July 3, 2019-State of New Mexico ex rel. Children, Youth & Families Department v. Jennifer W. and Keaton B., No. A-1-CA-36948

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Court of Appeals of New Mexico
Filed 7/3/2019 11:06 AM

MnP
IN .HECC RT OF APPEALS OF THE STAT OFNEW [*tXICO wm: rk Reyn

SiAaek GC NEW MEXICO ex rel.
CHILDREN, YOUTH & FAMILIES
DEPARTMENT,

Petitioner-Appellee,
V. No. A-1-CA-36948
JENNIFER W. and EATON B.,

Respondents-Appellants,

IN THE MAT1..& Gi KADEN B.,
and BRYSON B.,

Children.

APPEAL FROM T] E DISTRICT COURT OF SAN JUAN COUNTY
Sandra A. Price, 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

Jane B. Yohalem
Santa Fe, NM

for Appellant Jennifer W.

1 Law Offices of Nancy L. Simmons, P.C.
2 Nancy L. Simmons
3 Albuquerque, NM
4 for Appellant Keaton B.
5 Richard J. Austin, P.C.
6 Richard J. Austin
7 Farmington, NM
8 Guardian Ad Litem
9 	MEMORANDUM OPINION
10 	B. ZAMORA, Judge.
11 	{ t} 	Jennifer W. (Mother) and Keaton B. (Father) (collectively, Parents) appeal the
12 result of an adjudication hearing involving their children K.B. and B.B. (collectively,
13 	Children). Pursuant to the Abuse and Neglect Act (the Act), NMSA 1978, §§ 32A-
14 4-1 to -35 (1993 , as amended through 2019), the district court found that Children
15 	were abused as it is defined in NMSA 1978, Section 32A-4-2(B)(4) (2016, amended
16 	2018). 1 On appeal, Parents argue that the district court erred in its application of
17 	Section 32A-4-2(B)(4) and that substantial evidence did not support a finding of
18 	abuse. Unpersuaded, we affirm.
1 All citations to Section 32A-4-2 in this opinion are referring to the 2016
version, which was in effect at the time of the incident at the motel.
2

1 BACKGROUND
2 	{2} 	The district court' s finding of abuse stems from the events of May 31 , 2017,
3 that occurred at a motel in Albuquerque, New Mexico where the family was staying
4 while on their way back home to Farmington, New Mexico, and events that occurred
5 the next day, June 1, 2017, at a relati ve' s home. At the time of the event s, Parents '
6 older son, K.B. , was nine years old and their younger son, B.B., was three. Because
7 the testimony varied between Parents and the other witnesses from the New Mexico
8 Children, 	Youth 	and 	Families 	Department 	(CYFD), 	we 	describe 	the 	CYFD
9 witnesse s' and Parent s' testimony separately.
10 	CYFD's Witnesses
11 	{3} 	Paternal grandfather testified that he and Father talked on the phone three or
12 	four times on May 31 , 2017. The first call occurred around 8:00 or 9:00 a.m. , when
13 	paternal grandfather called Father because he was concerned that he had not heard
14 	from Father in a few days. In that call, Father stated that he did not know where his
15 	family was, did not know what interstate he came in on, and that he had been up all
16 night working on a fence with a friend . In the last call between Father and paternal
17 	grandfather, Father was upset and crying because, after he had returned to the motel,
18 	he had gotten into a "big fight" with Mother. Father told paternal grandfather that
19 	Mother had gone out shopping and came back "messed up. " Father left the motel
3

1 because Mother tried to throw a television on his head and Father was concerned
2 Mother was going to call the police.
3 {4} 	The same day, around 2:00 p.m., Mother called paternal grandfather, her
4 	speech was slurred, and she asked for Father' s phone number. Paternal grandfather
5 provided Father' s phone number, but Mother called him back several times within a
6 short period, each time asking for Father' s phone number. After the third call,
7 paternal grandfather told Mother to write the number down. Mother called back a
8 fourth time moments later, again requesting Father's phone number.
9 {S} 	Paternal grandfather then called his daughter, Brittney Blair, Children' s aunt,
10 	who testified that she then went to the motel. Brittney testified that she arrived at the
11 	motel around 6:30 or 7:00 p.m. , finding Mother and Children in the motel lobby.
12 	Brittney observed that Mother had makeup running down her face, did not make any
13 	sense, did not know where she was, was crying and mumbling, had a tooth that was
14 "hanging by a thread," had a fat lip, tripped and fell, and could not find the room she
15 	was staying in. Brittney informed Mother that she was there to pick up Children so
16 	Mother "could sleep off whatever was going on." Mother told Brittney that Father
17 	was trying to kill her and that she wanted to go with Brittney and Children. Brittney
18 	further observed that Children were dirty and did not have shoes on, K.B. appeared
19 "terrified," and B.B. appeared "scared" and had food crusted around his mouth.
4

1 {6} 	Brittney further testified that she and her husband were waiting in their car for
2 	Mother to get her things and saw Mother on the balcony of her motel room. Brittney
3 testified that Mother exposed herself. Mother then flipped off a man in the car next
4 	to Brittney who had become upset and had yelled something to her. K.B. witnessed
5 this display from inside Brittney's vehicle. Brittney testified that the police arrived
6 to the motel 	around 7:45 	p.m., 	as did Father shortly thereafter. 	Subsequently,
7 	Children went home with Brittney that night.
8 	{7} 	According to Brittney, Parents were supposed to meet her to pick up Children
9 at Cracker Barrel at 7:30 a.m. the next morning, June 1. Brittney, and police that
10 	escorted her at her request, proceeded to Cracker Barrel as planned, but Parents
11 	failed to show up at the scheduled time, prompting Brittney and the police to return
12 to Brittney's home. The police then called CYFD. Around 9:30 a.m. , Parents arrived
13 	at Brittney 's house and as Parents were exiting their vehicle, the police stopped them
14 before they were able to enter Brittney 's home.
15 	{8} 	Brooke Keeling, a CYFD investigator who had arrived at Brittney 's home in
16 response to the police call, testified that Mother told her "they had a few drinks" the
17 	day before. 	Ms. 	Keeling 	further 	testified 	that 	Mother appeared 	fidgety, 	dirty,
18 	disheveled, was talking quickly, and her jacket had brown stains on it. Albuquerque
19 Police Department Detective Maureen O ' Brien also testified that Mother was dirty,
20 	had a busted lip, a missing tooth, a lot of makeup on, and it was hard for her to stand
5

1 up straight. Detective O 'Brien believed that Mother "may have been under the
2 influence of something." According to Detective O 'Brien, Father was also dirty and
3 disheveled. 	When Parents were informed that Children were being taken 	into
4 	custody, Ms. Keeling testified that Mother responded that "she didn' t want [K.B.]
5 anyway, [she] only wanted [B.B.]."
6 	{9} 	The district court also heard testimony from 	various witnesses regarding
7 previous events involving Parents in which there was evidence of possible substance
8 abuse. The district court considered such evidence as useful to providing "history
9 and context," but did not consider such evidence when reaching its decision.
10 	Parents' Testimony
11 	{10} 	Mother testified that on May 31, 2017, Father left the family ' s motel room in
12 the "late morning" to get breakfast for the family. Mother also testified that Father
13 	became lost because the family was staying at a different motel than the one they
14 normally stayed at in Albuquerque. Father did not return for a couple hours and
15 	Mother became worried.
16 	{11} 	Because Father was gone so long and the phone was broken in their room,
17 Mother instructed K.B. to go to the front office of the motel to call his paternal
18 	grandfather, while she stayed in the room with B.B., who was asleep. K.B. remained
19 in her sight the entire time he was gone from the room. K.B. returned to the room
20 and said he was unable to make the phone call. Mother then went down to the front
6

1 office with Children to call paternal grandfather. Mother called him and requested
2 Father's phone number because Father had a new phone and Mother did not
3 remember the number. Paternal grandfather did not have the number and said he was
4 going to call Brittney.
5 	{12} 	Mother further testified that Brittney and the police arrived later and the police
6 threatened to take Children. Father then returned to the motel and offered to be drug
7 tested, but the police refused. The police told Parents that Children were either going
8 to spend the night with Brittney or they were going to call CYFD.
9 	{13} 	At the hearing, Mother denied that she had taken or ingested "anything" on
10 	May 31. She claimed that she had only taken a sleeping pill and drank half a beer
11 	the night before. Mother denied that she was slurring her speech that she had any
12 problems walking, that she had exposed herself in any way, or that she had a busted
13 	lip and a broken tooth on May 31. Mother testified she had split her lip and loosened
14 	her tooth when she slipped on water on the floor after taking a shower, but that
15 	occurred on June 1, not May 31.
16 	{14} 	According to Mother, the plan was to pick up Children at 7:30 a.m. the next
17 	morning 	from 	Brittney's 	house, 	although 	Father 	testified 	that 	there 	was 	no
18 	agreement to meet at Cracker Barrel and no set time to get Children. Mother testified
19 that they did not show up until 9:00 a.m. because the alarm on their phone did not
20 	go off. Mother testified that she might have appeared dirty because she had spilled
7

1 chocolate milk on herself while she was pouring the milk into B.B. ' s cup. Father
2 testified that he did not hit Mother on May 31 or June 1, had never struck her, and a
3 CYFD investigator testified that Father denied any allegations of substance abuse.
4 Mother also testified that Father did not cause her injury, that they did not have a
5 history of domestic violence, or that she had a problem with alcohol or other
6 substances.
7 The District Court's Findings
8 {15} 	The district court based its decision on the events that occurred on May 31
9 and June 1. However, the district court stated that it was treating prior events "as
10 useful for history and context, not as a basis for the [c]ourt' s decision." The district
11 	court then concluded that Children were not in a safe situation based on Parents '
12 	condition on May 31 and June 1, and there was clear and convincing evidence that
13 	Children were abused pursuant to Section 32A-4-2(B)(4).
14 	DISCUSSION
15 	I. 	Section 32A-4-2(B)(4)
16 	{16} 	We first address Parents' arguments regarding their suggested interpretation
17 	of Section 32A-4-2(B)(4), which involves a question oflaw that we review de novo.
18 	See In re Daniel H , 2003-NMCA-063 , ,r 8, 133 N.M. 630, 68 P.3d 176. Parents urge
19 us to interpret Section 32A-4-2(B)(4) consistent with our courts interpretation of the
20 criminal child abuse statute, NMSA 1978, § 30-6-1 (D) (2009). It follows, they argue,
21 	that to make a finding under Section 3 2A-4-2(B )( 4 ), a district court must determine
8

1 that a parent' s conduct created a "substantial and foreseeable ri sk of harm" to the
2 child, a standard taken from State v. Chavez, a case involving allegations of criminal
3 child abus e. 2009-NMSC-035, ,r 22, 146 N.M. 434, 211 P.3d 891 (emphasis, internal
4 quotation marks, and citation omitted).
5 {17} 	We decline to interpret Section 32A-4-2(B) in the manner argued by Parent s.
6 It is true that the language used by the Legislature in Section 3 2A-4-2(B )( 4) and
7 Section 30-6-1 (D)(l) is similar. Despite the similaritie s, however, we previously
8 have rejected Parent s' approach. We do not apply the Act' s definitions in the same
9 manner as we do the definitions in criminal cases because "[a]n abuse and neglect
10 proceeding is not a criminal prosecution." State ex re l. Children, Youth & Famili es
11 	Dep 't v. Michael H , 2018-NMCA-032, ,r 31 , 417 P.3d 1130 (" We .. . do not
12 	interpret the definition of abandonment in Section 32A-4-2(A)(2) to incorporate the
13 	elements of criminal abandonment under Section 30-6-1 (B)." ). 	Parents neither
14 	distinguish Michael H nor offer any argument or authority to warrant deviating from
15 	its reasoning, and we see no basis for doing so here. As such, we do not equate the
16 definition of an abused child under Section 32A-4-2(B)(4) with criminal child abuse
17 	under Section 30-6-l(D)(l).
18 	{18} 	Parents also direct us to the district court' s failure to make a finding of abuse
19 or neglect under Section 32A-4-2(B)(l), (B)(2), and (F)(2), each of which appear in
20 the abuse/neglect petition filed below, as inconsistent with the district court' s finding
9

1 of abuse under Section 32A-4-2(B)(4). We do not see how a failure to make a finding
2 under these provisions would preclude a finding under Section 32A-4-2(B)(4), and
3 Parents do not direct us to an authority indicating that this is the case. See Curry v.
4 	Great Nw. Ins. Co., 2014-NMCA-031, ,i 28,320 P.3d 482 ("Where a party cites no
5 authority to support an argument, we may assume no such authority exists."). The
6 Act permits the finding of an abused or neglected child in ten defined situations as
7 delineated by the "or" separating each subsection within Section 32A-4-2(B) and
8 (F). The district court did not make a finding under Section 32A-4-2(B)(l ), (B)(2),
9 or (F)(2), and thus the applicability of those provisions is not before this Court.
10 Consequently, we confine our review to the district court's finding under Section
11 	32A-4-2(B)(4).
12 {19} 	Father 	also 	argues 	that 	Section 	32A-4-2(B)(4) 	reqmres 	that 	a 	parent
13 	affirmatively act in placing the child in a situation that may endanger the child's life
14 or health, not just permit the situation to occur through inaction. We need not address
15 	that quandary. Inaction by Parents did not create the dangerous situation in this case.
16 	As discussed below, the danger to Children arose only because of Parents' conduct
17 	that placed Children in a dangerous situation.
18 	II.
19
20 	{2 0}
Substantial 	Evidence 	Supports 	the 	District 	Court's 	Finding 	Under
Section 32A-4-2(B)(4)
Having rejected Parent' s above arguments, we next examine the evidence
21 	presented by CYFD to the district court. The district court adopted, verbatim,
10

1 CYFD's and the guardian ad }item's proposed findings of fact and conclusions of
2 law, which Parents argue reduces the deference we should give to them. The
3 verbatim adoption of findings of fact and conclusions of law does not constitute
4 reversible error if the district court's findings are supported by proper evidence in
5 the record. Rapid Temps, Inc. v. Lamon, 2008-NMCA-122, ,r 28, 144 N.M. 804, 192
6 P.3d 799. Further, Mother does not challenge any of the district court's findings of
7 fact. See Seipert v. Johnson, 2003-NMCA-l 19, ,r 26, 134 N.M. 394, 77 P.3d 298
8 ("An 	unchallenged 	finding 	of the 	trial 	court 	is 	binding 	on 	appeal."). 	Father
9 challenges only a single finding based on a lack of substantial evidence and that
10 finding simply states that "there was clear and convincing evidence that [Children]
11 	are abused children as defined in [Section] 32A-4-2(B)(4)[.]" As such, "our review
12 	is limited to a determination of whether the district court could have found that
13 	[Parents] abused or neglected [Children] based upon the evidence before it." Michael
14 H, 2018-NMCA-032, ,r 21 (internal quotation marks and citation omitted).
15 	{21} 	Consequently, we must determine whether substantial evidence supports the
16 district court's finding of abuse under Section 32A-4-2(B)(4). See State ex rel.
17 	Children, Youth & Families Dep 't v. Patricia H, 2002-NMCA-06 l, ,r 22, 132 N.M.
18 	299, 47 P.3d 859. "Substantial evidence is relevant evidence that a reasonable mind
19 	would accept as adequate to support a conclusion." Id. (internal quotation marks and
20 citation omitted).
1 1

1 {22} 	Section 32A-4-2(B)(4) defines an "abused child" as a child "whose parent,
2 guardian or custodian has knowingly, intentionally or negligently placed the child in
3 a situation that may endanger the child's life or health[.]" "[I]n an abuse or neglect
4 proceeding, the fact finder must be presented with clear and convincing evidence
5 that the child was abused[.]" State ex rel. 	Children, 	Youth 	& Families Dep 't v.
6 Shawna C., 2005-NMCA-066, 17, 137 N.M. 687, 114 P.3d 367. "For evidence to
7 be clear and convincing, it must instantly tilt the scales in the affirmative when
8 weighed against the evidence in opposition and the fact finder's mind is left with an
9 abiding conviction that the evidence is true." Id. 	(internal quotation marks and
10 citation omitted).
11 	{23} 	Here, our review of the record supports the district court's finding of abuse.
12 	Multiple witnesses testified that Mother behaved erratically on May 31 and June 1.
13 	On May 31, Mother had makeup running down her face, did not make any sense
14 while speaking, did not know where she was, was crying and mumbling, tripped and
15 	fell, could not find her room, and was unable to remember a phone number or
16 	conversations that were only minutes apart. Paternal grandfather testified that Father
17 	told him that Parents had been in a fight. Despite the condition Mother was in, she
18 	sent K.B., who was only nine years old, down to a motel lobby on his own in an
19 unfamiliar city. Mother later exposed herself to the public from a balcony within
20 K.B. 's direct line of sight. Mother's disjointed condition continued into the next day,
12

1 June 1, when, arriving late to pick up Children, witnesses described her as fidgety,
2 dirty, talking quickly, disheveled, not being able to stand up straight, constantly
3 adjusting her clothing, which was soiled or stained, and appearing to be under the
4 influence. The evidence further established that Mother was in such poor condition
5 she was unable to supervise or care for Children, who were described as dirty,
6 shoeless, scared, 	and terrified. 	Any number of calamities could have befallen
7 Children while Mother was in this state for several hours prior to Brittney's arrival.
8 {24} 	Father attempts to distinguish himself from Mother by arguing that he did not
9 participate in the circumstances that placed Children in danger. We disagree and
10 conclude that Father also contributed to the dangerous situation. Father was also
11 	acting bizarrely. Paternal grandfather testified that Father called him multiple times,
12 Father stated that he did not know where he or his family was, and further said that
13 	he had been up all night working on a fence, despite his testimony that the family
14 had driven into Albuquerque that same night and spent the night at the motel.
15 	Critically, after fighting with Mother, Father left Children under the supervision of
16 	Mother for several hours with full knowledge that she was "messed up." Father was,
17 	at the very least, negligent in permitting Children to remain in Mother' s care
18 	unsupervised.
19 	{25} 	Although Parents testified to the contrary, the district court was free to reject
20 their testimony. See State ex rel. Children, Youth & Families Dep 't v. Amanda M,
13

1 2006-NMCA-133, ,r 28, 140 N.M. 578, 144 P.3d 137 ("The fact finder may freely
2 reject ... self-serving testimony[.]"). Moreover, we agree with Parents that the Act
3 does not permit a district court to find abuse based solely on a parent's addiction,
4 although it does permit a finding of abuse if it prompts the harm the statute defines
5 as abuse. See State ex rel. Children, Youth & Families Dep 't v. Amanda H, 2007-
6 NMCA-029, ,r 25, 141 N.M. 299, 154 P.3d 674 ("The unfavorable personal status of
7 the parent is relevant only to the extent that it prompts either the harms defined as
8 abuse, or the neglect." (omission, internal quotation marks, and citation omitted)).
9 Such is the case here as was made clear in the district court's findings. The evidence
10 demonstrating prior substance abuse by Parents was relevant only to the extent it
11 	provided history and context to Parents' behavior on May 31 and June 1. Thus,
12 	viewing the evidence in the light most favorable to CYFD, we conclude that
13 	substantial evidence supports the district court's finding that there was clear and
14 	convincing evidence that Children were abused pursuant to Section 32A-4-2(B)(4).
15 	CONCLUSION
16 	{26} 	For the aforementioned reasons, we affirm the district court's finding of abuse
17 	under Section 32A-4-2(B)(4).
18 	{2 7} 	IT IS SO ORDERED.
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1 WE CONCUR:
2. mai
2
3
J. MILES HANISEE, Judge
4 5
Kristina Bogardus
KRISTINA BOGARDUS, Judge
15