March 13, 2009 – State of New Mexico ex rel. Children, Youth and Families Department v. Benjamin O., No. 28,790

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _ March 13, 2009
NO. 28,790
STATE OF NEW MEXICO ex rel.
CHILDREN, YOUTH AND FAMILIES
DEPARTMENT,

Petitioner Appellee,
V.
BEN AMIN O.,

Respondent- Appellant,
and
In The Matter of LAKOTA C., a Child.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Monica Zamora, District Judge

New Mexico Children, Y outh

and Families Department
Simon Romo, Chief Children’s Court Attomey
Rebecca J. Liggett, Children’s Court Attomey
Santa Fe, NM

for Appellee

Lopez & Sakura, LLP
Julie A. Sakura
Santa Fe, NM

for Appellant

OPINION
CASTILLO, Judge.
{1} 	This is the third in a series of appeals dealing with Father’s parental rights to
his daughter. Father’s arguments on appeal fall into two categories. First, he asserts
that the Children, Youth, and Families Department (CYFD) failed to prove
abandonment by clear and convincing evidence. 	Second, Father contends that the
district court failed to comply with the procedure outlined by this Court in its last
opinion on this matter, State ex rel. Children, Youth & Families Dep’t. v. Benjamin
O. (Benjamin O. 2007), 2007-NMCA-070, 141 N.M. 692, 160 P.3d 601. We hold that
CYFD proved by clear and convincing evidence that Father abandoned Child and,
further, 	that 	the 	district 	court 	followed 	our 	direction 	in 	Benjamin 	O. 	2007.
Accordingly, we affirm the district court’s judgment terminating Father’s parental
rights.
I. 	BACKGROUND
{2} 	This case has an extensive history, both with the district court and this Court.
The two previous opinions filed by this Court have presented this history in detail.
See Benjamin O. 2007, 2007-NMCA-070, ¶¶ 2-22; State ex rel. Children, Youth &
Families Dep’t v. Shawna C., 2005-NMCA-066, ¶¶ 2-6, 137 N.M. 687, 114 P.3d 367.
We nevertheless begin with an overview of the procedural background of the case in

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order to place the current appeal in the context of past proceedings.
{3} 	In August 2003, CYFD filed an abuse and neglect petition against Father and
Mother, and Child was taken into CYFD custody. The district court adjudicated Child
to be abused or neglected as to both parents and ordered CYFD to implement a
treatment plan. Both parents appealed that judgment. In the meantime, the matter
proceeded, and the district court held the initial judicial review.
{4} 	As of July 2004, CYFD was still working toward reunification, but in October
2004, the district court approved CYFD’s change of plan to termination of parental
rights and adoption. The change in plan was followed by a motion for termination of
the parental rights of both parents. Father responded to the motion and argued that
CYFD did not make reasonable efforts to assist him to change the circumstances that
led to the abuse or neglect. During the termination of parental rights trial, this Court
issued its opinion in Shawna C., which affirmed the adjudication of abuse or neglect
as to Mother but reversed the adjudication as to Father. 2005-NMCA-066, ¶ 1.
{5} 	After Shawna C. reversed the adjudication of abuse or neglect, in May 2005
CYFD filed a motion for temporary custody of Child to allow further investigation,
the reopening of the trial, and amendment of the motion for termination of parental
rights. 	In June 2005, CYFD filed supplemental allegations (2005 supplemental
allegations) against Father. The district court held a hearing and ordered that CYFD

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continue to implement the treatment plan and that Child remain in CYFD custody.
Soon after this order, in September 2005 Child moved to Georgia to live with Father’s
sister (Aunt).
{6} 	Six months after the filing of Shawna C. in November 2005, the trial for the
termination of parental rights continued. 	CYFD reported to the district court that
Father had not been in contact with Child since the previous July. In its proposed
findings of facts and conclusions of law, CYFD stated that “[a]fter July[] 2005,
[Father] ceased any contact with CYFD, ceased his visitation with [C]hild, ceased any
efforts to maintain adequate housing for [C]hild and ceased any efforts to demonstrate
the stability needed to care for [C]hild.” In addition, CYFD argued that it would be
futile to make further efforts.
{7} 	On February 15, 2006, the district court entered an order terminating the
parental rights of both parents. 	Father appealed the judgment; Mother did not. 	In
April 2007, this Court filed Benjamin O. 2007 and reversed the district court’s
termination of Father’s parental rights. 	2007-NMCA-070, ¶ 33. 	The case was
remanded to the district court “to determine whether CYFD’s efforts with respect to
Father’s housing and employment issues were reasonable, to determine whether
CYFD made any efforts after the adjudication was reversed to facilitate any sort of
reunification between Father and Child, and to make additional findings as necessary

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to comply with the procedure outlined” in the opinion. Id. ¶ 48.
{8} 	In July 2007, the district court issued an order addressing the mandate from this
Court. 	The order required (1) that if CYFD chose to pursue termination against
Father, it was to file a motion for retrial on the amended motion for termination of
parental rights; (2) that if the district court did not find clear and convincing evidence
of neglect by Father, CYFD should expedite the transition of Child to Father; and (3)
that a permanency hearing be held within 30 days. CYFD filed a request for a retrial
and a permanency hearing. 	Although CYFD presented the district court with an
interim permanency hearing report dated August 1, 2007, the permanency hearing was
not held until February 12, 2008.
{9} 	Before an order was filed based on the February 12 permanency hearing, CYFD
filed a motion for leave to amend its earlier motion for the termination of Father’s
parental rights and indicated that it would include allegations of abandonment. The
district court granted CYFD’s motion to amend. In addition, the district court entered
a permanency order and approved CYFD’s February 12 treatment plan, which
designated “adoption” as the permanency plan for Child.
{10} 	On April 2, 2008, CYFD filed the amended motion for the termination of
Father’s parental rights. The motion realleged the original allegations and the 2005
supplemental allegations. The motion also included new allegations of abandonment

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or presumptive abandonment. A trial was held from April 14 through April 16. The
district court received written closing arguments from the parties and, thereafter, on
May 27, 2008, entered judgment terminating Father’s parental rights. In support of
the judgment, the district court also entered extensive findings of fact and conclusions
of law, which we will review throughout our analysis. Father appeals the judgment.
With this procedural history as background, we turn to Father’s arguments on appeal.
II. 	DICUSSION
{11} 	We reorganize Father’s contentions for the purposes of discussion. 	As a
preliminary matter, we address the standard of review—an issue disputed by the
parties. We then turn to Father’s argument that he did not abandon Child within the
meaning of “abandonment” under NMSA 1978, Section 32A-4-2(A) (1999). 	We
conclude by directing our attention to Father’s assertion that the requirements of
Benjamin O. 2007 were not followed by the district court in the final termination
proceedings.
A. 	Standard of Review
{12} 	There is no dispute that Benjamin O. 2007 required the district court to make
a series of findings by clear and convincing evidence. 2007-NMCA-070, ¶¶ 42-43.
“For evidence to be clear and convincing, it must instantly tilt the scales in the
affirmative when weighed against the evidence in opposition and the fact finder’s

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mind is left with an abiding conviction that the evidence is true.” 	State ex rel.
Children, Youth & Families Dep’t v. Hector C., 2008-NMCA-079, ¶ 11, 144 N.M.
222, 185 P.3d 1072 (internal quotation marks and citation omitted). “We will uphold
the district court’s judgment if, viewing the evidence in the light most favorable to the
judgment, a fact finder could properly determine that the clear and convincing
standard was met.” Id. (internal quotation marks and citation omitted).
{13} 	Father 	contends 	that 	whether 	he 	abandoned 	Child 	requires 	de 	novo
interpretation of the statute. CYFD counters that Father’s arguments “are all directed
to factual determinations by the [district court] pursuant to an already established legal
standard.” 	Thus, CYFD’s position is that we should review the district court’s
findings of fact that support the conclusion of abandonment for substantial evidence.
We agree with CYFD.
{14} 	The parties do not disagree about the legal standard for abandonment, and the
core of this issue is whether CYFD provided clear and convincing evidence to
establish that Father abandoned Child. Accordingly, we review the district court’s
conclusion that Father abandoned Child in order to determine if it was supported by
evidence sufficient to meet the clear and convincing standard. See id.
B. 	Abandonment
{15} 	Section 32A-4-2(A)(2)(a) defines “abandonment” as “instances when the

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parent, without justifiable cause . . . left the child with others, including the other
parent or an agency, without provision for support and without communication for a
period of . . . three months if the child was under six years of age at the
commencement of the three-month period.” 	In the alternative, CYFD can raise a
rebuttable presumption of abandonment by first showing that a parent has placed his
child in the care of others and then by establishing the following six additional
criteria:
(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.
NMSA 1978, § 32A-4-28(B)(3)(a)-(f) (2005); § 32A-4-28(C). 	The district court
found (1) that Child was abandoned under Section 32A-4-2(A) and (2) that Father
failed to rebut the presumption of abandonment. Because we conclude that Father
failed to rebut the presumption of abandonment raised under Section 32A-4-28(B),
we need not address whether Father abandoned Child under Section 32A-4-2(A).

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{16} 	Father focuses on the second of the six additional criteria—the disintegration
of the parent-child relationship. 	He relies on State ex rel. Children, Youth and
Families Department v. Joe R., 1997-NMSC-038, ¶ 14, 123 N.M. 711, 945 P.2d 76,
and he argues that CYFD was required to establish two factors: (1) parental conduct
evidencing a conscious disregard of obligations owed to the child, and (2) this conduct
must lead to the disintegration of the parent-child relationship. 	Father asserts that
CYFD failed to prove that he displayed a conscious disregard for Child’s welfare and
that his conduct did not lead to the disintegration of the parent-child bond. 	We
disagree.
{17} 	Specifically, Father contends that he consistently demonstrated his concern for
Child’s welfare by (1) contacting CYFD when he thought Child was not being
properly cared for, (2) traveling to Georgia to visit Child, (3) contacting CYFD when
Aunt was not facilitating the phone calls, (4) contacting CYFD in December 2007, and
(5) sending packages to Child in March 2008. 	To the contrary, Father claims that
CYFD’s actions led to the disintegration of the parent-child bond because CYFD hung
up on him in December 2007 and failed to arrange visits—by telephone or in
person—after November 2007.
{18} 	We fail to see how CYFD’s impolite end to the December 2007 conversation
led to the disintegration of the parent-child bond. CYFD had arranged for calls to

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Child at Aunt’s home. When Father complained in October 2007 that Aunt wasn’t
answering the phone and when his comments to Child became inappropriate, CYFD
set up standing supervised calls to Child at her therapist’s office. After a few failed
attempts to reach Child at the therapist’s office, Father stopped trying. When Child
changed therapists in December 2007, Father had already stopped participating in the
calls. As a result, when the second therapist recommended against interjecting Father
into Child’s therapy, CYFD did not arrange for calls at that location. CYFD did not
reinstate the calls to Aunt’s home because Father had indicated that such an
arrangement was a problem for him.
{19} 	Regarding his contact with CYFD, the district court found that Father generally
made contact when he was dissatisfied. In addition, although Father testified that he
called CYFD numerous times, his social worker testified that it was possible that he
had 	called 	but 	that 	he 	did 	not 	leave 	messages 	for 	her. 	Such
communications—constant calls without messages—are not evidence that Father was
communicating with CYFD in order to further Child’s interests.
{20} 	Considering only actions that took place after the reversal of the first
termination proceedings in Benjamin O. 2007, we conclude that there was ample
evidence that Father consciously disregarded his obligation to Child. 	Almost
immediately after Benjamin O. 2007, CYFD arranged a visit between Father and

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Child. 	CYFD received word, however, that Father would be unable to visit at the
appointed time because he was incarcerated in Colorado. Child moved to Georgia to
live with Aunt before Father was able to travel to Albuquerque. After his release in
June 2007, Father came to New Mexico. Father and the social worker discussed plans
for visitation and for telephone contact, and the telephone contact began almost
immediately. Father told CYFD that he would not be remaining in Albuquerque and
by July, Father had returned to Denver.
{21} 	CYFD attempted to set up a home visit with Father in Denver. Father refused
the visit, saying that he was leaving that day for Georgia. After that, CYFD tried to
contact Father in Georgia so that he could visit Child at her therapist’s office, and the
social worker also researched the possibility of placing Child with Father at the
homeless shelter where he appeared to be living. The social worker sent letters to the
homeless shelter and to the three addresses that she had for him. The next time Father
contacted CYFD, he had returned to Colorado. He told the social worker that he did
not want to live in Georgia.
{22} 	The phone calls between Father and Child continued, sporadically, during this
time. Beginning in October, the calls were routed through Child’s therapist. The first
two calls to the therapist’s office were unsuccessful. Father’s phone had been stolen
at the time of the first call, and he called at the wrong time for the second. After that,

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Father did not try to call the office again. Father’s next attempt to interact with Child
occurred in March 2008, when he sent packages to her through CYFD. As a result,
Father had no contact with Child for a period of five months.
{23} 	Despite the available means of contact, such as letters and packages, Father
does not explain the extended period between October and March in which he entirely
failed to communicate with Child. Consequently, we hold that CYFD presented clear
and convincing evidence that Father consciously disregarded his obligations to Child
and that, as a result, the parent-child relationship disintegrated. C. 	Benjamin O.
2007
{24} 	After the reversal of Father’s adjudication in Shawna C., CYFD maintained
custody of Child and ultimately pursued termination proceedings against Father by
means of the 2005 supplemental allegations of abuse and neglect. 	When those
proceedings culminated in the termination of Father’s parental rights, Father appealed.
That appeal resulted in Benjamin O. 2007 and, in that opinion, this Court took the
opportunity to “clarify the procedure that should be followed after a reversal of an
adjudication of abuse and neglect on these grounds.” 2007-NMCA-070, ¶ 1. Because
the district court’s order did not contain sufficient findings to determine if the
necessary procedure had been followed, this Court reversed the termination of
Father’s parental rights and remanded the case to the district court with instructions

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to make specific findings. Id. ¶¶ 1, 48.
{25} 	Father argues that the district court failed to find by clear and convincing
evidence that: (1) Father’s current actions caused abuse, neglect, or abandonment; (2)
CYFD failed to implement a transition plan in order to return Child to Father; and (3)
CYFD’s own actions did not contribute to the new or current allegations. See id. ¶¶
44, 47-48. We begin with the evidence concerning Father’s current actions.
1. 	Current Actions
{26} 	Despite reversal of the termination of Father’s parental rights in Benjamin O.
2007, we did not foreclose the possibility of subsequent proceedings to terminate
Father’s rights. Id. ¶ 39. Benjamin O. 2007 made it clear that if reunification was not
in Child’s best interests, CYFD could, without filing a new petition, “bring new or
current allegations of abuse, neglect, or abandonment to the district court’s attention.”
Id. This Court acknowledged that CYFD filed the 2005 supplemental allegations in
that regard, and this Court indicated that such allegations would be sufficient if they
were based on current allegations of abuse or neglect and supported by the requisite
evidence. 	Id. 	We understand “new or current allegations” to refer to allegations
based on facts that occurred after the reversal in Benjamin O. 2007—facts that would
support a conclusion that reunification is not possible and termination of parental
rights is in Child’s best interest. See id. If the 2005 supplemental allegations were

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supported by the evidence, Benjamin O. 2007 directs the district court to implement
a treatment plan in accordance with the statute and proceed according to the Child
Abuse and Neglect Act (Act), NMSA 1978, Sections 32A-4-1 to -34 (1993, as
amended through 2005). See Benjamin O. 2007, 2007-NMCA-070, ¶ 44.
{27} 	The record shows that on February 13, 2008, the evidence presented at the first
permanency hearing after Benjamin O. 2007 related to the 2005 supplemental
allegations of abuse or neglect. On March 7, 2008, however, CYFD requested leave
to amend its motion for the termination of Father’s parental rights so that new
allegations—those related to abandonment—could be included. 	The district court
granted the motion and, on April 2, 2008, the pending motion for termination was
amended to include the new allegations. The order terminating Father’s rights relies
on theories of neglect and abandonment.
{28} 	Father contends that the district court failed, until the termination hearing, to
take evidence on the 2005 supplemental allegations in order to determine whether they
were supported by clear and convincing evidence and that, by the time of the hearing,
it was too late to implement a treatment plan that would help Father to overcome the
causes and conditions of neglect. In addition, Father argues that Benjamin O. 2007
contemplated that CYFD would bring current allegations of abuse, neglect, or
abandonment in a proceeding separate from and prior to the termination of parental

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rights. Because we conclude that the district court followed the correct procedure to
terminate Father’s rights based on a current theory of abandonment, we do not address
the 	sufficiency 	of 	the 	2005 	supplemental 	allegations, 	which 	were 	continued
allegations of abuse and neglect.
{29} 	Benjamin O. 2007 considered only the allegations that were before this Court.
The opinion carefully outlines the requirements for CYFD to bring allegations of
abuse and neglect under any circumstances. See id. ¶¶ 43-45. This Court went on to
state that “[i]f CYFD decides to pursue termination of Father’s parental rights, such
rights may only be terminated based on clear and convincing evidence of all of the
usual elements required for termination.” Id. ¶¶ 41, 46. Although this Court required
clear and convincing evidence that Father’s current actions “constitute abuse, neglect,
or abandonment,” id. ¶ 41, Benjamin O. 2007 does not address the procedure to pursue
allegations of abandonment, but instead required “compliance with the provisions of
the Act” as the “only way to ensure that Father’s rights as a parent” were adequately
protected. Id. ¶ 45. We thus turn to the Act, rather than the dictates of Benjamin O.
2007 in order to determine what procedures are required to terminate parental rights
based on abandonment. See id. ¶ 24 (“Because our analysis requires interpretation of
the [Act], our review is de novo.”).
{30} 	To address Father’s argument that a treatment plan and a separate hearing were

15
required, we must compare the procedures for the different bases for termination.
Termination based on abuse or neglect requires the implementation of a treatment
plan. “If a child is found to be neglected or abused, in its dispositional judgment the
court shall also order the department to implement and the child’s parent, guardian or
custodian to cooperate with any treatment plan approved by the court.” Section 32A-
4-22(C). After a treatment plan is adopted, the court conducts periodic reviews of the
progress of the parties. See § 32A-4-25(B). Termination of parental rights may occur
only if the court finds that the causes and conditions of neglect are unlikely to change
despite reasonable efforts by CYFD to assist the parent or if there is “a clear showing
that the efforts [to assist the parent] would be futile.” 	Section 32A-4-28(B)(2)(a).
Like Benjamin O. 2007, these provisions are silent as to the procedure for allegations
of abandonment. See State ex rel. Children, Youth & Families Dep’t v. John D., 1997-
NMCA-019, ¶¶ 11-12, 123 N.M. 114, 934 P.2d 308 (distinguishing between the
requirements for termination under Section 32A-4-28(B)(2), neglect, and Section
32A-4-28(B)(3), abandonment).
{31} 	Instead, Section 32A-4-28(B)(1) simply says that the court shall terminate
parental rights with respect to a child when “there has been an abandonment of the
child by his parents.” There is no indication that the parent who has abandoned the
child must receive services or benefit from a treatment plan. 	See § 32A-4-22(C)

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(requiring a treatment plan when a child “is found to be neglected or abused”).
Instead, the statute simply requires a finding that the child has been abandoned.
Although CYFD did not file the additional allegations of abandonment until April 2,
2008, and the termination proceedings began on April 14, 2008, there was no
objection made to the inclusion of additional grounds for termination. Father did not
object to the procedure employed, and the Act does not require more.
{32} 	In addition, review of the amended motion to terminate parental rights
demonstrates that CYFD’s allegations of abandonment were current—that they were
sufficiently based on Father’s activities after the second reversal in Benjamin O. 2007.
The amended motion states that Father “has not maintained contact with [Child] in
any meaningful way since [CYFD] re-initiated contact with him.” We have already
determined that these allegations were proven by clear and convincing evidence, and
we are further satisfied that the district court properly considered the allegations of
abandonment and that those allegations were based on Father’s current actions.
2. 	Transition Plan
{33} 	In Benjamin O. 2007, we directed the district court and CYFD to “actually put
a transition plan in place in order to attempt to return Child to Father,” and we
explained that CYFD must actually comply with the district court’s orders to
investigate whether Father could regain custody of Child and to assist Father with his

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housing issues. 	2007-NMCA-070, ¶ 38. 	Father contends that CYFD failed to
implement a transition plan to accomplish those goals. The district court concluded
that “CYFD made reasonable efforts to facilitate the reunification of [Father] with
[Child] after the adjudication was reversed to the [t]ermination of [p]arental [r]ights
trial.” In addition, the district court concluded that CYFD made reasonable efforts to
help Father obtain housing. The record supports the trial court’s conclusions.
{34} 	The district court heard testimony that after the filing of our opinion in both
Shawna C. and Benjamin O. 2007, CYFD considered reunification. Father’s social
worker—the one assigned to Father’s case after the reversal in 2005 of Father’s
adjudication in Shawna C.—testified to the following: Father knew that the plan was
reunification and knew that proof of housing and a home visit was necessary in order
for him to reunify with Child. Despite this knowledge, Father refused to allow a home
visit or to provide an address. 	Around the same time, Father lost his apartment.
Although CYFD would have helped Father find acceptable living arrangements, in
July 2005 Father requested that Child be placed with Aunt. Father did not reestablish
contact with Child until December of that year. From this evidence, we determine that
the district court properly concluded that after the adjudication was reversed by
Shawna C., CYFD investigated the possibility of reunifying Father and Child.
{35} 	In addition, the district court heard testimony that CYFD again considered

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reunification after the first termination was reversed in Benjamin O. 2007. 	After
reversal, CYFD conducted a meeting to discuss the plan, which had two tracks:
reunify Father and Child and also pursue permanent placement of Child with Aunt.
Child could not be immediately transferred to Father’s custody because Father was
incarcerated at the time. Father’s social worker from that period testified that in order
to return Child to Father, CYFD felt that it was necessary to have Father’s updated
contact information, to instigate contact between Father and Child, and to obtain a
physical address so that CYFD could conduct home visits. Over the ensuing months,
CYFD attempted but was ultimately unable to achieve these goals.
{36} 	After issuance of Benjamin O. 2007, Father consistently refused a home visit
by CYFD, even though CYFD informed him that such a visit was necessary in order
for him to reunify with Child. He failed to contact CYFD while he was in Georgia so
that CYFD could arrange for visits with Child. 	He failed to maintain telephone
contact with Child, despite CYFD’s efforts to set up calls through the therapist.
Further, the district court found that Father had failed to reestablish contact with Child
after the October 2007 phone calls at the therapist’s office were unsuccessful. The
record supports that finding. This provided sufficient evidence for the district court
to conclude that CYFD made reasonable efforts to reunify Father and Child—even
though that reunification was not ultimately possible.

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{37} 	Benjamin O. 2007 required not only that CYFD attempt to reunify the family,
but also that the district court determine whether CYFD assisted Father with his
housing issues. 2007-NMCA-070, ¶ 38. Father contends that CYFD’s position—that
Father always had sufficient housing—was not reasonable considering the fact that
CYFD knew that Father lived in a shelter at times and that he lost his apartment in
May 2005. This argument ignores the testimony indicating that CYFD did not require
Father to have his own residence or a lease in his name. Rather, CYFD needed Father
to provide the address of the place where he lived so that CYFD could conduct a home
visit in order to determine whether his home was a suitable place for Child to live. In
addition, Father ignores the testimony of a number of social workers, each of whom
indicated either that Father did not request assistance with housing or that Father said
he had a place to live. The evidence further suggests, as the district court found, that
Father refused to provide the addresses of his residences and, as a result, the necessary
home visit never happened.
{38} 	Father focuses on CYFD’s referral to Time-Limited Reunification (TLR)
services and argues that the referral was insufficient to address his housing needs.
Specifically, Father contends that “TLR services were not in fact designed to address
housing issues but instead to assist with reunification in situations where a parent
already has stable housing.” This argument again fails to recognize the standard for

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“stable housing.” CYFD was willing to consider placing Child with Father in a shelter
in Georgia, in Joy Junction in Albuquerque, with a relative, or in an apartment with
roommates. The only requirement was that the housing be safe and stable. Although
the TLR referral may not have been adequate assistance to find housing, that is not the
issue. The TLR referral does demonstrate that CYFD was serious about reunification.
Based on the record, one of the few barriers remaining to reunification was a home
visit—and Father refused to provide any address to facilitate that visit.
3. 	CYFD’s Actions
{39} 	Benjamin O. 2007 also dictated that the district court make findings regarding
whether “the reversed adjudication and/or CYFD’s own actions contributed to the new
allegations of abuse or neglect against Father.” 	2007-NMCA-070, ¶ 48. 	This
direction was specifically tied to Father’s argument in Benjamin O. 2007 that his
failure to locate stable housing and employment was a result of his attempts to comply
with the treatment plan, that Child’s removal caused his depression, and that “much
of Father’s apparent anger stemmed from his belief that Child was wrongly taken into
custody.” Id. ¶ 42. It is necessary to put the current allegations in their proper legal
context: 	CYFD alleged that Father abandoned Child. 	As a result, we examine
whether the allegations of abandonment stemmed from CYFD’s own actions or the
prior reversed adjudication and termination.

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{40} 	The same facts delineated in the preceding paragraphs are relevant here. Until
Father ceased to contact Child, CYFD was making an active effort to maintain their
relationship. 	After the reversal of termination, CYFD arranged for a visit and for
numerous phone calls. When Father indicated a desire to move to Colorado, CYFD
attempted to conduct the requisite home visit in Denver. 	Father refused the visit.
After Father decided to give Georgia a try, CYFD made an effort to locate him and
arrange for visits with Child at her therapist’s office. Father made no effort to contact
CYFD during this time. CYFD answered Father’s complaints regarding the phone
calls at Aunt’s home by arranging for telephone calls at the therapist’s office. Father
tried twice and then gave up trying to call. After the failed phone calls in October
2007, Father did not reach out to Child again until March 2008, when he sent
packages to her through CYFD.
{41} 	Since Benjamin O. 2007, CYFD has made numerous efforts to bring Father and
Child together, and Father’s actions have prevented the reunification. 	There is no
evidence that Father’s anger or depression prevented him from communicating with
Child, and the failure to communicate was the basis for the termination of his parental
rights. Accordingly, we hold that clear and convincing evidence supported the district
court’s finding that CYFD’s “new and current allegations of neglect and abandonment
are not a result of the prior adjudication or the initial termination of parental rights

22
proceeding.”
III. 	CONCLUSION
{42} 	Because we conclude that clear and convincing evidence supported the district
court’s determination that Father abandoned Child and that the district court complied
with the requirements of Benjamin O. 2007, we affirm the district court.
{43} 	IT IS SO ORDERED.
________________________________
CELIA FOY CASTILLO, Judge
WE CONCUR:
________________________________
CYNTHIA A. FRY, Chief Judge
________________________________
ROBERT E. ROBLES, Judge