reach Father with any of the numbers.
8

1 {16} 	At the end of the termination hearing, the district court addressed the statutory
2 requirements for termination of parental rights under NMSA 1978, Section 32A-4-
3 28(B)(2) (2005), including a finding that Child is an abused or neglected child as
4 defined in the Abuse and Neglect Act. With regard to this requirement, the district
5 court referenced its judicial notice of Father' s abuse and neglect adjudication stating,
6 "The first question is, has [C]hild been abused and neglected, is [C]hild abused and
7 neglected, the answer is yes based on the adjudication and the trial and the findings
8 on November 4[,] 2016." The district court also found that the other requirements
9 for termination under Section 32A-4-28(B)(2) were met.
10 	{17} 	On March 23 , 2018, the district court issued written findings and conclusions
11 	in 	its judgment terminating 	Father' s parental 	rights. 	The 	court' s 	finding 	and
12 	conclusion as to neglect was again based only on Father's prior adjudication.
13 	Specifically the district court found:
14
15
16
17
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19
20
21
22
23
24
25
26
On November 4, 2016, [Father] was found, by clear and convincing
evidence, to have abused and neglected ... [C]hild pursuant to the
allegations of the Petition and pursuant to ... [Section] 32A-4-2(B)(4)
and 	(F)(2) 	(now 	G2) 	in 	that 	. 	. 	. 	[C]hild ' s 	parent 	knowingly,
intentionally or negligently placed ... [C]hild in a situation that may
endanger ... [C]hild' s life or health, and that ... [C]hild was without
proper parental care and control or subsistence, education, medical or
other care or control necessary for .. . [C]hild's well-being because of
the failure or refusal of [Father] to provide same when able to do so.
Specifically, [Father's] admitted marijuana use, his failure to have ...
[C]hild immunized, and failure to participate in [i]n-[h]ome [s]ervices,
had negatively impacted his ability to ensure ... [C]hild' s safety and
well-being.
9

1 {18} 	This appeal followed.
2 	DISCUSSION
3 	{19} 	On appeal, Father challenges: (1) whether, as a matter of law, the district
4 	court's findings in the adjudication hearings support an adjudication of abuse or
5 neglect; (2) whether Father's failure to comply with the treatment plan supports a
6 termination of parental rights; and (3) whether additional support from CYFD would
7 have allowed him to ameliorate the underlying causes and conditions of neglect.
8 	{20} 	The State contends: ( 1) Father did not properly preserve his arguments for
9 appeal; (2) Father's failure to appeal the abuse and neglect adjudicatory judgment
10 prohibits him from doing so after the TPR hearing; (3) the adjudication of neglect
11 	was not based solely on Father's marijuana use; (4) the district court properly relied
12 on Father's failure to comply with the treatment plan; and (5) substantial evidence
13 	supports the finding that CYFD made reasonable efforts to assist Father.
14 Standard of Review
15 	{21} 	In both abuse and neglect adjudications and parental rights terminations the
16 	standard of proof required is clear and convincing evidence. See NMSA 	1978,
17 	§ 32A-4-29(I) (2009); State ex rel. Children, Youth & Families Dep 't v. Lance K.,
18 	2009-NMCA-054, ,r 16, 146 N.M. 286,209 P.3d 778. Clear and convincing evidence
19 	is evidence "that instantly tilts the scales in the affirmative when weighed against
20 	the evidence in opposition and the fact 	finder's 	mind is 	left with an abiding
10

1 conviction that the evidence is true." State ex re l. Children, Youth & Families Dep 't
2 	v. Keon H., 2018-NMSC-033 , ,i 37, 421 P.3d 814 (internal quotation marks and
3 citation omitted).
4 	{22} 	" In order to [evaluate] claims of evidentiary sufficiency, we must determine
5 whether the district court' s decision is supported by substantial evidence of a clear
6 and convincing nature. " State ex re l. Children, Youth & Families Dep 't v. Alfonso
7 M.-E. , 2016-NMCA-021 , ,i 26, 366 P.3d 282; see id. 	("Substantial evidence is
8 relevant evidence that a reasonable mind would accept as adequate to support a
9 conclusion." (internal quotation marks and citation omitted)); State v. Laguna, 1999-
10 NMCA-152 , ,i 7, 128 N.M. 345, 992 P.2d 896 (same). "On appeal, [this Court will]
11 	not reweigh the evidence or substitute our judgment for that of the trial court on
12 factual matters or on matters of credibility." State ex rel. Children, Youth & Families
13 	Dep 't v. William M , 2007-NMCA-055 , ii 59, 141 N.M. 765 , 161 P.3d 262. "We will
14 uphold the district court' s judgment if, viewing the evidence in the light most
15 	favorable to the judgment , a fact finder could properly determine that the clear and
16 convincing standard was met." St at e ex re l. Children, Youth & Families Dep 't v.
17 Hector C. , 2008-NMCA-079, ,i 11 , 144 N.M. 222, 185 P.3d 1072 (internal quotation
18 	marks and citation omitted).
11

1 An Adjudicatory Judgment May Be Appealed After Judgment Is Rendered in
2 Termination of Parental Rights Proceedings
3 	{23} 	We first address whether Father' s appeal of the adjudication of abuse and
4 neglect is untimely. "A party aggrieved by an order entered [finding that the child is
5 abused or neglected] may file an immediate appeal to the court of appeals." NMSA
6 	1978, § 32A-4-20(I) (2014); State ex re l. Children, Youth & Families Dep 't v. Frank
7 	G. , 2005-NMCA-026, il 41 , 137 N.M. 137, 108 P.3d 543 (stating that a judgment
8 that a child is abused or neglected is a "final , appealable order"). " [J]udgment ... on
9 petitions alleging abuse or neglect ... shall be governed by the Rules of Appellate
10 	Procedure," Rule 10-352(B) NMRA, under which "[a] notice of appeal shall be filed
11 	... within thirty (30) days after the judgment or order appealed from is filed," Rule
12 	12-20l(A)(l)(b) NMRA.
13 	{24} 	Child was adjudicated as an abused and neglected child as to Father on
14 November 	21 , 2016. On 	March 	23 , 2018, the 	district 	court 	issued judgment
15 	terminating Father's parental rights. Between these dates, Father did not appeal the
16 adjudication of abuse and neglect. After the termination of parental rights judgment
17 	was entered, Father filed a notice of appeal seeking review of, among other things,
18 	the district court's findings in the adjudication hearings, which he argues do not
19 	support an adjudication of neglect as a matter of law.
12

1 {25} 	We conclude that Father' s arguments are properly before this Court for two
2 reasons. First, "where a notice of appeal from an adjudication of abuse and neglect
3 is 	filed 	late, this Court will presume that counsel was ineffective and accept
4 jurisdiction over the appeal." Sta te ex rel. 	Children, Youth 	& Families Dep 't v.
5 Amanda M. , 2006-NMCA-133 , ,r 22, 140 N.M. 578, 144 P.3d 137. Our holding in
6 Amanda M. rested on our earlier opinion in State v. Duran, in which we held that,
7 "failure to file a timely notice of appeal or an affidavit of waiver constitutes
8 ineffective assistance of counsel per se, and the presumption thereof is conclusive."
9 	1986-NMCA-125, ,r 10 , 105 N.M. 231, 731 P.2d 374. Several years later, we applied
10 the Duran presumption of ineffective counsel and reviewed an untimely appeal
11 	"after four years of inaction by [the d]efendant," explaining that "[t]he first and
12 	foremost reason that the passage of time alone does not prevent application of the
13 	Duran presumption is based on the fundamental premise of that case: that the rights
14 	implicated by the presumption- 	the right to appeal and the right to effective
15 	assistance of counsel- 	protect a defendant's fundamental liberty interest in a fair
16 trial." State v. Dorais, 2016-NMCA-049, ,r,r 7-8, 370 P.3d 771. In Amanda M. , we
17 	recognized that adjudicatory proceedings also implicate those rights. See 2006-
18 	NMCA-133 , ,r 20 (holding that parents have a right to counsel in adjudication
19 proceedings). 	We 	have 	never 	limited 	application 	of 	the 	presumption 	of
20 	ineffectiveness to 	a certain time period. Indeed, the "interest 	[in adjudicatory
13

1 proceedings] is no less significant after the deadline for appeal than it was before the
2 deadline, nor does it diminish over time." Dorais, 2016-NMCA-049, ,r 8.
3 	{26} 	Here, Father's notice of appeal was filed five hundred and eighteen days after
4 judgment was entered in the abuse and neglect adjudication proceedings. Although
5 a significant amount of time had passed between the adjudication and Father' s
6 appeal, we 	apply the 	reasoning 	and presumption 	in Dorias 	and 	Amanda M.,
7 respectively, and address Father' s arguments regarding the adjudication of neglect.
8 	{27} 	Second, although CYFD argues that the law-of-the-case doctrine should apply
9 to foreclose review of the district court' s finding of neglect at the TPR hearing,
10 	application of the doctrine is "discretionary and flexible [and] will not be used to
11 	uphold a clearly incorrect decision[.]" Trujillo v. City ofAlbuquerqu e, 1998-NMSC-
12 	031 , ,r 41 , 125 N.M. 721 , 965 P.2d 305. The doctrine "considers the justness of
13 	applying a particular rule to the parties." Id. ,r 42. In light of the of the fundamental
14 	liberty interests at issue in both adjudication and TPR proceedings, and given our
15 	conclusion that the adjudication may be appealed as part of an appeal of a TPR, we
16 decline to apply the law-of-the-case doctrine.
17 	Evidence at the Adjudication Hearing Did Not Support a Finding of Neglect
18 	{28} 	Father argues that the allegations against him did not support an adjudication
19 	of abuse and neglect as a matter of law. The district court identified three specific
20 	issues in support of its adjudication as to Father: (1) [Father]'s admitted marijuana
14

1 use; (2) his failure to have Child immunized; and (3) his failure to participate in in-
2 	home services. Father focuses his arguments on the first two issues identified by the
3 court. 	Particularly, 	Father argues that 	marijuana usage 	alone cannot constitute
4 	neglect and cites to numerous cases intended to support his contention. Father also
5 argues that failure to immunize a child has never been sufficient as the sole basis for
6 a finding of neglect. In response, CYFD argues that the cases cited by Father are
7 distinguishable and that the failure to immunize Child-while not dispositive of
8 neglect-was symptomatic of a larger issue. For the reasons we explain below, we
9 	hold that the evidence at the adjudication hearing was insufficient to support an
10 	adjudication of neglect.
11 	{29} 	In their hearing testimony, CYFD officials described Father's persistent use
12 	of marijuana and failed efforts to comply with the treatment plan. Additionally, Aunt
13 	testified that Child had not been seen by a doctor since her premature birth and that
14 Child lacked immunizations.
15 	{30} 	Conspicuously absent from the record is any evidence showing that Father's
16 marijuana 	use 	harmed 	Child 	or 	caused 	Father to 	intentionally 	or 	negligently
17 	disregard Child's well-being and proper needs. State ex rel. 	Children, 	Youth 	&
18 Families Dep't v. Michelle B., 2001-NMCA-071, 117, 130 N.M. 781, 32 P.3d 790
19 (requiring clear and convincing evidence of parent's "culpability through intentional
20 	or 	negligent 	disregard 	of 	[Child's] 	well-being 	and 	proper 	needs"). 	Father's
15

1 marijuana use, standing alone, is insufficient. "An unfavorable personal status, such
2 as low IQ, poverty, mental illness, incarceration, prior convictions, or addiction, is
3 	... relevant only to the extent that it prompts ... the neglect which is defined as the
4 failure to provide proper parental care and control or an inability to discharge his
5 responsibilities to and for the child." State ex re l. Children, Youth & Families Dep 't
6 v. Shawna C. , 2005-NMCA-066, ,r 30, 137 N.M. 687, 114 P.3d 367 (emphasis
7 added) (internal quotation marks and citation omitted). Shawna C. requires a causal
8 connection between the unfavorable personal status and the a ll eged neglect.
9 {31} 	CYFD acknowledges that an unfavorable personal status alone is insufficient
10 to establish neglect, but nonetheless argues a causal connection between Father' s
11 	marijuana use and the facts relevant to the district court' s finding. Specifically,
12 CYFD states that Child was born prematurely, she was never taken to a doctor after
13 	birth, and she required services by UNM FOCUS, but CYFD presented no evidence
14 to show a causal connection between these facts and Father' s marijuana use. The
15 	only evidence regarding Child's actual condition was Aunt's testimony that Child
16 participated in an assessment by UNM FOCUS to evaluate whether Child was
17 developmentally or cognitively behind. This evidence falls short of showing harm
18 	to Child because the record does not include the results of the assessment, evidence
19 revealing the nature of services UNM FOCUS provided to Child, or any causal
20 connection 	between 	the 	results 	and 	action 	or inaction 	by Father. 	That 	Child
16

1 continued services with UNM FOCUS does not substantiate more than a tenuous
2 inference of harm.
3 	{32} 	Consequently, the district court's finding 	is not supported by clear and
4 convincing evidence sufficient to satisfy the definition of neglect under Section 32A-
5 4-2(F)(2).
6 	{33} 	Nor did CYFD present any evidence that the lack of immunizations placed
7 Child "in a situation that may endanger [C]hild's life or health." Section 32A-4-
8 2(B)(4). In Shawna C., this Court held that, despite testimony from clinicians and
9 psychologist as well as evidence of a criminal history, the evidence of the father's
10 potential to be violent did not meet the clear and convincing standard. 2005-NMCA-
1 l 	066, ,i 22. Specifically, we stated that the evidence, "[ did] not support anything more
12 	than 	a vague 	inference 	of future 	harm 	[and 	s]uch 	an 	inference 	provides 	an
13 	insufficient basis for finding either neglect or abuse within the meaning of the
14 	statute." Id. In this case, no testimony was given regarding Child's likelihood of
15 	contracting preventable illness or whether Child had already suffered preventable
16 	harm due to the lack of immunization. Further, the district court's reasoning that the
17 	purpose of inoculation is also to protect the health of those around Child, has no
18 	bearing on whether Child was placed in a situation that may endanger her life or
19 	health. Similar to our holding in Shawna C., the fact that Child was not immunized
20 only creates a vague inference of future harm. Because the record does not reflect
17

1 any evidence to show actual or potential danger to Child's life or health due to lack
2 	of immunization, the court's finding of abuse under Section 32A-4-2(B)(4) is also
3 unsupported by clear and convincing evidence.
4 	{34} 	Because the district court's findings of abuse and neglect were unsupported
5 by clear and convincing evidence, we hold that the adjudication of abuse and neglect
6 as to Child is insufficient as a matter of law and should be vacated.
7 	The District Court's Finding of Neglect at the TPR Hearing Was Not Sufficient
8 for Termination of Parental Rights
9 	{35} 	"Terminating parental rights implicates rights of fundamental importance."
10 Hector C., 2008-NMCA-079, 1 11. "Before a court may terminate parental rights
11 	based on abuse or neglect, it must find by clear and convincing evidence: (1) that the
12 child was abused or neglected, (2) that the conditions and causes of the abuse and
13 	neglect were unlikely to change in the foreseeable future, and (3) that ... CYFD
14 made reasonable efforts to assist the parent in adjusting the conditions." State ex rel.
15 	Children, Youth &Families Dep 't v. Benjamin 0., 2007-NMCA-070, 130, 141 N.M.
16 692, 160 P.3d 601 (alterations, internal quotation marks, and citation omitted).
17 	{36} 	A prior adjudication of abuse and neglect is not a prerequisite to satisfying the
18 	first element of the termination statute. See State ex rel. Dep 't of Human Servs. v.
19 	Ousley, 1985-NMCA-035, 1 8, 102 N.M. 656, 699 P.2d 129 ("There is nothing in
20 	the termination statute which requires a prior [district] court adjudicative proceeding
21 	[based on the prior adjudication of neglect]."). Instead, the district court may make
18

1 findings of abuse or neglect even if there has not been a prior adjudication. Id.; see
2 	§ 32A-4-29(A) ("A motion to terminate parental rights may be filed at any stage of
3 the abuse or neglect proceeding by a party to the proceeding.").
4 	{37} 	However, if the district court relies solely on a prior adjudication of neglect to
5 meet the first element necessary for termination of parental rights, then the invalidity
6 of the prior adjudication requires reversal of the TPR. See State ex rel. Dep 't of
7 Human Servs. v. Perlman, 1981-NMCA-076, ,r 12, 96 N.M. 779, 635 P.2d 588 ("A
8 decree thereafter terminating [the mother] 's parental rights, based upon findings and
9 conclusions related to the void neglect decree, cannot stand.").
10 	{38} 	As discussed above, the district court's findings at the adjudication hearing
11 	lacked sufficient evidentiary support. Consequently, the invalidated adjudication
12 cannot satisfy the requisite finding of abuse or neglect under the termination statute.
13 	Still, a court, at a termination hearing, may find abuse and neglect independent of
14 the adjudication sufficient to satisfy the statutory requirements. However, here, the
15 	district court relied solely on the prior adjudication, stating that the required finding
16 	of neglect was satisfied by the prior adjudication of which the district court took
17 judicial notice. The district court never addressed whether evidence presented during
18 	the TPR hearing also substantiated a finding of abuse or neglect independent from
19 that found at the adjudication. Additionally, in its written findings, the district court
20 refers to the abuse and neglect adjudication on November 4, 2016, and recites the
19

1 written findings issued therein. No other written finding of abuse and neglect is
2 included in the March 23, 2016,judgment.
3 	{39} 	Although both parties address whether Father's compliance with the treatment
4 plan may have been used by the court to substantiate a finding of neglect at the
5 termination hearing, the record does not reflect that the district court relied on non-
6 compliance for this purpose. Because the district court apparently did not consider
7 Father's compliance or lack thereof, we do not address whether such evidence could
8 have satisfied the abuse or neglect element of the termination statute.
9 	{40} 	Without independent or additional findings of neglect by the district court, the
10 	first element of the termination statute was not satisfied. Because the termination
11 	fails on the first statutory element, we do not reach the parties' remaining arguments.
12 	CONCLUSION
13 	{41} 	Based on the foregoing we vacate the district court's adjudication of abuse
14 	and neglect and termination of parental rights as to Father.
15 	{42} 	IT IS SO ORDERED.
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17
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1 WE CONCUR:
21