A-1-CA-38432•January 16, 2020- CYFD v. Mack R., No. A-1-CA-38432
Texte intégral
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO ex rel. 2 CHILDREN, YOUTH & FAMILIES 3 DEPARTMENT, 4 Petitioner-Appellee, 5 v. No. A-1-CA-38432 6 MACK R., 7 Respondent-Appellant, 8 and 9 SAMANTHA B., 10 Respondent, 11 IN THE MATTER OF MACK R. JR., 12 Child. 13 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 14 Steven Blankinship, District Judge 15 Children, Youth & Families Department 16 Rebecca Liggett, Chief Children’s Court Attorney 17 Santa Fe, NM 18 Kelly P. O’Neill, Children’s Court Attorney 19 Albuquerque, NM 20 for Appellee 21 Office of Nancy L. Simmons, P.C. 22 Nancy L. Simmons 23 Albuquerque. NM 24 for Appellant 25 Court of Appeals of New Mexico Filed 1/16/2020 10:37 AM
2
Erinna Marie Atkins 1
Alamogordo, NM 2
Guardian Ad Litem 3
MEMORANDUM OPINION 4
VANZI, Judge. 5
{1} Respondent Mack R. (Father) appeals from the district court’s judgment 6
terminating his parental rights. In this Court’s notice of proposed disposition, we 7
proposed to summarily affirm. Father filed a memorandum in opposition (MIO), 8
which we have duly considered. Remaining unpersuaded, we affirm. 9
{2} In Father’s memorandum in opposition, he now argues, pursuant to State ex 10
rel. Children, Youth & Families Department v. Alicia P., 1999-NMCA-098, 127 11
N.M. 664, 986 P.2d 460, that (1) for summary calendar purposes, this Court must 12
accept Father’s version of the facts to the extent that they conflict with the district 13
court’s findings of fact [MIO 9], and (2) the district court impermissibly placed the 14
burden of proof on Father to demonstrate that he completed his treatment plan and 15
alleviated the causes and conditions that brought Child into custody [MIO 10]. 16
{3} In support of his first argument, Father contends he presented evidence at the 17
termination of parental rights (TPR) hearing that “he was employed and 1iving with 18
his family, and that his evaluation stated that once he completed anger management 19
therapy and parenting classes, he could be ready for reunification.” [MIO 9-10] 20
Father’s argument, however, misinterprets this Court’s standard of review. We 213 acknowledge that he may have presented such evidence at the TPR hearing for the 1 district court to consider. However, the district court’s order indicates that it was 2 provided with other evidence indicating that Father’s rights should be terminated, 3 including sporadic visiting; failure to complete anger management and parenting 4 classes; failure to properly inform the Children, Youth and Families Department (the 5 Department) of his living arrangements; failure to confirm any details about his 6 employment; and concerns regarding Father’s Texas residence, where the 7 Department is legally unable to place child. [3 RP 467, 473-80] Father has not 8 contested any of the district court’s factual findings as being unsupported by 9 evidence presented at the TPR hearing but has instead outlined evidence presented 10 to the district court that would support a different result. In such a circumstance, we 11 defer to the district court’s weighing of the conflicting evidence. See State ex rel. 12 Children, Youth & Families Dep’t v. Tammy S., 1999-NMCA-009, ¶ 13, 126 N.M. 13 664, 974 P.2d 158 (“This Court will uphold the termination if, viewing the evidence 14 in the light most favorable to the judgment, a fact[-]finder could properly determine 15 that the clear and convincing [evidence] standard was met.”); see also State ex rel. 16 Children, Youth & Families Dep’t v. Amanda H., 2007-NMCA-029, ¶ 19, 141 N.M. 17 299, 154 P.3d 674 (“We employ a narrow standard of review and do not re[]weigh 18 the evidence.”). 19
4
{4} To the extent Father relies on our Supreme Court’s non-precedential 1
dispositional order In re Tye B., No. 31,226 dec. (N.M. Sup. Ct. May 15, 2009) (non- 2
precedential), such reliance is unavailing. In re Tye B. dealt with a situation where 3
the proposed summary disposition relied on facts in the record proper despite the 4
mother’s argument that the facts relied on were not presented at the TPR hearing. Id. 5
¶ 7. Father has made no such argument here, and accordingly we conclude the 6
district court did not err. 7
{5} Father additionally argues that, at the TPR hearing, the burden was 8
impermissibly placed on him to prove that he had ameliorated the causes and 9
conditions that brought Child into custody. [MIO 10] Father contends that the district 10
court shifted the burden because it relied on his failure to provide evidence of his 11
having secured employment to the Department. [MIO 11] However, Father appears 12
to confuse compliance with his treatment plan, which was ordered by the district 13
court in its adjudication order, with the burden placed on him at the TPR hearing. 14
Father’s treatment plans universally required him to (1) maintain safe stable housing 15
and employment; (2) maintain contact with the Department twice a month by phone 16
or in person; (3) and follow all recommendations of the Department. [see e.g., 1 RP 17
49-50, 88-89, 127-128] Evidence showing that Father failed to complete these items 18
of his treatment plan does not establish that the district court impermissibly shifted 19
the burden of proof onto Father but instead was properly presented by the 205
Department to help establish that the causes and conditions were unlikely to be 1
alleviated in the foreseeable future. Further, the district court’s termination order 2
repeatedly acknowledged that the burden was on the Department, stating: 3
New Mexico law requires that [the Department] demonstrate, by clear 4
and convincing evidence, that a child has been neglected or abused as 5
defined by [NMSA 1978,] Section 32A-4-2 [(2017, amended 2018)]. 6
[The Department] must also establish that the causes of the neglect or 7
abuse are unlikely to change in the foreseeable future, despite 8
reasonable efforts by [the Department] to assist the parent in adjusting 9
the conditions that render the parent unable to properly care for the 10
child. [NMSA 1978.] Section 32A-4-28(B)(2)[(2005)] (emphasis 11
added). 12
[3 RP 479] Having failed to point to anything in the record demonstrating otherwise, 13
Father has not met his burden of demonstrating error on appeal. See Farmers, Inc. 14
v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 15
(explaining that we presume correctness on appeal, and the appellant must clearly 16
and affirmatively demonstrate district court error). 17
{6} Accordingly, for the foregoing reasons and the reasons outlined in our notice 18
of proposed disposition, we affirm the district court’s order terminating Father’s 19
parental rights. 20
{7} IT IS SO ORDERED. 21
22
______________________________ 23
LINDA M. VANZI, Judge 246 WE CONCUR: 1 _______________________________ 2 JENNIFER L. ATTREP, Judge 3 _______________________________ 4 JACQUELINE R. MEDINA, Judge 5
1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
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Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
STATE OF NEW MEXICO ex rel. Filed 1/16/2020 10:37 AM
CHILDREN, YOUTH & FAMILIES A.
ae
DEPARTMENT, : / > !
Mark Reynolds
Petitioner Appellee,
6] Vv. No. A-1-CA-38432
MACK R.,
Respondent- Appellant,
and
SAMANTHA B,.,
Respondent,
IN THE MATTER OF MACK R. JR.,
Child.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Steven Blankinship, District J udge
Children, Y outh & Families Department
Rebecca Liggett, Chief Children’s Court Attomey
Santa Fe, NM
Kelly P. O’ Neill, Children’s Court Attomey
Albuquerque, NM
for Appellee
Office of Nancy L. Simmons, P.C.
Nancy L. Simmons
Albuquerque. NM
for Appellant
2
Erinna Marie Atkins 1
Alamogordo, NM 2
Guardian Ad Litem 3
MEMORANDUM OPINION 4
VANZI, Judge. 5
{1} Respondent Mack R. (Father) appeals from the district court’s judgment 6
terminating his parental rights. In this Court’s notice of proposed disposition, we 7
proposed to summarily affirm. Father filed a memorandum in opposition (MIO), 8
which we have duly considered. Remaining unpersuaded, we affirm. 9
{2} In Father’s memorandum in opposition, he now argues, pursuant to State ex 10
rel. Children, Youth & Families Department v. Alicia P., 1999-NMCA-098, 127 11
N.M. 664, 986 P.2d 460, that (1) for summary calendar purposes, this Court must 12
accept Father’s version of the facts to the extent that they conflict with the district 13
court’s findings of fact [MIO 9], and (2) the district court impermissibly placed the 14
burden of proof on Father to demonstrate that he completed his treatment plan and 15
alleviated the causes and conditions that brought Child into custody [MIO 10]. 16
{3} In support of his first argument, Father contends he presented evidence at the 17
termination of parental rights (TPR) hearing that “he was employed and 1iving with 18
his family, and that his evaluation stated that once he completed anger management 19
therapy and parenting classes, he could be ready for reunification.” [MIO 9-10] 20
Father’s argument, however, misinterprets this Court’s standard of review. We 21
3
acknowledge that he may have presented such evidence at the TPR hearing for the 1
district court to consider. However, the district court’s order indicates that it was 2
provided with other evidence indicating that Father’s rights should be terminated, 3
including sporadic visiting; failure to complete anger management and parenting 4
classes; failure to properly inform the Children, Youth and Families Department (the 5
Department) of his living arrangements; failure to confirm any details about his 6
employment; and concerns regarding Father’s Texas residence, where the 7
Department is legally unable to place child. [3 RP 467, 473-80] Father has not 8
contested any of the district court’s factual findings as being unsupported by 9
evidence presented at the TPR hearing but has instead outlined evidence presented 10
to the district court that would support a different result. In such a circumstance, we 11
defer to the district court’s weighing of the conflicting evidence. See State ex rel. 12
Children, Youth & Families Dep’t v. Tammy S., 1999-NMCA-009, ¶ 13, 126 N.M. 13
664, 974 P.2d 158 (“This Court will uphold the termination if, viewing the evidence 14
in the light most favorable to the judgment, a fact[-]finder could properly determine 15
that the clear and convincing [evidence] standard was met.”); see also State ex rel. 16
Children, Youth & Families Dep’t v. Amanda H., 2007-NMCA-029, ¶ 19, 141 N.M. 17
299, 154 P.3d 674 (“We employ a narrow standard of review and do not re[]weigh 18
the evidence.”). 19
4
{4} To the extent Father relies on our Supreme Court’s non-precedential 1
dispositional order In re Tye B., No. 31,226 dec. (N.M. Sup. Ct. May 15, 2009) (non- 2
precedential), such reliance is unavailing. In re Tye B. dealt with a situation where 3
the proposed summary disposition relied on facts in the record proper despite the 4
mother’s argument that the facts relied on were not presented at the TPR hearing. Id. 5
¶ 7. Father has made no such argument here, and accordingly we conclude the 6
district court did not err. 7
{5} Father additionally argues that, at the TPR hearing, the burden was 8
impermissibly placed on him to prove that he had ameliorated the causes and 9
conditions that brought Child into custody. [MIO 10] Father contends that the district 10
court shifted the burden because it relied on his failure to provide evidence of his 11
having secured employment to the Department. [MIO 11] However, Father appears 12
to confuse compliance with his treatment plan, which was ordered by the district 13
court in its adjudication order, with the burden placed on him at the TPR hearing. 14
Father’s treatment plans universally required him to (1) maintain safe stable housing 15
and employment; (2) maintain contact with the Department twice a month by phone 16
or in person; (3) and follow all recommendations of the Department. [see e.g., 1 RP 17
49-50, 88-89, 127-128] Evidence showing that Father failed to complete these items 18
of his treatment plan does not establish that the district court impermissibly shifted 19
the burden of proof onto Father but instead was properly presented by the 20
5
Department to help establish that the causes and conditions were unlikely to be 1
alleviated in the foreseeable future. Further, the district court’s termination order 2
repeatedly acknowledged that the burden was on the Department, stating: 3
New Mexico law requires that [the Department] demonstrate, by clear 4
and convincing evidence, that a child has been neglected or abused as 5
defined by [NMSA 1978,] Section 32A-4-2 [(2017, amended 2018)]. 6
[The Department] must also establish that the causes of the neglect or 7
abuse are unlikely to change in the foreseeable future, despite 8
reasonable efforts by [the Department] to assist the parent in adjusting 9
the conditions that render the parent unable to properly care for the 10
child. [NMSA 1978.] Section 32A-4-28(B)(2)[(2005)] (emphasis 11
added). 12
[3 RP 479] Having failed to point to anything in the record demonstrating otherwise, 13
Father has not met his burden of demonstrating error on appeal. See Farmers, Inc. 14
v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 15
(explaining that we presume correctness on appeal, and the appellant must clearly 16
and affirmatively demonstrate district court error). 17
{6} Accordingly, for the foregoing reasons and the reasons outlined in our notice 18
of proposed disposition, we affirm the district court’s order terminating Father’s 19
parental rights. 20
{7} IT IS SO ORDERED. 21
22
______________________________ 23
LINDA M. VANZI, Judge 24
1
WE CONCUR:
2
3
JENNIFER L. ATTREP, Judge
4 5
Jacqueline R. Medina
JACQUELINE R. MEDINA, Judge
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