September 12, 2019- CYFD v. Juan V., No. A-1-CA-37769

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
STATE OF NEW MEXICO ex rel. Court of Appeals of New Mexico
CHILDREN, YOUTH & FAMILIES Filed 9/12/2019 11:36 AM

DEPARTMENT, A. [> :
al
Mark Reynal

Petitioner-Appellee,

V. No. A-1-CA-37769

JUAN V.,
Respondent-Appellant,

IN THE MATTER OF BRIDGET V.,
and NORA V.,

Children.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Lee A. Kirksey, District Judge

Children, Youth & Families Department

Rebecca J. Liggett, Chief Children’s Court Attorney
Santa Fe, NM

Kelly P. O’Neill, Children’s Court Attorney
Albuquerque, NM

for Appellee
Law Offices of Nancy L. Simmons, P.C.
Nancy L. Simmons

Albuquerque, NM

for Appellant

1 Laura K. Castillo
2 Hobbs, NM
3 Guardian Ad Litem
4
5 VARGAS, Judge.
DECISION
6 	{1} 	Juan V. (Father) appeals the termination of his parental rights as to his two
7 children (Children), arguing the district court erred in finding the New Mexico
8 Children, Youth and Families Department (CYFD) made reasonable efforts to assist
9 Father in changing the causes and conditions that gave rise to the abuse and neglect
10 	of Children. We affirm.
11 	BACKGROUND
12 	{2} 	On March 24, 2017, CYFD took custody of two children- 	a two-year-old and
13 	one-month-old (Children). In its abuse and neglect petition, CYFD alleged Father
14 abused and neglected Children under NMSA 1978, Section 32A-4-2(B)(4), (F)(2)
15 	(2016, amended 2018). Following an adjudicatory hearing, the district court found
16 Children suffered physical, emotional, or psychological abuse "inflicted or caused
17 	by 	[Father], 	pursuant 	to 	Section 	32A-4-2(B)(2)[,]" 	that 	Father 	"knowingly,
18 	intentionally, or negligently placed [C]hildren in a situation that may endanger
19 	[their] li[ves] or health," and that Father was "unable to discharge his parental
20 	responsibilities to and for [Children] because of incarceration, hospitalization, or
2

1 other 	physical 	or 	mental 	disorder 	or 	incapacity, 	pursuant 	to 	Section 	32A-4-
2 2(F)(4)[.]" In particular, the district court found:
3 	[Father] yelled and cursed at [the oldest child,] causing her to scream
4 	and act out. [Father] left [C]hildren with [Mother,] knowing her history
5 	of overusing medications and [Mother] dropped [the oldest child] on
6 	her head. [Father] sleeps throughout the day due to his medications and
7 	his 	mental 	disorders 	do 	not 	allow 	him 	to 	appropriately 	care 	for
8 	[Children].
9 	{3} 	The district court ordered CYFD to 	implement a treatment plan, 	which
10 established a goal of reunifying Children with Father and included a concurrent plan
11 	of adoption. The treatment plan required Father to, in relevant part, participate in
12 psychological evaluations; visit with Children two times per week; participate in
13 	Children's 	development 	services; 	follow 	his 	doctor 's 	recommendations 	and
14 	maintain good physical health; maintain weekly contact with CYFD; participate in
15 	individual counseling to address his "personal issues," Mother's death, and his
16 aggressive 	behavior; 	participate 	in 	parenting 	classes; 	participate 	in 	anger
17 	management classes; and take random drug tests.
18 	{4} 	To address the causes and conditions of Children's abuse and neglect, CYFD
19 referred Father to Zia Consulting for psychological evaluations, to the Guidance
20 Center of Lea County for individual counseling to address his mental health issues,
21 	to Family Time Visitation Center for supervised visitation s, and to two facilities for
22 	drug testing. 	CYFD also provided Father with a monthly bus pass, individual
23 	transportation 	when 	needed, 	one-on-one 	parenting 	classes 	at 	home, 	and 	the
3

1 opportunity to have supervised visitations at CYFD offices. However, Father failed
2 to comply with his visitation obligations, was unable to demonstrate "appropriate
3 parenting skills," refused to use the bus pass, missed court hearings because he
4 	overslept, continuously demonstrated issues controlling his anger, never completed
5 the recommendations 	from his initial psychological evaluation, and refused to
6 participate in individual counseling and an updated psychological evaluation
7 	{5} 	Following a permanency hearing, the district court changed the concurrent
8 plan to a plan of adoption. On January 26, 2018, CYFD moved to terminate Father's
9 parental rights (TPR motion). In support of its TPR motion, CYFD explained that
10 	Father was "unable or unwilling to provide proper parental care or control for
11 	[Children]" and that while CYFD "provided or made available services and support
12 	designed to correct this inability or unwillingness, [Father] has either not utilized
13 	these services and support, or has been unable or unwilling to benefit sufficiently
14 	from them. " The district court held another permanency hearing, after which time it
15 	recognized CYFD's efforts towards the reunification of Children with Father, as well
16 as Father' s failure to comply with the treatment plan. Thereafter, the district court
17 found 	that a plan of adoption was "appropriate" and "in the best interests 	of
18 	[Children]."
19 	{6} 	Following a hearing on CYFD's TPR motion, the district court concluded
20 	CYFD had shown by clear and convincing evidence "that the conditions and causes
4

1 of the abuse and neglect against ... Children by Father are unlikely to change in the
2 	foreseeable future despite reasonable efforts by CYFD to assist Father in adjusting
3 the conditions which render Father unable to care for 	... Children properly."
4 	Accordingly, the district court ordered the termination of Father' s parental rights to
5 Children. Father appeals the district court' s judgment.
6 {7} 	Because this is a decision and the parties are familiar with the facts of this
7 case, we reserve further discussion of the pertinent facts to our discussion of Father's
8 arguments.
9 DISCUSSION
10 	{8} 	Father challenges the reasonableness of CYFD ' s efforts to assist him in
11 	remedying the conditions and causes his neglect and abuse as well as the amount of
12 time CYFD made those efforts before it moved to terminate his parental rights. We
13 	address each argument in turn.
14 	A. 	Standard of Review
15 	{9} 	NMSA 1978, Section 32A-4-28(B)(2) (2005), of the Abuse and Neglect Act
16 (ANA) provides that the district court shall terminate parental rights if:
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the child has been neglected or abused as defined in the [ANA] and the
court finds that the conditions and causes of the neglect and abuse are
unlikely to change in the foreseeable future despite reasonable efforts
by [CYFD] to assist the parent in adjusting the conditions that render
the parent unable to properly care for the child.
5

1 CYFD must demonstrate these elements by clear and convincing evidence. State ex
2 rel. Children, Youth & Families Dep't v. Nathan H, 2016-NMCA-043, ,r 31, 370
3 P.3d 782. "Clear and convincing evidence means evidence that instantly tilts the
4 scales in the affirmative when weighed against the evidence in opposition and the
5 fact finder's mind is left with an abiding conviction that the evidence is true." Id.
6 (internal quotation marks and citation omitted).
7 {IO} 	"Our standard of review is ... whether, viewing the evidence in the light most
8 favorable to [CYFD], the fact finder could properly determine that the clear and
9 convincing evidence standard was met." State ex rel. Children, Youth & Families
10 Dep 't v. Kean H, 2018-NMSC-033, ,r 38,421 P.3d 8 14 (internal quotation marks
11 	and citation omitted). "Our standard of review does not require us to determine
12 	whether the district court could have reached a different conclusion." Id. (alteration,
13 	internal quotation marks, and citation omitted). "F urthermore, [the appellate courts
14 are] not permitted to reweigh the evidence." Id. 	(internal quotation marks and
15 	citation omitted).
16 	B. 	Reasonable Efforts by CYFD
17 	{11} 	CYFD's "efforts should be directed to assist the parent in remedying the
18 	conditions and causes of neglect and abuse." Id. ,r 41. We consider "the totality of
19 	the circumstances when reviewing the district court's determination" that CYFD
20 	made reasonable efforts to assist the parent. Id. 	"Efforts to assist a parent may
6

1 include individual, group, and family counseling, substance abuse treatment, mental
2 health 	services, 	transportation, 	child care, 	and 	other therapeutic 	services." 	Id.
3 (internal quotation marks and citation omitted). "[W]hat constitutes reasonable
4 efforts may vary with a number 	of factors, 	such as 	the level 	of cooperation
5 demonstrated by the parent and the recalcitrance of the problems that render the
6 parent unable to provide adequate parenting." Id. 	(internal quotation marks and
7 citation omitted). "[O]ur job is not to determine whether CYFD did everything
8 possible; our task is limited by our statutory scope of review to whether CYFD
9 complied with the minimum required under law." State ex rel. Children, Youth &
10 Families Dep't v. Patricia H, 2002-NMCA-061, ,r 28, 132 N.M. 299, 47 P.3d 859.
11 	{12} 	To be sure, a parent may "impeach the reasonableness of efforts to enable him
12 or her to correct the underlying causes and conditions on the basis that those efforts
13 	were directed at the wrong causes and conditions or were insufficient because of
14 unique factors." State ex rel. Human Servs. Dep 't v. Penny J., 1994-NMCA-143,
15 	,r 20, 119 N.M. 328, 890 P.2d 389. Here, the district court found that Children's
16 abuse and neglect were caused by issues associated with Father's parenting skills,
17 	his medications, and his "mental disorders." CYFD's efforts- 	namely, providing
18 	parenting classes and supervised visitations, and referring Father for psychological
19 evaluations, individual counseling, and drug testing- 	were directed at these causes.
7

1 {13} 	Father, however, failed to fully engage with the services provided by CYFD.
2 Although he completed the parenting classes, he did not apply "the most important"
3 skills taught in the classes. Furthermore, although Father made some efforts to attend
4 the visitations despite having back pain and not owning a vehicle, he missed
5 approximately thirty percent of the visitations, some of which were missed for no
6 stated reason. While Father missed some visitations because of his "transportation
7 issues," CYFD provided him with a bus pass for a period of five months, gave him
8 personal rides when he needed them, and assisted him with a taxi service paid for by
9 CYFD. However, Father did not use and declined to renew his bus pass, and did not
10 usually give CYFD "reasonable notice" when he needed a ride for visitations.
11 	{14} 	In light of CYFD's efforts and Father's conduct, we conclude that substantial
12 evidence of a clear and convincing nature supported the district court's finding that
13 	CYFD made reasonable efforts to address the causes and conditions of abuse and
14 	neglect. 	See Keon H, 	2018-NMSC-033, ,r,r 38, 41 , 48 	(providing the clear and
15 	convincing standard and explaining that "what constitutes reasonable efforts may
16 	vary with a number of factors, such as the level of cooperation demonstrated by the
17 parent and the recalcitrance of the problems that render the parent unable to provide
18 	adequate parenting[,]" and that "[b ]oth [CYFD] and [the f]ather are responsible for
19 	making efforts toward reunification of the family" (internal quotation marks and
20 citation omitted)). Moreover, to the extent Father argues CYFD was required to
8

1 make more intensive efforts to address his substance abuse and mental health issues,
2 we again emphasize that "our job is not to determine whether CYFD did everything
3 possible; our task is limited by our statutory scope of review to whether CYFD
4 complied with the minimum required under law." Patricia H, 2002-NMCA-061,
5 ,r 28. We conclude that it did.
6 {15} 	Further, Father argues the district court erred in considering "stereotyped
7 values" concerning his substance abuse. He argues "the stereotyped values blamed
8 Father for his circumstances, either substantially ignoring Father's addiction- 	at
9 least in terms of real assistance- 	or blaming him for it." Although we do not review
10 unclear or undeveloped arguments, see State ex rel. Children, Youth & Families
11 	Dep 't 	v. 	Marsalee P., 	2013-NMCA-062, 	,r 20, 	302 	P.3d 761, 	we nonetheless
12 conclude Father's argument is unavailing on its merits. Children's abuse and neglect
13 	was attributable, at least in part, to Father's use of medications, which rendered him
14 unavailable to care for Children during the day. To address this cause of Children's
15 	abuse and neglect, CYFD monitored Father's medication intake by requiring drug
16 tests and referred him for psychological evaluation.
17 	{16} 	Father also argues that the evaluation of his parenting skills were the subject
18 	of stereotyped value s. To address this cause of Children's abuse and neglect, CYFD
19 provided 	Father 	with 	one-on-one, 	in-home 	parenting 	classes. 	Despite 	Father
20 completing these classes, he failed to apply "the most important" skills taught in the
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1 classes, 	namely, 	responding 	when 	a 	child 	needs 	an 	emotional 	connection 	or
2 interaction. The assigned CYFD social worker, testified that she received a master's
3 degree in social work, which involved coursework in child growth and development,
4 worked as a social worker with CYFD for four years, and frequently provides parents
5 with information about how to parent and how to interact with their children. The
6 social worker further testified that Father should have fully attended to Children's
7 needs, communicated and played with them, held them, and not set the infant child
8 down for prolonged periods of time because of the potential for attachment issues.
9 Further, she testified that Father should not have the oldest child, age three, care for
10 the 	eight-month-old 	child, 	or 	for 	Father, 	as 	doing 	so 	was 	not 	safe 	and 	was
11 	inappropriate for her age. She additionally testified that Father ignored Children
12 	when they tried getting his attention, missed several visitation opportunities, did not
13 	attend the oldest child's developmental therapy sessions, did not give Children gifts
14 	for their birthdays or for Christmas, and would have the oldest child bring things to
15 	him or the youngest child because of his untreated back pain. We therefore cannot
16 conclude the district court relied on stereotyped values in finding CYFD made
17 	reasonable efforts to address the causes and conditions of Children's abuse and
18 	neglect. See Keon H, 	2018-NMSC-033, ,r 38 ("Our standard of review is ...
19 	whether, viewing the evidence in the light most favorable to [CYFD], the fact finder
20 could properly determine that the clear and convincing evidence standard was met.
10

1 Our standard of review does not require us to determine whether the district court
2 could have reached a different conclusion." (alteration, internal quotation marks, and
3 citations omitted)); State ex rel. Children, Youth & Families Dep 't v. Van essa C. ,
4 2000-NMCA-025, il 24, 128 N.M. 701 , 997 P.2d 833 (explaining that we do not
5 "assess the credibility of the witness, deferring instead to the conclusions of the trier
6 of fact[,] " and that we "will not substitute our judgment for that of the [district] court
7 as to any factual matter").
8 C.
9
10 {17}
The 	Amount 	of Time 	Before 	CYFD 	Moved 	to 	Terminate 	Father's
Parental Rights
Father also argues the amount of time before CYFD moved to terminate his
11 	parental rights "is per se insufficient to demonstrate reasonable efforts." In support
12 	of his argument, Father cites Patricia H , wherein this Court noted that "states are
13 	not required to make reunification efforts for an indefinite period of time" and
14 concluded that "[t]he fifteen-month period described in [the Adoption and Safe
15 	Families Act] for time-limited reunification services provides us some guidance in
16 	how we assess the duration of reasonable efforts under state law." 2002-NMCA-
17 	061 , il 26 (internal quotation marks omitted). However, we emphasized "that the use
18 	of such a guideline needs to remain flexible and must be harmonized with the
19 requirements of state law." Id.
20 	{18} 	New Me xico law does not require CYFD to wait a minimum amount of time
21 	before filing a motion to terminate parental rights. See NMSA 1978, § 32A-4-29(A)
11

1 (2009) ("A motion to terminate parental rights may be filed at any stage of the abuse
2 or neglect proceeding by a party to the proceeding." (emphasis added)); see also
3 NMSA 	1978, 	§ 32A-l-3(A) (2009) 	("A child's health and safety shall be the
4 paramount concern."); § 32A-4-28(A) ("In proceedings to terminate parental rights,
5 the court shall give primary consideration to the physical, mental and emotional
6 welfare and needs of the child[.]"). In light of Father's failure to comply with his
7 visitation obligations, his inability to demonstrate "appropriate parenting skills," his
8 failure to complete the recommendations from his initial psychological evaluation,
9 and his refusal to participate in individual counseling and an updated psychological
10 	evaluation, CYFD's motion to terminate his parental rights is not "per se insufficient
11 	to demonstrate reasonable efforts."
12 	CONCLUSION
13 	{19} 	For the foregoing reasons, we affirm the district court's judgment terminating
14 Father's parental rights to Children.
15 	{20}
16
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IT IS SO ORDERED.
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WE CONCUR:

A Gace

3] M. MONICA ZAMORA, Chief Judge

4 7 ot
5 LINE R. MEDLva, Judge

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