A-1-CA-37326 | Omnilex

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico

STATE OF NEW MEXICO ex rel. Filed 3/4/2019 1:02 PM
CHILDREN, YOUTH & FAMILIES
DEPARTMENT, Md.

V. NO. A-1-CA-37326

VERONICA G.,

Respondent-Appellant,

and

DAVID O. and JESSE M.,

Respondents,

12
13
14

IN THE MATTER OF ARRAYAH G.,
ANGEL O., EMILIO O., and
MARY JANE O.,

Children.

=e ae T A TART 47

16
17

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

| Children, Youth & Families Department

19] Rebecca J. Liggett, Chief Children’s Court Attorney
20} Santa Fe, NM

21] Kelly P. O’Neill, Children’s Court Attorney

22 Albuquerque, NM

far Annellee
for Appettee

63 AD es

Law Offices of Nancy L. Simmons, P.C,
Nancy L. Simons

Albuquerque, NM

for Appellant

Laura K.. Castillo
Hobbs, NM

Guardian Ad Litem

DECISION
VANZI, Judge.
{ht Veronica G. (Mother) appeals from the district court’s termination of her
parental rights to Arrayah G., Angel O., Emilio O., and Mary Jane O. (collectively,
Children). For the reasons that follow, we affirm the district court’s judgment
terminating Mother's parental rights to Children.
BACKGROUND
{2} The New Mexico Children, Youth and Families Department (CYFD) took
custody of Children, ages eleven, nine, eight, and seven at the time, under an ex parte
custody order issued January 9, 2017. In support of the order, CYFD filed an
affidavit stating it received a report that Children were physically neglected as a
result of Mother’s drug abuse. The report alleged that there was no food, hot water,

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drugs. Additionally, CYFD received a report that Mother excessively and

inappropriately disciplined Angel by hitting him with a belt and calling him

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derogatory names after he attempted to run away to his father’s house. The affidavit
also listed two prior substantiated reports of emotional abuse as a result of Children
witnessing incidents of domestic violence between Mother and David O. (Father),
as well as several other substantiated reports of physical and educational neglect. On
March 23, 2017, Mother pleaded no contest to the charge of neglect, the factual basis
for which was “set forth in [the] affidavit filed with [the] motion for ex-parte custody
order.” The district court ordered CYFD to implement a court-approved treatment
plan, which included eliminating drug use, obtaining stable employment, and
maintaining weekly contact with CYFD to go over the treatment plan. Additionally,
the treatment plan specified Mother would complete a psychological evaluation and
drug and alcohol assessment, participate in individual parenting training,
consistently attend visitations, and obtain stable housing.

{3} On December 5, 2017, CYFD filed a motion to terminate Mother’s parental
rights to Children, alleging Mother was unwilling to utilize or benefit from the
services CYFD attempted to offer her. The district court held the termination hearing
on February 27, 2018, where it heard the following testimony from April Sosa-

SNES IT

Garner, the CYFD caseworker assigned to Mother’s case.

' David O. is the biological father of Angel O., Mary Jane O., and Emilio O.
but not of Arrayah G. However, for ease of reference, we refer to David O. as Father,
as Arrayah G.’s biological father had no significant involvement in this case relevant
to Mother’s appeal.

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4 Ms. Sosa-Garner visited Mother on several occasions to go over her treatment
plan, which Mother appeared to understand. CYFD referred Mother to the Lea
County Family Reunification Court (Family Reunification Court) some time “at the
beginning of this case.” However, Mother did not enroll in the Family Reunification
Court program until August 2017. Mother “did not do very well” and was dismissed
from the program in September 2017. CYFD also referred Mother to a counseling
agency for her psychological evaluation and drug and alcohol assessment. While
Mother completed the intake for her psychological evaluation, she never returned to
complete the evaluation.

{83} Mother admitted to using methamphetamine until as late as mid-January 2018
and tested positive the last time she was tested in November 2017. Ms. Sosa-Garner
testified that Mother tested positive every time she took a drug test. CYFD referred
and transported Mother to a rehabilitation center in Clovis in August 2017. However,
Mother left after six days when she mistakenly believed she had a job offer from a
fast food restaurant. CYFD also referred Mother to Palmer Drug Abuse Program
(PDAP) on two different occasions for assistance in attending twelve-step meetings
and entering into other rehabilitation centers. However, Mother did not regularly
attend the twelve-step meetings, nor did Mother contact PDAP for the second

referral.

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6} Additionally, CYFD referred Mother to parenting classes and individual
counseling. CYFD provided Mother with monthly bus passes and transported her to
some of the parenting classes. However, Mother stopped going to the parenting
classes after the third session, claiming it was difficult to attend the classes, given
their location and times. CYFD informed Mother of other parenting classes at
different times, but Mother did not attend any of the alternative classes. Mother
attended counseling in conjunction with Family Reunification Court until she was
referred Mother to another counseling program. However, Mother did not attend any
other counseling programs.

(7) CYFD arranged and transported Mother to monthly visitations with Children.
Ms. Sosa-Garner observed Mother interacting appropriately with Children during
visitations and did not observe her inappropriately discipline them. Ms. Sosa-Garner
also observed Mother being protective and supportive of Children, including during
one visitation in January 2018 where Father had an outburst and Mother tried to de-
escalate and protect Children. In early January, at Mother’s request, Ms. Sosa-
Gamer tried to set up more visitations with Children but was unable to do so because
she could not reach Mother after Mother changed her phone number.

8; Mother struggled with obtaining stable employment and housing. During the

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Mother also worked at a fast food restaurant for a couple of days before quitting.
CYFD asked Mother to give her caseworker a list of prospective employers so her
caseworker could call and advocate for Mother. However, Mother never provided
her caseworker the list. Mother moved back and forth between her mother and
uncle’s houses throughout the case. CYFD attempted to get Mother into low-income
housing but was unable to do so because of Mother’s lack of stable employment. At
the time of the termination hearing, Mother was living with her sister in a trailer that
was not big enough to house Children.

9} Mother was on probation for a 2016 theft charge. As part of her probation,
Mother was scheduled to enter into a nine-month residential treatment program at
the New Mexico Women’s Recovery Center (the Recovery Center) at the end of
January 2018 where Mother would be able to participate in individual counseling,
drug rehabilitation, and parenting classes. While Mother’s probation officer told Ms.
Sosa-Garer that Mother's “bed date” was at the end of January 2018, she was not
accepted into the program until mid-February and was still waiting for probation to
transport her to the Recovery Center at the time of the termination hearing. Ms. Sosa-
Garner was unable to get in contact with
Mother was scheduled to be transported. Based on her experience with Mother to

date, Ms. Sosa~Gamer believed any further efforts to rehabilitate Mother would be

futile. She also believed it would be detrimental for Children to have to wait in foster
care for another nine months for Mother to finish the Recovery Center program.

410} At the conclusion of the hearing, the district court made oral findings of fact
and conclusions of law. The court took judicial notice of Mother’s no-contest plea
to the charge of neglect. While the court found that Mother had a strong bond with
Children, it also found that Mother made no effort in completing her treatment plan.
The court noted that although Mother was accepted into the Recovery Center, she
had a “bed date” that had already passed, and it was unclear when she would actually
begin the program. Citing our observation in /n re Termination of Parental Rights
of Reuben & Elizabeth O. v. Department of Human Services, 1986-NMCA-O31,
4 36, 104.N.M. 644, 725 P.2d 844, that a court need not keep children in an indefinite
holding pattern, the district court then concluded that the conditions and causes of
the neglect were unlikely to change in the foreseeable future. The court found that
CYFD made referrals to appropriate services, attempted to verify Mother’s
employment, and attempted to send Mother to counseling and parenting classes. The
court concluded that CYFD proved by clear and convincing evidence all the
requirements necessary for termination of parental rights under NMSA 19
Section 32A-4-28(B)\(2) (2005). After the hearing, the district court issued a written

order terminating Mother’s parental rights and incorporating by reference the

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findings of fact and conclusions of law made at the close of the termination hearing.’
This appeal followed.

DISCUSSION

fy On appeal, Mother makes two arguments. First, Mother contends there was
not sufficient evidence to support a finding that she was unlikely to change the
conditions and causes of the neglect in the foreseeable future. Second, Mother
contends CYFD failed to make reasonable efforts to assist her in adjusting the
conditions that rendered her unable to care for Children properly. We address each
argument in turn.

Standard of Review

412} The standard of proof for termination of parental rights is clear and convincing
evidence. State ex rel. Children, Youth & Families Dep't v. Vanessa C., 2000-
NMCA-025, 4 24, 128 N.M. 701, 997 P.2d 833. “Clear and convincing evidence is
defined as evidence that instantly tilts the scales in the affirmative when weighed
against the evidence in opposition and the fact[-]finder’s mind is left with an abiding
conviction that the evidence is true.” State ex rel. Children, Youth & Families Dep't

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(16, 146 NM. 286, 209 P.3d 778 (alteration,

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internal quotation marks, and citation omitted). “We will uphold the district court’s

* We encourage district courts to enter written findings of fact to facilitate
meaningful review, especially in fact-intensive matters such as termination hearings.

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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.” 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). Thus, we ask “whether the [district] court’s conclusion, when viewed in
the light most favorable to the decision below, was supported by substantial
evidence, not whether the [district] court could have reached a different conclusion.”
State ex rel. Children, Youth & Families Dep’t v. Patricia H., 2002-NMCA-061,
431, 132 N.M. 299, 47 P.3d 859

Substantial Evidence Supports the Finding That the Conditions and Causes of
the Neglect Were Unlikely to Change in the Foreseeable Future

413} Before a court terminates a parent’s rights with respect to a neglected or
abused child, the court must find that “the conditions and causes of the neglect and
abuse are unlikely to change in the foreseeable future[.]” Section 32A-4-28(B)(2).
“We have interpreted the term ‘foreseeable future’ to refer to corrective change
within a reasonably definite time or within the near future.” Patricia H., 2002-
NMCA-061, 934 (internal quotation marks and citation omitted). Viewing the
evidence in the light most favorable to the judgment, we conclude there was

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substantial evidence of a clear and convincing

unlikely to change in the foreseeable future.

{53

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44} Mother admitted using methamphetamine as recently as one month before the
termination hearing and repeatedly tested positive for the drug. Mother also failed
to follow through on any of the drug addiction treatment opportunities arranged by
CYFD. While Mother was scheduled to enter the Recovery Center, she already had
a “bed date” that had passed a month prior to the hearing, and there was no indication
when probation would transport her. Moreover, the Recovery Center program was
nine months long, and there was no guarantee Mother would successfully complete
it given her history. As the district court noted,

(T]n balancing the interests of the parents and children, the court is not

required to place the children indefinitely in a legal holding pattern. To
do so would force the children to wait for the uncertain possibility that
the natural parents, despite their persistent and long-standing disregard
of the children’s interest, may remedy past faults which have rendered
the children neglected.

Inre Reuben & Elizabeth O., \986-NMCA-031, 4 36. By the time of the termination
hearing, Children had been in CYFD custody for over thirteen months, and the
district court was not required to force them ito wait nine more months for the
uncertain possibility Mother would successfully complete the program. See id.

48} Mother contends that evidence of her continued drug use could not support a

finding that the conditions and causes of neglect were unlikely to change in the

contributed to her inability to care for Children. In support of her argument, Mother

cites State ex rel, Children, Youth & Families Department v. Shawna C., 2005-

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NMCA-066, € 30, 137 N.M. 687, 114 P.3d 367, where we held that a finding of
abuse or neglect cannot be based solely on a parent’s status, such as being an addict,
but must instead focus on how the parent’s status prompts the abuse or neglect.
While we agree that a parent’s addiction, standing alone, is generally insufficient to
support a finding of abuse or neglect, see id., we are not confronted with such a
situation here. As CYFD points out, the mother in Shawna C. was appealing an
adjudication that she abused or neglected the child, id. 7, whereas here, Mother
pleaded no contest to the charge of neglect. The district court specified that the
factual basis for Mother’s plea was set forth in CYFD’s affidavit in support of the
ex parte custody order, which made explicit allegations that Children were neglected

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as a result of Mother’s drug use. Consequently, we cannot agree that CYFD failed
to demonstrate a sufficient nexus between Mother’s drug use and the neglect of
Children.

16) In addition to her struggles with drug use, Mother failed to comply with
virtually every portion of her treatment plan. Mother did not maintain stable
employment and never provided CYFD with a list of prospective employers. Nor
lid she obtain stable and appropriate housing. Mother only attended thre

classes despite having alternatives. Mother “did not do very well” in the Family

Reunification Court program and was dismissed after approximately one month.

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counseling before or afler her brief tenure at the Family Reunification Court
program. {n addition, Ms. Sosa-Garner testified that she believed, based on her
experience with Mother, that any further efforts to rehabilitate Mother would be
futile. We conclude that there was substantial evidence of a clear and convincing
nature that the causes and conditions of neglect were unlikely to change in the
foreseeable future,

7 Mother contends that her parental rights cannot be terminated based on her

failure to cornply with her treatment plan. In support of her argument, Mother cites

Inve Mary £., 1989-NMCA-054, 108 N.M. 702, 778 P.2d 449, in which we held

that evidence that a mother failed to comply with a non-court mandated treatment
plan during a period when CYFD wrongfully took custody of her children, was
insufficient, standing alone, to support an adjudication that she neglected her
children. See id. 17-19. However, Mary ZL. involved an appeal from an
adjudication of neglect. fd @ 1. As mentioned above, Mother, here, pleaded no
contest to the charge of neglect. Furthermore, Mother was court-ordered to comply
with her treatment plan. Mother provides no authority for the proposition that the
district court cannot rely on a parent's failure to participate in a court-ordered
treatment plan as evidence in terminating parental rights, and therefore, we assume

nome exists. See Jn re Adoption af Dae, 1984-NMSC-024, 72, 100 N.M. 764, 676

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P.2d 1329. We reject Mother’s argument that her parental rights could not be
terminated based on her failure to comply with her court-ordered treatment plan.

Substantial Evidence Supports the Finding That CYFD Made Reasonable
Efforts to Assist Mother

gia} Under Section 32A-4-28(B)(2), CYFD must show “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.” (Emphasis added.) We
consider the totality of the circumstances when reviewing the district court’s
determination that CYFD made reasonable efforts to assist the parent. See State ex
rel. Children, Youth & Families Dep’t v. Keon H., 2018-NMSC-033, 9 41, 421 P.3d
814. “[ We also consider the duration of reunification services provided to a parent
by CYFD prior to resorting to termination.” State ex rel. Children, Youth & Families
Dep’t v. Alfonso M.-E., 2016-NMCA-021, 7 54, 366 P.3d 282. This Court considers
the fifteen-month “time-limited reunification services” period set forth under the
Adoption and Safe Families Act of 1997 (ASFA), Pub. L. No. 105-89, 111 Stat.
2115, as “guidance” in our reasonable efforts analysis. See Patricia H., 2002-

NMCA-061, # 26. “What constitutes reasonable efforts may vary with a number of

recalcitrance of the problerns that render the parent unable to provide adequate

parenting.” Jd. 9 23. “Efforts to assist a parent may include individual, group, and

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family counseling, substance abuse treatment, mental health services, transportation,
child care, and other therapeutic services.” Keon H., 2018-NMSC-033, © 41 (internal
quotation marks and citation omitted}. “However, our job is not to determine
whether CYFD did everything possible; our task is limited by our statutory scope of
review to whether CYFD complied with the minimum required under law.” Patricia
F., 2002-NMCA-061, 7 28.

439) Mother contends CYFD failed to make reasonable efforts to assist her in
ameliorating the conditions and causes of the neglect. However, looking at the
totality of CYFD’s efforts to assist Mother over the course of this case, we conclude
there was substantial evidence of a clear and convincing nature that CYFD’s efforts
were reasonable, Ms. Sosa-Garner visited Mother on several occasions to go over
her treatment plan. While it is unclear from the testimony exactly when CYFD first
referred Mother to outside services, Ms. Sosa-Garner testified that she referred
Mother to the Family Reunification Court “at the beginning of this case” where she
could receive counseling. CYFD also referred Mother to a counseling agency for a
psychological evaluation and drug/alcohol assessment. CYFD enrolied Mother in
and transported her to a Clovis rehabilitation center. CYFD also referred !
PDAP twice for assistance with attending twelve-step meetings and other

rehabilitation centers.

20} Additionally, CYFD referred Mother to parenting classes. When Mother
claimed it was difficult to get to the classes, given their location and times, CYFD
provided her with alternative classes to attend. CYFD also gave Mother monthly bus
passes, transported her to some of the parenting classes, and arranged for and
transported Mother to monthly visitations with Children. When Mother requested
additional visitations, CYFD tried to schedule more but was unable to coordinate
with Mother after she changed her telephone number. CYFD also made efforts to
help Mother with employment and housing. CYFD asked Mother to provide her
caseworker with a list of prospective employers so her caseworker could call and
advocate for her, but Mother never did. CYFD attempted to help Mother get into
subsidized housing but was unsuccessful because of Mother’s lack of stable
employment.

321; Mother claims these efforts were insufficient for a variety of reasons, arguing
that CYFD did not do enough to help her with her job search or provide her with
one-on-one parenting classes or more intensive drug addiction treatments.
“However, our job is not to determine whether CYFD did everything possible; our

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task is limited by our statutory scope of review to whether CYFD complied with tr

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minimum required under law.” Patricia H., 2002-NMCA-061, 9 28. While we

empathize with Mother’s struggles with addiction, we have repeatedly said that a

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unreasonable. See id. € 23 (explaining that “[wJhat constitutes reasonable efforts
may vary with a number of factors, such as the level of cooperation demonstrated by
the parent”); see also In re Termination of Parental Rights of Eventyr J., 1995-
NMCA-087, | 32, 120 N.M. 463, 902 P.2d 1066 (stating that when CYFD has made
reasonable efforts, further efforts are not required).

2} Mother also contends CYFD’s efforts were insufficient because it failed to
assist her with domestic violence and anger management. But, as CYFD points out,
there is no indication that Mother’s parental rights were terminated as a result of
issues with domestic violence or anger management. When the district court
terminated Mother’s rights, it did not reference any issues with domestic violence or
anger management, but instead focused on Mother’s lack of participation with her
court-approved treatment plan, which did not include treatment for anger
management or domestic violence. While CYFD’s affidavit in support of the ex
parte custody order listed two prior substantiated reports of emotional abuse as a
result of Children witnessing domestic violence incidents between Mother and
Father, there is no indication that Mother was in a relationship with Father during
he pendency of this case, nor any evidence
relationship. While CYFD alleged that Mother excessively and inappropriately

disciplined Angel, we do not see how counseling and parenting classes could not

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have addressed this issue or why separate treatment for anger management was
required.

23} Finally, Mother argues that CYFD did not give her enough time to work on
the issues that led to the neglect of Children. Mother argues that, even if CYFD
began assisting her immediately after the district court adopted the treatment plan in
March 2017, Mother would still have had just eleven months to address the causes
and conditions of neglect prior to the termination hearing in February 2018. Mother
contends this was insufficient time to sustain CYFD’s burden of proving reasonable
efforts, given the fifteen-month “time-limited reunification services” period set forth
under ASFA, which we consider as guidance in our reasonable efforts analysis. See

Patricia H., 2002-NMCA-061, 4 26. As emphasized in Patricia H., this guidance

“needs to remain flexible and must be harmonized with the requirements of state
law.” fd. 7 26. There is no requirement that CYFD must wait fifteen months before
filing a motion to terminate parental rights. See NMSA 1978, § 32A-4-29(A) (2009)
(“A motion to terminate parental rights may be filed at any stage of the abuse or
neglect proceeding by a party to the proceeding.” (emphasis added)).

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a4; Here, it appears CYFD attempted to coordinate services for Mother
eleven months—from March 2017, when the treatment plan was adopted, to
February 2018. Although we agree with Mother that the duration of assistance in

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viewed in a vacuum. As noted, “[w]hat constitutes reasonable efforts may vary with
a number of factors, such as the level of cooperation demonstrated by the parent and
the recalcitrance of the problems that render the parent unable to provide adequate
parenting.” Patricia H., 2002-NMCA-061, 9 23. And the “requirement [for CYFD
to provide services] must be read in context with the additional requirement that the
court must give primary consideration to the physical, mental, emotional welfare,
and needs of the children in proceedings to terminate parental rights.” Jn re Reuben
& Elizabeth O., 1986-NMCA-031, 735. Mother’s program at the Recovery Center
would require at least nine more months to complete. Children had been in foster
care for over thirteen months, and Ms. Sosa-Garner testified that it would be
detrimental for Children to have to wait another nine months. Thus, viewing the
totality of the evidence in the light most favorable to the judgment, we conclude that
substantial evidence of a clear and convincing nature supports the district court’s
conclusion that CYFD’s efforts were reasonable.

The Dissent

8; The dissent suggests that our analysis and conclusions disregard the

Dissent Op. 7 47. It is the dissent that misapprehends the governing standards.
26} Our analysis relies on well settled standards of appellate review previously

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in Keon H., 2018-NMSC-033, {4 35-38. These standards include directives that “we
must view [the evidence] in a light most favorable to affirmance[,]” and that “this
Court will not reweigh the evidence on appeal” or “substitute our judgment for that
of the [district] court as to any factual matter” or “assess the credibility of the
witnesses, deferring instead to the conclusions of the trier of fact.” Vanessa C., 2000-
NMCA-025, 4 24; see Keon H., 2018-NMSC-033, 9% 38, 51 (setting forth appellate
review standards). As the opinion recites, we ask “whether the [district] court’s
conclusion, when viewed in the light most favorable to the decision below, was
supported by substantial evidence, not whether the [district] court could have

reached a different conclusion.” Patricia H., 2002-NMCA-061, 4 31; see Keon H.,

| 38 (quoting Patricia H., 2002-NMC

A-061, 931). The dissent
does just the opposite, abandoning these standards in service of advocacy for a
preferred result based on the conclusion (as a matter of law, no less) that “[t]he short
duration of CYFD’s reunification efforts” renders those efforts unreasonable.
Dissent Op. 9 37; see id. 4 45 (CYFD’s failure to assist Mother in treatment after
August and throughout the remaining five months of this case renders its efforts
unreasonable in duration.”).

#7 The dissent’s substitution of its own factual findings for those of the district

court is evident throughout—from its selection of inferences contrary to the district

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termination hearing, including about events post-dating the hearing. See Dissent Op.
4 43 C{TThe record indicates that CYFD only made efforts to assist Mother in
remedying the underlying causes and conditions of neglect for a period of
approximately seven months.”); id. (“Some of the services that CYFD required as
part of the treatment plan were not available initially.”); id. 444 (‘Mother . .. passed
her first three drug tests through May 2017.”); id. € 46 (Mother began the program
at [the Recovery Center] on March 6, just a week after the termination hearing, and
had completed at least two months by the end of the record in this case.” (emphasis
added)).

28} It should go without saying that appellate courts may not render decisions
based on evidence not presented to the district court any more than they may reweigh
the evidence that actually was presented to the district court. See State ex rel.

Children, Youth & Families Dep’t v. Brandy S., 2007-NMCA-135, 9] 1, 32, 142

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705, 168 P.3d 1129 (disapproving of “the practice of taking judicial notice
the entire case file in TPR proceedings especially following the close of evidence”);

Flowers v. White’s City, Inc., 1992-NMCA-062, 47, [114 N.M. 73, 834 P.2d 950

the information they contain is evidence of record or that it is legally admissible.”),

see also Keon H., 2018-NMSC-033, 4 55 (reversing this Court’s decision where

evidence and failing to give deference to the district court’s determinations” and
affirming the district court’s order terminating parental rights where, “[clonsidering
the totality of the circumstances, there was substantial evidence for the district court
to find that the conditions and causes of [the c]hild’s neglect and abuse were unlikely
to change in the foreseeable future despite reasonable efforts by [CYFD]”).

293 Also evident throughout the dissent is its failure to give effect to the well-
established admonition that “our job is not to determine whether CYFD did
everything possible; our task is limited by our statutory scope of review to whether
CYFD complied with the minimum required under law.” Patricia H., 2002-NMCA-
061, 428. Our cases recognize that CYFD operates with “scarce resources.” See
State ex rel. Children, Youth & Families Dep’t v. Browind C., 2007-NMCA-023,
4 36, 141 N.M. 166, 152 P.3d 153 (stating that “government resources are limited
and that the state has a legitimate interest in making the best use of its limited
resources” (internal quotation marks and citation omitted)). They also caution that
“fpjarents do not have an unlimited time to rehabilitate and reunite with their
children” and that the “flexible” federal “guidelines” we consider in reviewing the
district court’s reasonableness determination “must be harmonized with the
requirements of state law[,|” which “allows a reunification plan to be maintained for
a maximum of fifteen months as well.” State ex rel. Children, Youth & Families

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Patricia H., 2002-NMCA-061, § 26; NMSA 1978, §§ 32A-4-25.1(C), (G) (1997,
amended 2016), -29(K.) (2003, amended 2009)) (emphasis added).

{30} The dissent’s statement that “(t]he farther we move from the [ASFA] fifteen-
month benchmark, the closer we get to an unreasonable result[,]” Dissent Op. 4 47,
is not a correct statement of law. While the ASFA guideline has been used as
“guidance in how we assess the duration of reasonable efforts,” it nevertheless is a
guideline, not a bright-line requirement. See Patricia H., 2002-NMCA-061, 7 26
(stating that “the use of such a guideline needs to remain flexible”). Further, the
intent of ASFA was to “encourage[] states to move more quickly to terminate
parental rights and give[] states a financial incentive to increase the number of
adoptions.” /d. Hence, rather than mandate a minimum period for reunification
services, ASFA limits the duration of such services. /d. This limit is also reflected in
the Children’s Code. See, e.g, Maria C., 2004-NMCA-083, 4 21 (stating that, like
ASFA, “{s}tate law allows a reunification plan to be maintained for a maximum of
fifteen months as well”); see also § 32A-4-29(A) (“A motion to terminate parental
rights may be filed at any stage of the abuse or neglect proceeding.”). Most
significantly, however, the reasonableness of CYFD’s efforts does not depend on
their duration alone, but on the “totality of the circumstances” which, as the dissent

acknowledges, may include “the level of cooperation demonstrated by the parent

adequate parenting.” Keon H., 2018-NMSC-033, 4 41 (internal quotation marks and
citation omitted). Also without basis in law are the dissent’s assertion that “CCYFD’s
recourse, if it believed further efforts would be unproductive, was to seek a finding
from the district court that further efforts would be futile” and the suggestion that
CYFD was required to obtain such a finding before initiating termination
proceedings. Dissent Op. { 45 (citing § 32A-4-28(B}(2\(a)). The statute contains no
such requirement, nor does any precedent. See § 32A-4-28(B)(2\(a) (requiring
showing of futility only where reasonable efforts are unnecessary).

31) The dissent’s reliance on Justice Vigil’s concurring opinion in Keon H. is
misplaced. As an initial matter, we are bound to recognize majority opinions as
binding precedent. See Maryland v. Wilson, 519 U.S. 408, 412-13 (1997) (stating
that neither dictum nor statements made in a concurrence constitute binding
precedent); Dababnah v. Keller-Burnside, 208 F.3d 467, 471 n.3 (4th Cir. 2000) (It
goes without saying that the majority opinion, not the gloss that the concurrence
seeks to place thereon, is controlling.”); Lendsay v. Cotton, 123 So. 2d 745, 746 (Fla
Dist. Ct. App. 1960) (°A concurring opinion has no binding effect as precedent; such
an opinion represents only the personal view of the concurring judge and does not
constitute the law of the case.”).

32) Second, nothing in either the majority or the concurring opinions in Keon 4.

unreasonable. While the majority in Keon H. stated that it was “helpful to look to
the distinction our Court of Appeals has drawn between ‘active’ efforts and ‘passive’
efforts” in termination cases to which the Indian Child Welfare Act applies, 2018-
NMSC-033, 4 42, it did not rely on that distinction in concluding that CYFD’s
efforts, “although imperfect, were reasonable.” id ] 42-43. For its part, the
concurring opinion in Keon H. explicitly states that “[nJeither ‘active’ nor ‘passive’
efforts are the equivalent of ‘reasonable’ efforts under Section 32A-4-28(B\{(2)";
“{tlhese standards are separate and distinct from the requirement that [CYFD] make
reasonable efforts to assist a parent”; and “reasonable efforts are efforts tailored to
the circumstances of a case.” 2018-NMSC-033, 7 62 (Vigil, J., concurring). And it
agrees with the majority that “[t]he totality of the circumstances sustained the district
court’s eventual determination that [CYFD] made reasonable efforts to assist [the
flather under Section 32-4-28(B\(2).” Keon H., 2018-NMSC-033, 7 57 (Vigil, F.,
concurring). In sum, the concurring opinion in Keon H. neither alters the standards
to be applied in reviewing a district court’s determination of reasonableness under
Section 32A-4-28(B\(2) nor mandates the conclusion advocated by the dissent.

33} Indeed, the recognition in Justice Vigil’s concurrence that “reasonable efforts
are efforts tailored to the circumstances of a case[,]” Keon H., 2018-NMSC-033,

{ 62, and its agreement that “[t]he totality of the circumstances sustained the district

dissent’s reliance on Alfonso M.-E. Alfonso M.-E. involved very different facts from
those presented to the district court in this case, including that “CYFD moved to
terminate [the flather’s parental rights one month after his deportation and
discontinued its communication with [the flather shortly thereafter[,]” 2016-NMCA-
O21, 4 64; the evidence presented did not include “any explanations or details . . .
regarding the extent or severity of [the flather’s history of alcohol or substance
abuse, such as past criminal convictions or the specific types of substances
involved[,]” id. { 40, but just “one inconclusive drug screen[,]” id. 437; and “the
evidence show[ed] that CYFD’s approach to the circumstances of [the flather’s
deportation foreclosed any possibility of achieving the goal of reunification[,|” id.

[ 55.

tai

34 Finally, the dissent’s suggestion that our decision reflects a failure to
comprehend the due process rights of parents or callous disregard for “the life-
changing consequences of these proceedings[,|” Dissent Op. { 47, is baseless and
unwarranted. These cases involve difficult and heartbreaking circumstances, but that
does not release us from our duty to apply the standards mandated by statute and
binding precedent, as the dissent fails to do.

CONCLUSION

35} For the foregoing reasons, we affirm the district court’s judgment terminating

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36 © ITIS SO ORDERED.

ma Nite

LINDA M/VANZI, Judge ©

F CONCUR:

MEGAN P. DUFFY, Judge (dissenting).

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part
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DUFFY, Judge (dissenting).
37} CYFD moved to terminate Mother’s parental rights eleven months after

removing Children from her care and after providing assistance targeted toward the

underlying cause of the neglect for only seven months. The short duration of

ry 4 sisxp i finan.

CYFD’s reunification efforts in this case renders them unreasonable, and I would

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reverse the district court. The majority having concluded otherwise, [ respectfully

dissent.

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recognized that natural parents have a fundamental liberty interest in the care,

custody, and management of their child, and that this interest “does not evaporate

their child to the [s]tate.” Santosky v. Kramer, 455 U.S. 745, 753 (1982); Keon F1.,

2018-NMSC-033, € 37 (“Parents have a fundamental liberty interest in the care and

deprived of that right.” (quoting State ex rel. Children, Youth & Families Dep't v.
Marlene C., 2011-NMSC-005, 4 37, 149 N.M. 315, 248 P.3d 863)). The Children’s

Code charges our courts with t

“fair hearing and their constitutional and other legal rights are recognized and
enforced.” NMSA 1978, § 32A-1-3(B) (2009). In keeping with this purpose, a

district court is required to find that CYFD made “reasonable efforts . . . to assist the

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parent in adjusting the conditions that render the parent unable to properly care for
the child” before parental rights may be terminated. Section 32A-4-28(B)(2).

439} What constitutes reasonable efforts is a subjective standard that “may vary
with a number of factors, such as the level of cooperation demonstrated by the parent
and the recalcitrance of the problems that render the parent unable to provide
adequate parenting.” Patricia H., 2002-NMCA-061, 4 23; see id. J 26 (stating that
“lt}hese services may include individual, group, and family counseling, substance
abuse treatment, mental health services, transportation, child care, and other
therapeutic services”). Our sufficiency of the evidence review must evaluate the
ongoing efforts that CYFD made to “engage the parent in a way that will reasonably
enable the parent to adjust the causes and conditions that led to the abuse and neglect
of the child.” Keon H., 2018-NMSC-033, 9 58 (Vigil, J., concurring).

{40} Weare instructed to consider the totality of the circumstances when reviewing
a district court’s determination. /d. | 41. This requires more than reviewing the list
of services that CYFD offered to Mother; courts must also consider when the

services were offered in the course of the proceedings, the duration of the services

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offered to the parent, and how long the parent was given to comply prior t
termination. See Alfonso M-E., 2016-NMCA-021, 4) 53-59 (considering these

factors as part of the totality of the circumstances and concluding that CYFD’s

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Neglect Act) Patricia H., 2002-NMCA-061, 9 24 (explaining that in determining
whether CYFD‘s efforts were reasonable, we also consider the duration of
reunification services provided to a parent by CYFD prior to resorting to
termination). Recently, in a special concurrence, Justice Vigil also indicated that the
type of services offered by CYIFD play a role in the analysis, saying that while
“aetive” efforts may not be required, “passive” efforts may not be sufficient te hilfil)
the reasonable efforts requirement either. Keon H., 2018-NMSC-033, 4 61-62
(Vigil, J., concurring) (“Neither ‘active’ nor ‘passive’ efforts are the equivalent of
‘reasonable efforts’ under Section 32A-4-28(B (23).

(443 With respect to the duration of CYFD’s efforts, Justice Vigil observed that
CYFD's responsibility is to “initiate and continually pursue communication and
efforts to assist the parent in treatment. These efforts are a component of due process
and consistent with the fundamental nature of parental rights.” Kean H., 2018~
NMSC-035, € 60 (Vigil, J., concurring) (citation omitted), We have expressed well-
founded concer in instances where CYFD has discontinued its efforts prematurely,

particularly when it has done so in less than one year. See Affonso M.-E., 2016-

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reunification efforts less than one year after taking custody of the child); Patricia

H., 2002-NMCA-061, 94] 28-29 (noting that CYFD largely failed to provide services

limited CYFD’s ability to do so arising from the district court’s concerns that
visitation was harmful to the child). And finally, while we have acknowledged that
CYFD is not required to make reunification efforts for an indefinite period of time,
we have consistently looked to the fifteen-month time period for reunification
services set forth under federal law as the benchmark in our reasonable efforts
analysis. Patricia EH, 2002-NMCA-061, € 26.

aaj In this case, CYFD removed Children from Mother's custody based on one
instance of “excessive discipline” and drug abuse by Mother, and was thereafter
tasked with addressing those conditions. See Alfonso M.-E., 2016-NMCA-021, 435
(TA treatment plan under the [Abuse and Neglect Act] identifies, addresses, and
attempts to correct those circumstances and conditions which rendered the child
abused or neglected.” (internal quotation marks and citation omitted)}). CYFD
entered a treatment plan for Mother on March 8, 2017, which contained the
following plan items: (1} random drug tests and hair analysis, (2) complete a
psychological evaluation and drug and alcohol assessment, (3) complete one-on-one
parenting training, (4) consistently attend scheduled visits and calls with Children,
(5) maintain stable housing, (6) maintain stable employment, and (7) maintain
weekly contact with CYFD. CYFD’s responsibility was to assist Mother in
accomplishing these goals and addressing the plan items through reasonable efforts.

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reasonable efforts “to assist the parent in adjusting the conditions that render the
parent unable to properly care for the child”).

443; Within the thirteen-month duration of this case, the record indicates that
CYPD only made efforts to assist Mother in remedying the underlying causes and
conditions of neglect for a period of approximately seven months. CYFD's efforts
to assist Mother from January until August were through passive referrals to
services. Although not stated within the treatment plan itself, Ms. Sosa-Garner
testified that CYFD made efforts to help Mother address her addiction by referring
her to Zia Consulting for psychological evaluation and drug and alcohol assessment,

Family Reunification Court, parenting classes, and individual counseling.’ Some of

ithe services that CYFD required as part of the treatment plan were not available

initially—parenting classes and a waiting list for housing that was “very long at the
moment.” The only active service that CYFD provided was transporting Mother to
monthly visits with Children, who were placed two hours away.

a5 On August 7, 2017—seven months after the children had been removed—
CYFD entered Mother into a residential rehabilitation facility in Clovis. Although
Ms. Sosa-Garner testified at the termination hearing that Mother had neve

negative in any of her drug tests, Mother points out on appeal that she passed her

3 Ms. Sosa-~Garer testified that Mother received individual counseling,
PDAP, AA, and NA through Family Reunification Court, which Mother attended
from August to September 2017.

first three drug tests through May 2017. She relapsed at some point and began to test
positive again for methamphetamine. Mother stayed in rehab for six days but left
because she thought she had secured a job. This may well reflect a choice between
accomplishing two competing parts of her treatment plan: employment and drug
treatment; as CYFD noted, Mother was not eligible for housing assistance without 4
steady job. Ms. Sosa-Garner stated that these were the only efforts that CYFD made
to provide assistance to Mother with respect to drug rehabilitation. There was no
evidence presented at the termination hearing that CVF D made any further effort to
address Mother's addiction after she was dismissed from Family Reunification Court
on September 14, 2017.7 CYFD moved to terminate Mother’s parental rights on
December 5, 2017.

48) We have never said that CYFD is excused from its responsibility to continue
to pursue rehabilitation efforts because a parent suffers a relapse in the course of
addiction recovery. CYFD’s recourse, if it believed further efforts would be
unproductive, was to seek a finding from the district court that further efforts would

be futile. See § 32A-4-28(B 2a) (allowing CYFD to discontinue efforts if there is

* The record indicates that CYFD continued to transport Mother to monthly
visits with Children and continued to drug test her through November 2017, but there
was no testimony to suggest, nor do I consider, that these efforts were geared toward
rehabilitation. Drug testing and transporting Mother to see Children are not directed
to assist Mother “in remedying the conditions and causes of neglect and abuse.”
Keon H., 2018-NMSC-033, 4 41.

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a clear showing that such efforts would be futile). CYFD did not do so before the
termination hearing. Instead, CYFD moved te terminate Mother’s parental rights
only eleven months after filing its abuse and neglect petition in January 2017, and
the district court terminated Mother’s parental rights in February 2018, just thirteen
months after Children had been removed. CYFD’s failure to assist Mother in
treatment after August and throughout the remaining five months of this case renders
its efforts unreasonable in duration. As we observed in Alfonso M.-E., “[t]his time
period expired well before the fifteen-month period of time-limited reunification
services established by ASFA. We acknowledge CYFD’s duty to expeditiously
handle termination cases, but its actions suggest that it did not properly assist [the
parent] in ameliorating the causes and conditions of [the c]hild’s neglect.” 2016-
NMCA-021, { 59 (alteration, internal quotation marks, and citation omitted).

46} Although CYFD and the majority conclude that this result was justified
because they view Mother as having failed “to consistently engage in services,” this
is not a case where the parent did absolutely nothing to work toward reunification.
Cf. Keon H., 2018-NMSC-033, 4 48 (“{The flather has continuously failed to show
any desire or willingness to address the conditions and causes that brought [the cjhild
into custody.”). Mother made efforts to comply with the treatment plan by trying to

gain stable employment and working in the fields in the interim, attending Family

12
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visits with Children. Mother expressed a strong desire to maintain her bond with
Children. After her relapse and unsuccessful attempt at rehabilitation in August,
Mother was accepted into New Mexico Women’s Recovery—-a nine-month
rehabilitation program in Albuquerque that would address all of the components of
her treatment plan. As CYFD states, “the parties’ understanding was that Mother
would be enrolled in the Women’s Recovery Center’s treatment program at the end
of January 2018[.]? At the termination hearing, Ms. Sosa-Garner testified that
Mother had been accepted into the program two weeks before the termination
hearing and that she was waiting on transportation. She further testified that
transportation was out of Mother’s control and CYFD had not verified when Mother
would begin the program.

Court: I need a bit of clarification. When you said that
[Mother] had a bed date at New Mexico Women’s
Recovery at the end of January but she’s waiting for

transportation?

Sosa-Gamer: Now she’s waiting for transportation to pick her up.
That is the only information that I got from

{Mother]. Her probation officer isn’t answering my
calls.

Court: So is she supposed to arrange her own
transportation or is probation arranging that?

Sosa~Garner: It is New Mexico Women’s Recovery picking her
up.

Court: And she’s been waiting over four weeks now for
that?

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Sosa~Garner: No Ma’am. She just got accepted into New Mexico
Women’s Recovery two weeks ago.

Court: But she said she had a bed date at the end of
January?
Sosa-Gamer: Yes Ma’am. Her probation officer stated her bed

date but I couldn’t get a hold of him to give me
clarification on that question.

Court: So you don’t know when she might actually be
going to rehab?

Sosa-Garner: Right.
The district court appeared to rely on Ms. Sosa-Garner’s testimony and used the lack
of concrete information against Mother in its ruling, stating,

[Mother] attended six days of rehab and that she has the possibility, or

the requirement under her criminal sentence, of going to rehab again.

What concerned me the most about that was that I heard a bed date of

the end of January, but we don’t actually know when she is going to go.
See Alfonso M.-E., 2016-NMCA-021, 7 37 (“The district court... erred by relying
on the /ack of evidence . .. as if it were, in actuality, evidence supporting its finding
that [the parent] was unlikely to alleviate his alcohol and substance abuse problem
in the foreseeable future.”). | am troubled that CYFD, rather than assisting Mother
with her own effort to rehabilitate, ceased its efforts and sought to terminate her
rights on grounds that she failed to comply with their plan. See id.
not considered for purposes of this appeal, I note that the CASA report following the

termination hearing indicated that Mother began the program at New Mexico

Women's Recovery on March 6, just a week after the termination hearing, and had
completed at least two months by the end of the record in this case.

fan | fear that the approach taken by the majority and CYFD loses sight of the
life-changing consequences of these proceedings. There exists a threshold where
termination proceedings move too quickly and risk permanently severing the parent-
child relationship without giving the parent an opportunity to address the underlying
concerns, in derogation of the parent’s fundamental rights. The farther we move
from the fifleen-month benchmark, the closer we get to an unreasonable result. And
it cannot be overstated that the result is an irreversible deprivation of a fundamental
right. While we often justify CYFD’s haste in terms of protecting the best interests
of children, the unstated implication is that their best interests are to grow up without
Ji their natural parent. But we “cannot presume that a child and his parents are
adversaries....[T]he child and his parents share a vital interest in preventing
erroneous termination of their natural relationship.” Senrosky, 455 US. at 760.
Before we impose such an outcome, we must have greater certainty that the parent
is unwilling or unable to progress. That is the essence of the due process guaranteed

to parents-—that their fundamental right to raise their children will not be taken a

way
prematurely, without a reasonable and fair opportunity to address the State's
concerns. That was not the case here. | cannot conclude that CYFD met its burden

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the short duration in which it attempted to treat the major underlying condition and
cause of the abuse and neglect charge. For the foregoing reasons, | would reverse

the district court.

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Vi Uday) a Laukha
MEGAN P. DUFFY, Judge 7a

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March 4, 2019- CYFD v. Veronica G., No. A-1-CA-37326

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