State ex rel. CYFD v. Alfonso M.-E. ( 2015 )

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 12:59:05 2016.03.02
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2016-NMCA-021
Filing Date: December 14, 2015
Docket No. 33,896
STATE OF NEW MEXICO ex rel.
CHILDREN, YOUTH AND FAMILIES
DEPARTMENT,
Petitioner-Appellee,
v.
ALFONSO M.-E.,
Respondent-Appellant,
and
IN THE MATTER OF URIAH F.-M.,
Child.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
William E. Parnall, District Judge
Children, Youth & Families Department
Charles E. Neelley, Chief Children’s Court Attorney
Kelly P. O’Neill, Children’s Court Attorney
Albuquerque, NM
for Appellee
Law Offices of Nancy L. Simmons, P.C.
Nancy L. Simmons
Albuquerque, NM
for Appellant
Peter G. Tasso Law Firm, P.C.
Peter G. Tasso
1
Albuquerque, NM
Guardian Ad Litem
OPINION
WECHSLER, Judge.
{1} Father, Alfonso M.-E., appeals from the district court’s judgment terminating his
parental rights to Child, Uriah F.-M., under two statutory provisions of the Abuse and
Neglect Act (ANA), NMSA 1978, §§ 32A-4-1 to -34 (1993, as amended through 2015). The
court also terminated the rights of Child’s mother, Brandi S. (Mother), but she has not
appealed. Father challenges the district court’s termination pursuant to Section 32A-4-
28(B)(1) and argues that clear and convincing evidence did not support the district court’s
finding that he abandoned Child. Father also raises sufficiency of evidence claims in
appealing the district court’s termination on the basis of Section 32A-4-28(B)(2). In this
regard, Father contends that the district court erred in finding that (1) he neglected Child; (2)
the causes and conditions of neglect were unlikely to change in the foreseeable future; and
(3) the Children, Youth and Families Department (CYFD) made reasonable efforts to assist
Father in adjusting the conditions that rendered him unable to properly care for Child. Father
also contends that CYFD violated his due process rights by failing to provide him adequate
translation services and, finally, argues that he was denied effective assistance of counsel.
{2} We hold that our Supreme Court’s opinion in In re Grace H., 2014-NMSC-034, 335
P.3d 746 renders the district court’s termination of Father’s parental rights for abandonment
under Section 32A-4-28(B)(1) improper. We also hold that the record is not sufficient to
support, by clear and convincing evidence, that the causes and conditions of neglect were
unlikely to change in the foreseeable future or that CYFD made reasonable efforts to assist
Father in adjusting the conditions that rendered him unable to properly care for Child under
Section 32A-4-28(B)(2). Because we reverse the district court’s termination of Father’s
parental rights on these grounds, we do not reach Father’s due process and ineffective
assistance of counsel arguments.
BACKGROUND
{3} Child was born on August 20, 2012 to Father and Mother. On January 24, 2013,
CYFD took Child into custody after receiving an emergency referral alleging physical
neglect and a lack of adequate supervision of Child by Mother, who reportedly had been
arrested on outstanding warrants. CYFD also took Child’s half-brother, Isaac K., born April
11, 2005, into custody and placed the two with the same foster family. Father is not the
biological father of Child’s half-brother.
{4} On January 28, 2013, CYFD filed a neglect and abuse petition against Father and
Mother, alleging that Child was without proper parenting or parental supervision due to
Mother’s substance abuse issues, her inability to provide safe and stable housing, and her
2
criminal lifestyle. As to Father, the petition alleged that he abandoned Child and had “failed
to protect [Child] from [M]other’s drug abuse, homelessness, criminal conduct and neglect.”
The petition further alleged that Father’s location was unknown. It was determined at the
initial custody hearing on February 6, 2013 that Father was incarcerated and was subject to
an immigration hold. Father had been incarcerated since December 2012 due to his arrest for
driving while under the influence of intoxicating liquor or drugs.
{5} At the adjudicatory and dispositional hearing held on March 8, 2013, Father
appeared with the aid of an interpreter and entered a plea of no contest to the allegations in
CYFD’s petition, acknowledging that Child was a “neglected” child pursuant to Section
32A-4-2(E)(2), and that Father had “failed to provide for [Child’s] basic necessities.” The
district court entered a stipulated judgment and disposition against Father on March 28,
2013. The treatment plan developed by CYFD for Father and adopted by the court indicated
that Father had “expressed a strong desire to maintain his bond with [Child].” The plan
specified that Father was required to complete substance abuse, mental health, psychosocial,
and domestic violence assessments and follow all recommendations made by those
assessments. The plan also mandated that Father “will provide random [urinalyses] as
determined by [CYFD].” Further, the treatment plan included the requirements that Father
maintain weekly contact with CYFD, obtain safe and stable housing, create a financial plan
to ensure Child’s basic needs are met, engage in parenting education, participate in family
time at CYFD’s discretion, and provide letters, photos, and other memorabilia for Child’s
life book. For CYFD’s part, the treatment plan required CYFD to “make appropriate
recommendations[,] . . . make referrals[,] and monitor [Father’s] progress.”
{6} Father spoke through an interpreter at the initial judicial review hearing on May 17,
2013 to inform the court that he was currently incarcerated and serving his sentence for his
DWI conviction and that he might face immigration detention and deportation to Mexico
following completion of his sentence. CYFD’s judicial review report, which the court
adopted by reference, indicated that Father had “done as much as possible considering his
current incarceration and [immigration] hold” but that Father was “also waiting to be
deported, and may not be able to be a consistent caretaker for [Child].” The report also noted
that Father had “engaged in [an addiction treatment program], but hasn’t been able to do any
further substance abuse programs due to his current incarceration and [immigration] hold.”
The report additionally stated that Father “has written letters to [his permanency planning
worker (PPW)] regarding [Child] and his [incarceration] status” and provided CYFD the
names of Father’s relatives for Child’s possible placement. The court ordered CYFD to
implement its permanency plan of reunification.
{7} In August 2013, Father was transferred from New Mexico to a federal holding
facility in El Paso, Texas for immigration processing. He was subsequently deported to
Mexico in September 2013. Father called his PPW, Frances Steckbauer, and left her a
voicemail after he arrived in Mexico. During this time, CYFD requested the Mexican
Consulate’s assistance in conducting a psychological evaluation of Father and a study of
Father’s sister’s home in Mexico where Father was living. Additionally, with the help of the
3
Consulate, Steckbauer coordinated a telephone call with Father in October 2013 and told
Father to maintain monthly communication with CYFD.
{8} Shortly thereafter, on October 28, 2013, CYFD moved to terminate Father’s parental
rights to Child. CYFD asserted that Father, “[w]ithout justifiable cause, . . . ha[d] not
communicated with or provided support for [Child] in over 3 months” and “ha[d] abandoned
[Child].” Moreover, CYFD argued, Father was “in substantial non-compliance with his
treatment plan[.]” Among Father’s failures, CYFD stated that Father had not completed the
required assessments, provided proof to CYFD that he had obtained safe and stable housing,
provided random urinalyses, maintained weekly contact with CYFD, or discussed his history
with CYFD. CYFD also asserted that Father had not provided it with names of relatives for
possible placement with Child, participated in family time with Child, provided Child with
memorabilia for his life book, or created a financial plan to ensure Child’s needs would be
met.
{9} The following week, on November 4, 2013, the court held the initial permanency
planning hearing. Father was not present at the hearing but was represented by his attorney
who notified the court that Father had been deported. CYFD informed the court that CYFD
had stayed in contact with the Consulate, which provided CYFD an address and the phone
number for Father in Mexico as well as the names of some of Father’s relatives living in
Mexico. However, CYFD further represented that Father had made no attempts “to contact
[CYFD] at all [after his deportation], even though Ms. Steckbauer made sure [Father] had
all of [CYFD’s] contact information.” Although the court approved changing CYFD’s plan
from reunification to adoption, the court explicitly asked CYFD to “continue trying to open
a line of communication with [Father] to determine what, if anything, he wants to do to work
his plan.”
{10} In accordance with CYFD’s request through the Consulate, Mexican officials
conducted a study of Father’s sister’s home on November 5, 2013. Father, who was
employed as a day laborer, provided his financial information as part of the study. A
November 6, 2013 urinalysis administered in Mexico indicated that Father tested negative
for amphetamines, cocaine, and marijuana. By December 2013, Father had also completed
a psychological evaluation that recommended he engage in therapy sessions. In a letter to
the Mexican Consulate dated December 16, 2013, a government official from Mexico’s
social service agency in Father’s municipality explained that Father would be offered six
sessions of therapy in accordance with the psychological evaluation recommendation and
that the first session was scheduled for December 18, 2013. The official additionally
referenced the Consulate’s request for Father to attend parenting classes but indicated that
Father’s municipality did “not have an institution capable of offering them,” and therefore
proposed that “[parenting] classes be substituted by psychological therapy where facts based
on paternity will be taken into consideration.”
{11} Father’s termination of parental rights trial began on January 10, 2014. Father
appeared telephonically and was assisted by an interpreter. In its opening argument, CYFD
4
argued that Father had failed to comply with his treatment plan by not completing “even the
minimal things he could have done while he was incarcerated” in New Mexico and that
Father had “only done the minimal that he can since he left the United States.” CYFD
pointed out that Father had not completed a mental health assessment “until just recently”
and that he had not completed substance abuse assessment “until very recently.” CYFD also
argued that Father “may have done one [urinalysis] through the Mexican Consulate” and
“only recently acquired safe and stable housing.” CYFD also cited Father’s failure to
maintain weekly contact with CYFD, provide support for Child, give any gifts to Child, and
communicate with Child as reasons supporting termination. CYFD also told the court that
Child has no bond with Father and has not heard Father’s voice or seen Father since the
inception of the case.
{12} Steckbauer testified that she developed Father’s treatment plan based on the
circumstances of his incarceration as well as his disclosures about his DWI and substance
abuse history. Steckbauer explained that she visited Father monthly during his incarceration
in New Mexico until August 2013 and that CYFD had mailed Father a copy of his treatment
plan after he was deported. She testified that since Father’s deportation, she had two
telephone calls with Father that were facilitated by the Mexican Consulate to assess Father’s
situation. Steckbauer stated that Father completed the home study and psychological
evaluation that CYFD requested through the Consulate “but [Father] hasn’t completed any
follow-up services.” She also stated that Father submitted a urinalysis but had “not
specifically completed a substance abuse assessment” and that she had not received proof
of Father’s completion of an addiction treatment program he engaged in during his
incarceration in the United States. Further, Steckbauer said that Father had not completed
parenting education and that he informed her during their last telephone call in December
2013 that he was “still waiting to find out when he was going to start parenting classes and
therapy.” Although Father had provided his financial information as part of the home study
in Mexico, Steckbauer stated that he had not sent Child any financial support. Father was
living with his mother and sister in Mexico, Steckbauer additionally testified, but he had not
provided CYFD their names as potential placements for Child while Father was incarcerated
in the United States. In summary, she stated that “apart from no longer being in custody”
Father had made no progress in eliminating causes and conditions of Child’s neglect.
{13} In Steckbauer’s opinion, CYFD would have no justification to split up Child’s
current placement with his foster family, where Child had lived with his half-brother since
the inception of the case. She stated that Child was very young when he entered the home,
that “this is the home that [Child] knows[,]” and that “he’s very comfortable.” Steckbauer
also testified that Child also had specific needs related to his speech development and was
receiving early intervention services. During her few phone calls with Father, Steckbauer
“worked to keep him informed of [Child’s] well-being,” but she stated that Father has not
had any “hands-on experience” in addressing Child’s needs. Steckbauer testified that Father
told her that he cares for Child but that Father stated that he has not had much contact with
Child because of Father’s incarceration. She said that Father had not participated in family
time with Child or had any communication with Child since CYFD took Child into custody.
5
Steckbauer stated that Father wrote to Child during Father’s incarceration but that he had not
sent any letters to Child since Father was deported. Steckbauer further testified that she had
explored the possibility of Father’s relatives in the United States serving as possible
placements for Child, but they were either non-responsive to her requests or their legal status
precluded their eligibility. According to Steckbauer, it would not be safe to return Child to
Father because there had been no “direct communication” between Father and Child and that
“it would be harmful to [Child] to place him suddenly with someone who he has no
relationship with.”
{14} During cross-examination, Steckbauer testified that the Consulate had sent her an
email with Father’s home study and urinalysis results, but she admitted that she had not seen
Father’s psychological evaluation. She did not recall the date of the evaluation and did not
have a copy of the evaluation in her file. Steckbauer also testified that she had not seen the
December 18, 2013 letter regarding Father’s therapy sessions. She stated that the evaluation
and letter may be included in a packet of documents that she recently received from the
Consulate, but she had not yet reviewed the documents. Nevertheless, Steckbauer testified,
she knew the outcome of the evaluation because in December 2013 she had “a thorough
conversation” with Father and the Consulate’s protective services staff about the results.
However, she indicated that her discussion with the Consulate’s staff did not cover the
December 18, 2013 letter. Father’s counsel attempted to introduce Father’s psychological
evaluation and the December 16, 2013 letter regarding Father’s therapy sessions, but because
the documents had not been translated from Spanish into English, CYFD stipulated to a
continuance of the trial.
{15} Before trial resumed in February 2014, CYFD filed an amendment to its motion for
termination, incorporating the grounds alleged in its original motion and asserting the
additional ground that Father had abandoned Child. The court also held a subsequent
permanency hearing on January 27, 2014. Father appeared telephonically and was assisted
by an interpreter. CYFD informed the court that its amendment to its motion for termination
was based on information CYFD received at the trial, specifically that Father had not
contacted Child or provided support for Child. CYFD also argued that the psychological
evaluation Father received in Mexico recommended that he receive various types of
counseling but that Father had done nothing to obtain the services. In its permanency hearing
order, the court found that Father “made some efforts to comply with and cooperate in the
treatment plan” but that Father had not made progress toward alleviating the causes that
precipitated CYFD’s need to take custody of Child. The court adopted CYFD’s latest
treatment plan and also granted CYFD’s amendment to its termination motion.
{16} Steckbauer’s testimony resumed on the second and final day of the termination trial,
February 13, 2014. Her testimony revealed that her final conversation with Father occurred
in early December 2013, prior to her receipt of Father’s psychological evaluation and before
Father began his therapy sessions. She testified that she talked with Father about scheduling
the therapy sessions recommended by the psychological evaluation and that she asked Father
to address parenting issues and his substance abuse history during the sessions. Steckbauer
6
also informed Father that she had received the home study, but she did not discuss the results
of the study with Father or notify him of any additional information that CYFD needed. At
that time, Father inquired about Child, expressed that he wanted Child with him in Mexico,
and asked Steckbauer for a picture of Child, which Steckbauer stated she did not send to
Father.
{17} Father’s counsel introduced a January 30, 2014 letter from the Mexican psychologist
who had conducted Father’s psychological evaluation. The letter, which Steckbauer said she
had received from the Consulate, stated that Father “completed the psychological therapy
[sessions] on January 23, of this year, showing favorable control of emotions[.] Likewise,
regarding the topic of [parenting] covered in therapy [sessions], [Father] is capable of being
in charge of [Child].” Given that parenting classes were not available in Father’s village in
Mexico, Steckbauer testified that she believed that Father complied with the alternative
recommendation to address parenting issues in his therapy sessions and that Father
“addressed parenting to the best of his ability” in accordance with his treatment plan.
Nevertheless, Steckbauer testified that she did not agree with the psychologist’s conclusion
about Father’s parenting capability. For example, she stated that the letter did not alleviate
her concerns about Father’s “impulsivity” issues that were identified as part of the
psychologist’s initial diagnosis. However, Steckbauer testified that she never asked Father
to address impulsivity issues in his therapy sessions and that she had not communicated with
Father since their December 2013 conversation. Steckbauer stated that she was unable to set
up an appointment to speak with Father in January 2014 “because of [her] caseload.”
{18} During redirect examination, CYFD elicited testimony from Steckbauer that was
critical of the home study and psychological evaluation requested through the Consulate.
With regard to the home study, Steckbauer testified that the study did nothing to explore
Father’s possible criminal history or whether there had been abuse or neglect allegations
against Father in Mexico. She also said that she had no knowledge of how long it took
Mexican investigators to complete the home study, whether investigators had interviewed
members of Father’s family outside of the home, or whether investigators had explored
“medical issues” of anyone in Father’s family. Turning to Father’s psychological evaluation,
Steckbauer said that she had never seen a psychological evaluation “as short as [Father’s].”
She testified that out of the “innumerable” psychological evaluations she had reviewed as
a social worker, none of them had lacked “diagnosis one through four diagnoses” or a
“global assessment of functioning.” Father’s evaluation failed to include these assessments
and, in her experience as a social worker, she had never seen someone pass domestic
violence, parenting education, and substance abuse areas with six sessions of therapy. She
also testified that the urinalysis provided by Father did not satisfy her need to know whether
Father was using illegal substances or alcohol.
{19} At the conclusion of testimony, the court terminated Father’s parental rights to Child.
In its judgment, the court found that there was clear and convincing evidence that (1) Father
abandoned Child, (2) Father had not alleviated the conditions and causes of neglect, (3) the
conditions and causes of neglect were unlikely to change in the foreseeable future, and (4)
7
CYFD made reasonable efforts to assist Father in adjusting those conditions. The court
further found that termination “would promote the physical, mental, and emotional welfare
and needs of [Child].” This appeal followed.
TERMINATION FOR ABANDONMENT UNDER SECTION 32A-4-28(B)(1)
{20} As an initial matter, we address the district court’s termination of Father’s parental
rights on grounds of abandonment under Section 32A-4-28(B)(1). Father advances a
sufficiency of evidence claim to attack the district court’s judgment regarding his
abandonment of Child. However, our Supreme Court’s opinion in In re Grace H. is
controlling legal authority that dictates our analysis of this issue on appeal.
{21} The ANA’s definition of “abandonment” encompasses “instances when the 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.” Section 32A-4-2(A)(2)(a). Section 32A-4-
28(B)(1) imposes the mandatory requirement that a court terminate parental rights if “there
has been an abandonment of the child by his parents[.]” CYFD relied heavily on Father’s
failure to send gifts, support, or letters to Child, except for one letter in April 2013, as
evidence in support of termination on grounds of abandonment. See In re Adoption of Doe,
1976-NMCA-084, ¶ 73, 89 N.M. 606, 555 P.2d 906 (“The typical kinds of conduct which
constitute abandonment are the withholding of parental presence, love, care, filial affection
and support and maintenance.” (internal quotation marks and citation omitted)). In its
findings of fact supporting termination, the district court specified that Father “has had no
contact and provided no support for [Child] for a period of at least three months prior to the
commencement of the trial in this case . . . [Father] did not provide any justification for
failing to contact or provide support for [Child].”
{22} In In re Grace H., our Supreme Court curtailed the statutory requirement that a court
“shall terminate parental rights” under Section 32A-4-28(B)(1) if a child has been
abandoned. The intent of the Legislature, our Supreme Court explained, is that Section 32A-
4-28(B)(1) is “to be used when there is no parent present with whom [CYFD] could work
towards reunification prior to termination.” In re Grace H., 2014-NMSC-034, ¶ 41. The
Court therefore held that Section 32A-4-28(B)(1) applies “where a parent is absent prior to
termination.” In re Grace H., 2014-NMSC-034, ¶ 43. Conversely, the Court held that
Section 32A-4-28(B)(2) “is to be used where a parent is present and expresses a legitimate
desire to take responsibility for a child prior to termination.” In re Grace H., 2014-NMSC-
034, ¶ 43. Section 32A-4-28(B)(2) imposes a separate statutory trigger for the termination
of parental rights when abandonment of a child has occurred. See State ex rel. Children,
Youth & Families Dep’t v. Christopher B., 2014-NMCA-016, ¶ 9, 316 P.3d 918 (“Abuse or
neglect and abandonment are separate and independent grounds for the termination of
parental rights, and they have a distinct set of statutorily created requirements.”). That
section requires termination of parental rights when a “court finds that the conditions and
causes of the neglect and abuse are unlikely to change in the foreseeable future despite
8
reasonable efforts by [CYFD] or other appropriate agency to assist the parent in adjusting
the conditions that render the parent unable to properly care for the child.” Section 32A-4-
28(B)(2); see § 32A-4-2(E)(1) (defining a “neglected child” as a child “who has been
abandoned by the child’s parent, guardian or custodian”).
{23} In this case, the motions CYFD filed with the district court and the district court’s
judgment failed to identify which statutory mechanism was used to terminate Father’s
parental rights on the basis of abandonment. Our review of the record nonetheless reveals
that CYFD proceeded under a theory of abandonment pursuant to Section 32A-4-28(B)(1)
in moving to terminate Father’s parental rights. In its closing argument, CYFD specifically
stated that “the abandonment statute is mandatory” and requires the court to terminate
parental rights if a parent has abandoned his or her child. Moreover, at the conclusion of
trial, the district court found that Child was abandoned as defined under Section 32A-4-
2(A)(2)(a) and ultimately determined that Section 32A-4-28 required the court to terminate
Father’s parental rights. Therefore, in view of In re Grace H., the district court’s use of
Section 32A-4-28(B)(1) to terminate Father’s parental rights on the basis of abandonment
was improper. The record clearly supports that Father was present prior to the district court’s
termination and that Father expressed a legitimate desire to take responsibility for Child. See
State ex rel. Children, Youth & Families Dep’t v. Melvin C., 2015-NMCA-067, ¶ 23, 350
P.3d 1251 (interpreting In re Grace H.’s use of “legitimate desire” as “referenc[ing] a parent
who is present and willing to participate, even if they do so late in the game, so long as they
do so prior to termination” (internal quotation marks and citation omitted)).
{24} It is important to note that the district court did not terminate Father’s rights based
on presumptive abandonment. Accordingly, our holding does not reach the question of
whether presumptive abandonment was an appropriate basis for termination under the
specific circumstances of this case. See, e.g., Section 32A-4-28(B)(3) (providing that a court
shall terminate parental rights if certain conditions exist that create a presumption of
abandonment that has not been rebutted); see also In re Grace H., 2014-NMSC-034, ¶¶ 36,
38 (stating that presumptive abandonment is distinct from abandonment under Section 32A-
4-28(B)(1) and Section 32A-4-28(B)(2) and that presumptive abandonment was not
applicable to the analysis of the case).
EVIDENCE SUPPORTING THAT THE CAUSES AND CONDITIONS OF
NEGLECT WERE UNLIKELY TO CHANGE IN THE FORESEEABLE FUTURE
UNDER SECTION 32A-4-28(B)(2)
{25} Father also challenges the sufficiency of the evidence underlying the district court’s
judgment terminating his parental rights to Child under Section 32A-4-28(B)(2), specifically
arguing that clear and convincing evidence did not exist to prove that (1) Father neglected
Child, (2) the causes and conditions of neglect were unlikely to change in the foreseeable
future, and (3) CYFD made reasonable efforts to assist Father in adjusting the conditions that
rendered him unable to properly care for Child.
9
{26} “Terminating parental rights implicates rights of fundamental importance.” State ex
rel. Children, Youth & Families Dep’t v. Hector C., 2008-NMCA-079, ¶ 11, 144 N.M. 222,
185 P.3d 1072. Accordingly, clear and convincing evidence is the standard of proof for
termination of parental rights cases. Section 32A-4-29(I); State ex rel. Children, Youth &
Families Dep’t v. Lance K., 2009-NMCA-054, ¶ 16, 146 N.M. 286, 209 P.3d 778. To meet
the clear and convincing evidence standard, the evidence “must instantly tilt 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.” In re Adoption of Doe, 1982-
NMCA-094, ¶ 31, 98 N.M. 340, 648 P.2d 798 (internal quotation marks and citation
omitted). In order to analyze Father’s claims of evidentiary sufficiency, we must determine
whether the district court’s decision is supported by substantial evidence of a clear and
convincing nature. State ex rel. Children, Youth & Families Dep’t v. Patricia H., 2002-
NMCA-061, ¶ 22, 132 N.M. 299, 47 P.3d 859. “Substantial evidence is relevant evidence
that a reasonable mind would accept as adequate to support a conclusion.” State v. Laguna,
1999-NMCA-152, ¶ 7, 128 N.M. 345, 992 P.2d 896. On appeal, this Court will “not reweigh
the evidence or substitute our judgment for that of the trial court on factual matters or on
matters of credibility.” State ex rel. Children, Youth & Families Dep’t v. William M., 2007-
NMCA-055, ¶ 59, 141 N.M. 765, 161 P.3d 262. “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.” Hector C., 2008-
NMCA-079, ¶ 11 (internal quotation marks and citation omitted).
{27} The ANA requires that CYFD carry the clear and convincing evidentiary burden of
proof in termination of parental rights cases. Under Section 32A-4-28(B)(2), CYFD must
establish that a child has been neglected or abused as contemplated by the ANA. Moreover,
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] or other appropriate
agency to assist the parent in adjusting the conditions that render the parent unable to
properly care for the child.” Section 32A-4-28(B)(2). CYFD must also demonstrate that
termination serves “the physical, mental and emotional welfare and needs of the child,
including the likelihood of the child being adopted if parental rights are terminated.” Section
32A-4-28(A); see Patricia H., 2002-NMCA-061, ¶ 21.
A. Finding of Neglect
{28} Father first contends that there was not clear and convincing evidence to support the
district court’s finding that he neglected Child because Father’s plea and the court’s
adjudication under Section 32A-4-2(E)(2) were based solely on his incarceration status.
Father argues that his subsequent release from incarceration in the United States ameliorated
the basis for neglect. We disagree.
{29} Our standard of review for the district court’s adjudication of neglect “is a narrow
one.” In re Termination of Parental Rights of Eventyr J., 1995-NMCA-087, ¶ 3, 120 N.M.
463, 902 P.2d 1066. Father suggests that evidence that arose after the district court’s
10
adjudication of neglect should nullify the court’s finding, but our review is restricted “to a
determination of whether the district court could have found [neglect] based upon the
evidence before it.” State ex rel. Children, Youth & Families Dep’t v. Shawna C., 2005-
NMCA-066, ¶ 7, 137 N.M. 687, 114 P.3d 367. We therefore reject Father’s argument that
his release from jail after the district court’s adjudication of neglect is a dispositive legal
ground on which we may reverse the court’s finding.
{30} The district court adjudicated Child as neglected by Father pursuant to Section 32A-
4-2(E)(2). That section provides that a “neglected child” is a child “who is without proper
parental care and control or subsistence, education, medical or other care or control
necessary for the child’s well-being because of the faults or habits of the child’s parent . .
. or the failure or refusal of the parent . . . when able to do so, to provide them[.]” Id. Father
pleaded no contest to the neglect allegations, and the district court accepted Father’s plea
after inquiring as to the factual basis for Father’s admission. See Rule 10-342(D) NMRA
(“The court shall not enter judgment upon an admission, including the entry of a no contest
plea . . . without making such inquiry as shall satisfy the court that there is a factual basis for
the admission[.]”). The court found that Father had “failed to provide for [Child’s] basic
necessities[,]” and the court adopted CYFD’s position that Father was “unable to care for
[Child] in a safe and stable environment due to his incarceration.”
{31} It is true that Father’s incarceration status alone is not sufficient for the district court
to find that Father neglected Child. See Shawna C., 2005-NMCA-066, ¶ 30 (concluding that
the ANA “does not permit a court to find abuse or neglect based solely on a parent’s
[incarceration] status”). However, despite Father’s incarceration at the time of the district
court’s adjudication, he nevertheless had a continuing legal obligation to provide proper care
for Child. “When a parent is incarcerated and unable to fulfill ordinary parental duties, the
court should consider whether the parent has pursued other opportunities and avenues that
could be available in order to carry out such duties to the best of his or her ability.” Hector
C., 2008-NMCA-079, ¶ 23. Although the record of the proceedings below indicates that
Father’s inability to care for Child arose from his incarceration, Father did not provide
financial support for Child or make other arrangements for Child’s care or placement while
Father was incarcerated in the United States. Based on this evidence, substantial evidence
supported the district court’s finding that Father neglected Child.
B. Causes and Conditions of Neglect
{32} Father next argues that clear and convincing evidence did not support the district
court’s finding that the causes and conditions of Child’s neglect were unlikely to change in
the foreseeable future. Father argues that (1) he promptly cooperated with his treatment plan
requirements after his deportation, (2) the court improperly relied on evidence of his past
history to support the termination of his parental rights, (3) CYFD’s assertions regarding his
mental health diagnosis were speculative and failed to comport with the court’s original
finding of neglect, and (4) the district court’s reliance on CYFD’s alleged deficiencies of the
home study was likewise improper.
11
{33} In reviewing Father’s sufficiency claim, we are mindful that a treatment plan under
the ANA “identifies, addresses, and attempts to correct those circumstances and conditions
which rendered the child abused or neglected.” State ex rel. Children, Youth & Families
Dep’t v. Michelle B., 2001-NMCA-071, ¶ 38, 130 N.M. 781, 32 P.3d 790. At trial,
Steckbauer testified that she based her development of Father’s treatment plan on his
disclosures about “his DWI history [and] substance abuse history” and the “restrictions of
[Father’s] criminal situation[.]” Related to these causes and conditions, the evidence must
be substantial to meet the statutory condition that Father was unlikely to alleviate them in
the foreseeable future. Patricia H., 2002-NMCA-061, ¶ 22. We have construed “foreseeable
future” to “refer to corrective change within a reasonably definite time or within the near
future.” Id. ¶ 34 (internal quotation marks and citation omitted).
{34} CYFD initiated termination proceedings approximately one month after Father was
deported. At that time, Child had been in CYFD’s custody for nine months. Steckbauer
testified that she never received proof of Father’s completion of the addiction treatment
program during his incarceration in the United States, but the evidence presented to the
district court at trial focused primarily on Father’s compliance with his treatment plan
following his deportation. After Father’s deportation, CYFD requested the assistance of the
Mexican Consulate in conducting a psychological evaluation and home study for Father. The
evidence clearly established that Father voluntarily and timely participated in a
psychological evaluation arranged by the Consulate and completed six sessions of individual
therapy that were recommended by the evaluation. Father also obtained employment,
participated in a study of the home where he lived with his mother and sister, disclosed his
financial information as part of that study, and submitted to a urinalysis that screened for
illegal drugs.
1. Evidence Supporting Father’s Alcohol and Substance Use
{35} The district court did not enter a finding that CYFD presented evidence that Father’s
alcohol and substance abuse persisted as a continuing cause and condition of neglect. Father
therefore challenges the district court’s termination decision by arguing that the district court
erred in relying on stale and speculative evidence that was based on generalizations of
Father’s past conduct. In response, CYFD points to the evidence of Father’s previous DWI
conviction, which CYFD argues resulted from Father’s “history of substance abuse” and
cites Father’s submission of “only one drug screen” that did not test for alcohol.
{36} With respect to the drug screen, Steckbauer testified that the urinalysis submitted by
Father on November 6, 2013 did not satisfy her need to know whether Father was using
alcohol or other substances. The court found that Father “only provided one [urinalysis]
during the life of the case, but did not provide a series of tests to determine whether alcohol
and substance abuse issues were being addressed or alleviated. The [urinalysis] provided did
not test for alcohol, one of [Father’s] issues.” However, there is no evidence that CYFD
notified the Consulate or Father that the initial urinalysis was deficient because it failed to
test for alcohol. There is likewise no evidence that CYFD made any requests through the
12
Consulate or to Father for additional urinalyses that would have established whether Father
had failed to alleviate his alcohol problem, despite the treatment plan’s requirement that
Father “will provide random [urinalyses] as determined by [CYFD].” (Emphasis added).
CYFD also failed to present any evidence suggesting that Father was directed by CYFD to
submit urinalyses that screened for alcohol but was noncompliant or unwilling to do so.
Steckbauer’s final conversation with Father occurred in early December 2013, and Father
testified that Steckbauer did not discuss the subject of drug tests with him at all.
{37} In the absence of evidence showing any efforts on the part of CYFD to obtain
additional urinalyses, we do not believe that Father’s submission of one inconclusive drug
screen constituted evidence that he had failed to alleviate the causes and conditions of
neglect or was unlikely to do so in the foreseeable future. Cf. State ex rel. Children, Youth
& Families Dep’t v. Amanda H., 2007-NMCA-029, ¶ 22, 141 N.M. 299, 154 P.3d 674
(holding that an initial positive toxicology test was inconclusive and therefore did not
constitute clear and convincing evidence that established the child’s neglect). The district
court incorrectly applied the burden of proof that is required in a termination of parental
rights case by holding the informational deficit regarding Father’s alcohol and substance use
against him. Notably, in announcing its findings at the conclusion of trial, the court stated
that Father “ha[d] not presented evidence that supports the conclusion” that he had alleviated
the causes and conditions of neglect. The court specified that there was evidence that Father
“has an alcohol problem” but that there was no evidence regarding “whether he’s still
drinking.” CYFD is not entitled to transfer its evidentiary burden under the ANA as a result
of Father’s deportation, particularly when Father made efforts to comply with a treatment
plan that imposes responsibilities on CYFD to assess the continuing existence of the causes
and conditions of neglect. Such a result would contravene the statutory duty of CYFD under
the ANA and undermine the fundamental nature of parental rights. See State ex rel. Children,
Youth & Families Dep’t v. Marsalee P., 2013-NMCA-062, ¶ 25, 302 P.3d 761 (“The district
court has an affirmative obligation to make sure that the requirements of the [ANA] are
followed prior to the termination of something as fundamental as the parental rights to a
child.”). The district court therefore erred by relying on the lack of evidence regarding
Father’s alcohol and substance abuse as if it were, in actuality, evidence supporting its
finding that Father was unlikely to alleviate his alcohol and substance abuse problem in the
foreseeable future. See In re E.N.C., 384 S.W.3d 796, 808 (Tex. 2012) (“A lack of evidence
does not constitute clear and convincing evidence.”).
{38} As additional evidence of the persistence of Father’s “history of substance abuse” as
a cause and condition of neglect, CYFD relies on Steckbauer’s testimony that six therapy
sessions were inadequate to address that history. CYFD also argues that Father was not
engaged in substance abuse treatment or “relapse prevention” at the time that his parental
rights were terminated. At trial, Steckbauer testified that she spoke with Father in early
December 2013 about “having the therapy sessions set up” that were recommended by the
psychological evaluation and that she discussed with Father “when [the sessions] would be
beginning.” She told Father that he should address “his substance abuse history” in his
therapy sessions as part of his treatment plan requirements. The evidence showed that
13
Father’s schedule of therapy sessions began on December 18, 2013 and that he completed
the sessions on January 23, 2014.
{39} Although Father’s treatment plan required CYFD to “make appropriate
recommendations[,] . . . make appropriate referrals[,] and monitor [Father’s] progress[,]”
Steckbauer had no further contact with Father after their telephone conversation in early
December 2013. Steckbauer requested documentation from the Consulate that described
what issues were specifically being addressed in Father’s therapy sessions, but she did not
contact Father after she received the documents from the Consulate or after she received
confirmation of Father’s completion of the recommended therapy sessions. There is also no
evidence that Steckbauer or anyone else from CYFD communicated with the Consulate after
Father completed the sessions. Instead, CYFD elicited testimony from Steckbauer in which
she stated generally that, based on her experience, she had never seen a person successfully
deal with parenting, domestic violence, and substance abuse issues in six sessions of therapy.
The court found that Father had participated in six individual therapy sessions recommended
by the psychological evaluation but that the sessions “did not satisfy [CYFD’s] requirement
for . . . substance abuse[.]” The court also found that Father “did not participate in a . . .
substance abuse assessment[,]” even though CYFD did not present evidence that it requested
an assessment through the Consulate or otherwise referred Father for an assessment.
{40} We agree with Father that CYFD relied on vague references to Father’s past to draw
speculative inferences about the current and future existence of the causes and conditions
of neglect. See Baca v. Bueno Foods, 1988-NMCA-112, ¶ 15, 108 N.M. 98, 766 P.2d 1332
(“Evidence from which a proposition can be derived only by speculation among equally
plausible alternatives is not substantial evidence of the proposition.”). Other than Father’s
incarceration for DWI and Steckbauer’s testimony that Father disclosed a history of
substance abuse, we could not identify any explanations or details in the record regarding
the extent or severity of Father’s history of alcohol or substance abuse, such as past criminal
convictions or the specific types of substances involved. The record also does not explain
whether the basis for Father’s DWI conviction was for the use of alcohol or drugs. CYFD’s
evidence in support of termination consisted solely of the testimony of Steckbauer, who
instructed Father to address his “substance abuse history” in his therapy sessions but then
never communicated with Father either during or after he completed the recommended
sessions. In Hector C., we held that the evidence was insufficient to support a finding that
the causes and conditions of neglect were unlikely to change in the foreseeable future where
“[n]o effort was made by CYFD to present an opinion . . . based on [the f]ather’s current
situation and on new information that had become available since [the father’s] evaluation.”
2008-NMCA-079, ¶ 19 (emphasis added). In that case, CYFD did offer expert testimony
from a psychologist, who opined that the father could not resolve the causes and conditions
of neglect of his child due to the combination of the father’s history of drug addiction, gang
affiliation, and prior incarceration. Id. ¶¶ 15, 19. We determined that the “evidence was stale
for the purpose of determining whether those conditions persisted at the time of the hearing
or would persist into the future.” Id. ¶ 16 (quoting State ex rel. Dep’t of Human Servs. v.
Natural Mother, 1981-NMCA-103, ¶ 9, 96 N.M. 677, 634 P.2d 699). We agree with Father
14
that the district court similarly based its finding on stale evidence in this case.
{41} CYFD developed its treatment plan to address Father’s “DWI history [and] substance
abuse history[,]” but it did not present any evidence that these causes and conditions
persisted or were unlikely to change in the foreseeable future. Father’s DWI arrest occurred
in December 2012, which was prior to the time Child was taken into custody, and more than
a year had elapsed between Father’s arrest and the final day of the termination trial. Given
that CYFD did not reevaluate or communicate with Father after early December 2013,
Steckbauer’s opinion about Father’s progress focused on Father’s past and whether, in her
general experience as a social worker, “someone” could resolve those issues in six sessions
of therapy. We are not persuaded that Steckbauer’s testimony alone is the type of evidence
that leaves the “fact finder’s mind . . . with an abiding conviction that the evidence is true.”
In re Adoption of Doe, 1982-NMCA-094, ¶ 31 (internal quotation marks and citation
omitted); see Fitzgerald v. Fitzgerald, 1962-NMSC-028, ¶ 2, 70 N.M. 11, 369 P.2d 398
(“[T]estimony founded upon mere surmise, guess or conjecture is not substantial to support
a finding of fact.”). CYFD did not introduce any other evidence in support of the conclusion
that Father’s past conduct demonstrated that the causes and conditions of neglect persisted
at the time of trial, were unlikely to change, and currently impacted Father’s ability to parent
Child. This lack of evidence does not constitute clear and convincing evidence.
2. Evidence Supporting Father’s Mental Health and Domestic Violence Issues
{42} We now turn to the evidence pertaining to Father’s mental health and domestic
violence history. Father contends that the court’s finding that Father was unlikely to alleviate
the causes and conditions of neglect was improperly based on stale and speculative evidence
related to Father’s “impulsivity.” In defending the court’s finding on appeal, CYFD cites
Steckbauer’s testimony that Father’s completion of six sessions of therapy was inadequate
to address the “magnitude and severity” of the issues identified in Father’s psychological
evaluation, namely his problems with impulse control. CYFD additionally cites its
“concerns” with Father’s domestic violence history and that Father never completed a
domestic violence assessment.
{43} The district court heard testimony from Steckbauer that she instructed Father in early
December 2013 to address “parenting” and “his domestic violence history” in therapy.
During cross-examination on the final day of trial on February 13, 2014, Father’s counsel
introduced a letter dated January 30, 2014 from the Mexican psychologist who had evaluated
Father. The letter, which Steckbauer said she had received from the Consulate, stated that
Father had successfully completed his therapy sessions, showed “favorable control of [his]
emotions[,]” and was “capable of being in charge of [Child].” When asked in cross-
examination whether the letter resolved her concerns about the psychologist’s initial
diagnosis that Father “lacks control of his impulses[,]” Steckbauer answered not
“completely” because “somebody could be still struggling with impulsivity and maybe be
seen to be able to make decisions, I don’t know.” Steckbauer said that “impulsivity” is a “big
issue” that CYFD considers when assessing parental capacity and that CYFD did not “have
15
anything specifically stating that [impulsivity] was addressed.”
{44} When asked whether Father complied with the treatment plan requirement for
parenting classes, Steckbauer testified that, based on her knowledge of the documents she
received from the Consulate, she believed Father addressed parenting education “to the best
of his ability” because parenting classes were unavailable in Father’s municipality.
Nonetheless, Steckbauer testified that she did not agree with the psychologist’s conclusion
about Father’s parenting capability because she did not believe that the psychologist’s letter
was a “full assessment” of the multiple aspects that factor into CYFD’s determination
regarding someone’s ability to parent a child. Steckbauer testified that “there’s more than
one need, and saying that [Father] completed therapy as an equivalent of parenting classes,
it’s great . . . but I don’t think that [Father’s psychologist] from six sessions of therapy could
speak to that.” CYFD also elicited testimony from Steckbauer that indicated Father’s
psychological evaluation was deficient. Steckbauer stated that Father’s therapy sessions
were, in her experience, inadequate to address domestic violence, parenting education, and
substance abuse areas.
{45} We agree with Father that the evidence was insufficient to support the district court’s
finding that Father had failed or was unlikely to alleviate the causes and conditions of
Child’s neglect in the foreseeable future. In its findings, the court specified that the
psychological evaluation of Father “was not very revealing regarding his mental health” and
“did not use any of the standard testing recognized in the United States.” The court also
stated at the conclusion of trial that the evaluation “doesn’t really tell us much, except that
[Father] has some impulsivity problems, which is evident in what’s happened here in his
past.” The court further noted that Father participated in six individual therapy sessions
recommended by the evaluation but that the sessions “did not satisfy [CYFD’s] requirement
for domestic violence . . . and parenting counseling.” Again, the court relied on a lack of
evidence establishing the adequacy of Father’s mental health and parenting capabilities as
if it were, in reality, evidence demonstrating that the causes and conditions of Child’s neglect
persisted at the time of trial or were likely to continue into the future.
{46} CYFD did not present evidence that Father was unable to safely parent Child because
his present condition was plagued by unresolved mental health problems or domestic
violence issues. In State ex rel. Children, Youth & Families Dep’t v. Athena H., this Court
held that substantial evidence supported the district court’s finding that the mother was
unlikely to alleviate the causes and conditions of neglect due to her continued psychological
instability and “the chronic abuse and trauma” that the children suffered while in the
mother’s care. 2006-NMCA-113, ¶ 12, 140 N.M. 390, 142 P.3d 978. In that case, the
evidence in support of termination consisted of the testimony of the children’s therapist and
a child psychologist appointed by the court as an expert in the case. Id. ¶¶ 10, 12. The
evidence also demonstrated that the mother had complied with the treatment plan to the best
of her ability but that she had discontinued “the treatment two years prior to the termination
hearing because she . . . did not believe that she needed continued care.” Id. ¶ 10. Unlike in
Athena H., CYFD did not present evidence that Father suffered from the current or long-term
16
impacts of “impulsivity” that rendered him unable to properly parent Child. Even assuming
the existence of this condition, CYFD did not present evidence that Father’s condition
persisted despite his efforts to comply with his treatment plan or that he was unwilling to
pursue further treatment for the condition.
{47} There is also no evidence that CYFD made any effort to make proper referrals, obtain
information about Father’s condition, or reevaluate Father after it received his psychological
evaluation or the letter regarding Father’s completion of therapy. CYFD did not present any
opinion, other than Steckbauer’s testimony, regarding the credibility of Father’s
psychological evaluation, comparisons to evaluations performed in the United States, the
adequacy of Father’s therapy sessions, or the conclusions that could be drawn about Father
from his participation in the evaluation or the sessions. Additionally, there was no evidence
that any impulse control or domestic violence issues were connected to the causes and
conditions that brought Child into CYFD’s custody. In our review of the record, we did not
identify any facts that would explain or clarify the details of Steckbauer’s reference to
Father’s domestic violence history, and CYFD did not introduce any evidence at trial in this
regard. We therefore cannot conclude that CYFD met its burden of proof and that there was
substantial evidence to justify termination on those grounds. See, e.g., State ex rel. Children,
Youth & Families Dep’t v. Stella P., 1999-NMCA-100, ¶ 35, 127 N.M. 699, 986 P.2d 495
(stating that in a case of a parent whose mental illness constituted the basis for CYFD’s
proposed termination, CYFD must present “sufficient testimony to allow the court to make
the statutorily required findings” under the ANA).
3. Evidence Supporting Father’s Ability to Provide Safe and Stable Housing
{48} Finally, we address the evidence pertaining to the home study requested by CYFD
and conducted by the Consulate as part of Father’s treatment plan. Given that Father pleaded
no contest to CYFD’s neglect allegations that he had “failed to provide for [Child’s] basic
necessities[,]” Father’s ability to obtain safe and stable housing was obviously fundamental
to Father’s progress toward alleviating the causes and conditions of neglect. See In re Grace
H., 2014-NMSC-034, ¶ 11 (stating that the treatment plan required by the ANA sets forth
services “the parents must complete in order to address the causes and conditions which led
to removal of the child from the home”). Accordingly, Father’s treatment plan required that
he “obtain and maintain safe and stable housing[,]” and CYFD was required to “monitor
[Father’s] current living arrangement.” Steckbauer also testified that she instructed Father
to have a home study completed as part of the treatment plan.
{49} The home study was conducted on November 5, 2013 and sent by email to
Steckbauer by Consulate staff. The study indicated that Father had obtained employment and
lived in a home with his mother and sister. Father also provided his financial information as
part of the study. Steckbauer testified that, based on the study, the home looked appropriate
and that she did not have any problem with its physical structure or cleanliness. Despite the
favorable results, CYFD’s counsel elicited testimony from Steckbauer that was critical of
the study. Steckbauer testified that the study did nothing to explore Father’s possible
17
criminal history or any possible abuse or neglect allegations against Father in Mexico. She
also said that she had no knowledge of the length of time it took Mexican investigators to
complete the home study, whether investigators had interviewed members of Father’s family
outside of the home, or whether investigators had explored “medical issues” of anyone in
Father’s family. The district court found that the “home was deemed appropriate, however,
the home study did not include a criminal history for the family members, or any
documentation as to a lack of abuse and neglect allegations. It was unclear whether anyone
other than the family members were interviewed, or whether any medical issues were
considered.” The court stated at the conclusion of trial that Father’s mother and sister, who
lived in the home, were “probably good people, but we don’t know.”
{50} Once more, based on the lack of evidence before it, the district court improperly
shifted CYFD’s statutory burden of proof required in a termination case to Father. The
court’s finding pointed to the lack of information included in the study as evidence in favor
of termination; however, it was CYFD’s statutory responsibility to support its termination
motion by presenting evidence that established that Father’s home was unsafe or unstable,
which CYFD failed to do. To the contrary, based on the evidence presented at trial, the
district court found that the home “was deemed appropriate[.]” Even more telling, CYFD did
not present evidence that suggested that the study was incomplete or deficient as a result of
Father’s unwillingness to participate in the study or disclose information. Steckbauer
informed Father in December 2013 that she had received the home study, but she never
discussed the results of the study with Father nor notified him of any additional information
CYFD required. There is also no evidence that CYFD communicated with the Consulate to
express its reservations about the completeness of the study or to request any information
whatsoever. We therefore are not convinced that the evidence of the home study constitutes
substantial evidence supporting the district court’s finding.
{51} Notably, in announcing its findings at the conclusion of trial, the court explained that
it believed that Father had made efforts to alleviate the causes and conditions of Child’s
neglect, “credit[ed] him with making efforts,” and stated that it “underst[ood] it’s difficult
in Mexico.” While we recognize that “[e]ven with a parent’s reasonable efforts, . . . the
parent may not be able to make the changes necessary to rectify the causes and conditions
of the neglect and abuse so as to enable the court to conclude that the parent is able to
properly care for the child[,]” Athena H., 2006-NMCA-113, ¶ 9, we cannot conclude that
there was clear and convincing evidence to support the district court’s determination that
Father was unable to alleviate the causes and conditions of Child’s neglect in the foreseeable
future. We reiterate that Father’s deportation did not absolve CYFD from its required
statutory burden of proof in termination proceedings. See State ex rel. Children, Youth &
Families Dep’t v. Maria C., 2004-NMCA-083, ¶ 22, 136 N.M. 53, 94 P.3d 796 (“Because
a [termination of parental rights] hearing irrevocably divests parents of all legal rights in
their children . . . CYFD carries the burden of proof by clear and convincing evidence.”).
{52} In holding that CYFD failed to meet its burden, we do not overlook the evidence
pertaining to Father’s efforts to provide support for and communicate with Child. This
18
evidence may indicate abandonment of Child; however, abandonment under Section 32A-4-
28(B)(1) was not a proper basis for termination in this case. See Christopher B., 2014-
NMCA-016, ¶ 12 (“Multiple factors may indicate abandonment, including an absence of
financial support and a purposeful declination of opportunities to remain in contact with the
child or children.”); see also In re Guardianship of Ashleigh R., 2002-NMCA-103, ¶ 22, 132
N.M. 772, 55 P.3d 984 (“A parent’s contact with the children and financial support for the
children during their absence will weigh against a finding of abandonment.”). We have
difficulty concluding that this same evidence supports termination on the basis that Father
was unlikely to alleviate the causes and conditions of Child’s neglect in the foreseeable
future. Father’s ability to provide financial support to Child was hampered by his
incarceration for the initial seven months of the case, but the home study indicated that
Father obtained employment shortly after his deportation. Steckbauer testified that an
important part of Father’s “financial plan” requirement under his treatment plan was that he
maintain employment. Given the very young age of Child, we are also not persuaded that
Father’s failure to send letters, which Child could not read or comprehend, is dispositive of
Father’s inability to maintain a bond with Child. Child was four months old at the time
CYFD took him into custody and was just over a year old at the time of Father’s termination
trial. We do not believe this evidence alone is substantial evidence to support termination
under Section 32A-4-28(B)(2).
C. Reasonable Efforts by CYFD
{53} Father next argues that clear and convincing evidence did not support the district
court’s determination that CYFD made reasonable efforts to assist Father in adjusting the
causes and conditions that led to CYFD’s custody of Child. Father contends CYFD failed
to comply with its statutory obligation to pursue reunification by not engaging in sufficient
efforts to communicate with Father or the Mexican Consulate following his deportation, and
he advances several arguments in support of this claim, including that CYFD (1) failed to
request information that it deemed necessary to complete the home study and Father’s
psychological evaluation; and (2) failed to determine if Father’s relatives in Mexico would
be a suitable placement for Child.
{54} CYFD is required to “provide reasonable efforts to assist the parent to change the
conditions that gave rise to the neglect and abuse, and the district court must consider the
results of CYFD’s efforts.” Athena H., 2006-NMCA-113, ¶ 9. “What 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, ¶ 23. 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. Id. ¶ 26. This Court has used the time
period for reunification services set forth under federal law as a touchstone in our reasonable
efforts analysis. Id. The Adoption and Safe Families Act (ASFA), Pub. L. No. 105-89, 111
Stat. 2115 (1997), provides that a fifteen-month period following the placement of a child
into foster care consists of “time-limited reunification services.” Id.; see also Hector C.,
19
2008-NMCA-079, ¶ 26 (applying ASFA’s fifteen-month window as the time period for
analyzing whether CYFD’s efforts were reasonable under the ANA).
{55} We cannot conclude that substantial evidence supported the district court’s
determination that CYFD made reasonable efforts when the evidence shows that CYFD’s
approach to the circumstances of Father’s deportation foreclosed any possibility of achieving
the goal of reunification. Although Father’s treatment options during his incarceration in the
United States were limited, Father engaged in an addiction treatment program, provided
CYFD the names of relatives living in the United States so that placement options could be
explored, and wrote to Child in April 2013. Steckbauer testified that she did use the
assistance of an interpreter to meet with Father monthly during that time, and she also
explored Father’s relatives in the United States as possible placement options for Child. Yet
CYFD’s reunification efforts abruptly changed following Father’s deportation and
participation in treatment services in Mexico.
{56} CYFD requested the Consulate’s assistance in conducting a psychological evaluation
and a home study after Father was deported in September 2013.1 Nevertheless, at the end of
October 2013, CYFD moved to terminate Father’s parental rights. In its motion, CYFD
asserted that Father had failed to comply with all aspects of his treatment plan, including that
Father failed to (1) maintain weekly contact with CYFD, (2) discuss his history with CYFD,
(3) complete a mental health assessment, (4) submit proof that he had obtained safe and
stable housing, and (5) participate in family time with Child. We are troubled that CYFD
requested the Consulate’s assistance in offering treatment plan services to Father following
his deportation, then approximately one month later sought to terminate Father’s rights on
grounds that he failed to comply with that plan. It is also disconcerting that the evidence
presented at trial plainly conflicted with certain key representations about Father’s conduct
alleged by CYFD in its termination motion. As we previously stated, Steckbauer based her
1
Father argues on appeal with regard to CYFD’s reasonable efforts that CYFD
violated Article 37 of the Vienna Convention on Consular Relations (VCCR), April 24,
1963, 21 U.S.T. 77, 596 U.N.T.S. 261, by failing to provide the Mexican Consulate timely
notification of CYFD’s custody of Child. The VCCR is a multilateral international treaty that
regulates various consular activities between countries that are parties to the treaty. Sanchez-
Llamas v. Oregon, 548 U.S. 331, 337-38 (2006). Father raises the issue of consular
notification for the first time on appeal and thus did not properly preserve this argument in
the district court proceedings below. See Rule 12-216(A) NMRA (“To preserve a question
for review it must appear that a ruling or decision by the district court was fairly
invoked[.]”). In any event, our Supreme Court has determined that “the provisions of the
VCCR do not create legally enforceable individual rights.” State v. Martinez-Rodriguez,
2001-NMSC-029, ¶ 15, 131 N.M. 47, 33 P.3d 267, abrogated on other grounds as
recognized by State v. Forbes, 2005-NMSC-027, ¶ 6, 138 N.M. 264, 119 P.3d 144.
Therefore, Father does not have standing to enforce Article 37 of the VCCR. See Martinez-
Rodriguez, 2001-NMSC-029, ¶ 15.
20
development of the treatment plan on Father’s disclosures about his history. Steckbauer also
testified that Father called her after he was deported in September 2013, that she spoke to
him by telephone in October 2013, and that during that conversation she told him to maintain
monthly contact with CYFD. Furthermore, Steckbauer testified that Father was unable to
have in-person visitation with Child, demonstrating that CYFD was well aware that Father’s
participation in family time with Child was complicated by the circumstances of his
incarceration and deportation.
{57} Despite CYFD’s termination motion, Father demonstrated efforts to cooperate in
treatment services intended to assist him in adjusting the conditions that rendered him unable
to properly care for Child. By early December 2013, Father participated in the home study
and psychological evaluation requested by CYFD. He also submitted a urinalysis and was
slated to begin therapy sessions that were recommended by the psychological evaluation.
During his telephone conversation with Steckbauer that month, Father inquired about Child’s
well-being and asked Steckbauer to send him a picture of Child; however, Steckbauer ceased
her communication with Father after that telephone call, citing “caseload” issues as the
reason she did not arrange a call with Father. Steckbauer did not inform Father of additional
information necessary to complete the home study or direct him to submit additional
urinalyses. Further, we find it noteworthy that Steckbauer testified that she never spoke to
Father about what he earned from his job, whether he was saving his money, or why he was
not sending money to Child, despite his employment. She also did not contact him after she
received his psychological evaluation and, as a result, never recommended to Father that he
address any impulsivity problems in his therapy sessions. Steckbauer testified that
“impulsivity” was a significant issue in assessing parental capacity but that Father was never
notified that his “impulsivity” problems could constitute a basis for termination. See State
ex rel. Children, Youth & Families Dep’t v. Joseph M., 2006-NMCA-029, ¶¶ 20, 22, 139
N.M. 137, 130 P.3d 198 (holding that there was insufficient evidence to support that CYFD
made reasonable efforts to assist the father because CYFD never informed him that his
relationship with the mother was a cause and condition of the abuse and neglect that could
be a basis for termination). CYFD also made no attempt to reevaluate Father after he
completed the recommended therapy sessions in order to assess his progress. In essence,
CYFD halted its reunification efforts less than one year after taking custody of Child, then
required Father to present evidence at trial that rebutted CYFD’s presumption that he was
unfit to parent Child.
{58} We also agree with Father that CYFD fell short in its efforts, required under the
ANA, to explore whether Father’s relatives in Mexico would serve as suitable placement
options for Child. Section 32A-4-25.1(D) provides that “[i]f the court adopts a permanency
plan other than reunification, the court shall determine whether [CYFD] has made reasonable
efforts to identify and locate all grandparents and other relatives.” In State ex rel. Children,
Youth & Families Department v. Laura J., this Court “emphasize[d] that Section 32A-4-
25.1(D) imposes a duty upon the district court to make a serious inquiry into whether
[CYFD] has complied with its mandate to locate, identify, and consider relatives with whom
to place children in its custody.” 2013-NMCA-057, ¶ 61, 301 P.3d 860. We further stated:
21
In future cases, such inquiry will not be satisfied by a pro forma ratification
of [CYFD’s] assertions that such efforts have been made. . . . [I]n order to
comply with the relatives search requirement of Section 32A-4-25.1(D), the
court must conclude that [CYFD], through all of its available resources, has
met its affirmative duty to “identify and locate . . . [and] conduct home
studies on any appropriate relative expressing an interest in providing
permanency for the child.” Section 32A-4-25.1(D).
Laura J., 2013-NMCA-057, ¶ 61 (fifth and sixth alterations in original). The district court
did not indicate such a conclusion in its findings of facts and conclusions of law, and we
have difficulty concluding that Steckbauer’s testimony consitutes evidence that her efforts
to consider Father’s Mexican relatives as potential placements for Child were reasonable.
Steckbauer testified that Father’s relatives in the United States suggested to her that their
family members in Mexico could have been potential placement options for Child. She also
testified that she spoke with the Consulate about the possibility of Father’s family in Mexico
being a foster care placement for Child, but she could not remember the time that discussion
occurred or its outcome, and she never spoke to his mother and sister. When Father’s counsel
asked Steckbauer if she knew if Father’s mother and sister were interested in being foster
care placements, she responded that she said “it would be explored, but [Father’s mother and
sister] haven’t communicated through the Consulate or me any further to pursue that.”
However, because of her conversations with the Consulate, Steckbauer testified that she
knew that mother and sister were willing to have Child in the home. We cannot conclude that
this evidence is sufficient to survive the type of inquiry that we imposed in Laura J. to
ensure that CYFD met its obligations under Section 32A-4-25.1(D).
{59} In response to Father’s arguments on appeal, CYFD points to its efforts to request
the psychological evaluation and home study, obtain documentation of their completion, and
translate the results. CYFD also argues that it sought the Consulate’s assistance in using the
Consulate’s mail system to facilitate Father’s communication with Child and that CYFD
explored Father’s relatives in the United States as possible placement options. Considering
the totality of the circumstances, we do not agree with CYFD that these efforts met the
minimum statutory requirements under the ANA. See Patricia H., 2002-NMCA-061, ¶ 28
(“[An appellate court’s] 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.”). Father made efforts to comply with the services offered in
Mexico as part of his treatment plan once he was free from the restrictions of his
incarceration. In light of Father’s efforts, we cannot attribute the resulting lack of evidence
related to the causes and conditions of neglect to Father. Cf. Hector C., 2008-NMCA-079,
¶ 20 (holding that CYFD failed to present clear and convincing evidence that the causes and
conditions of neglect were unlikely to change in the foreseeable future when the father
complied with his treatment plan and CYFD failed to reevaluate the father following his
release from prison). Additionally, Child had been in CYFD’s custody for nine months at
the time CYFD moved for termination, and CYFD ended its contact with Father less than
twelve months after CYFD took custody of Child. This time period expired well before the
22
fifteen-month period of time-limited reunification services established by ASFA. We
acknowledge “CYFD’s duty to expeditiously handle [termination] cases,” id., but its actions
suggest that it did not properly assist Father in ameliorating the causes and conditions of
Child’s neglect. See Natural Mother, 1981-NMCA-103, ¶ 14 (holding that the Human
Services Department failed to make reasonable efforts and “acted in bad faith” when it
disregarded the mother’s efforts and rejected a favorable home study). We therefore
conclude that substantial evidence of a clear and convincing nature did not exist to support
the district court’s finding that CYFD made reasonable efforts to assist Father in adjusting
the causes and conditions that led to CYFD’s custody of Child.
D. Best Interests of Child
{60} The ANA requires the district court to “give primary consideration to the physical,
mental and emotional welfare and needs of the child, including the likelihood of the child
being adopted if parental rights are terminated.” Section 32A-4-28(A). It is well established,
however, that adherence to this statutory principle “cannot be done to the utter exclusion of
consideration of the rights of a parent to raise [his or] her children.” Natural Mother, 1981-
NMCA-103, ¶ 16. “[I]n termination of parental rights proceedings, there is often a tension
between the [child’s needs] and the understanding that parental rights are among the most
basic rights of our society and go to the very heart of our social structure.” State ex rel.
Children, Youth & Families Dep’t v. Benjamin O., 2007-NMCA-070, ¶ 34, 141 N.M. 692,
160 P.3d 601 (internal quotation marks and citation omitted).
{61} Based on our review of the trial record, the district court found Father’s
acknowledgment of the language barrier between Father and Child highly persuasive in
determining Child’s need for permanency. The court explicitly stated in its written findings
that “[Father] acknowledged that he has not seen [Child] since December of 2012, and that
[Child] would not recognize him. He also acknowledged that [Child] does not speak Spanish,
that language would be a barrier, and that [Child] would have to get to know [Father] ‘little
by little.’” In announcing its termination decision at the end of trial, the court explained that
Father’s testimony regarding the language barrier was “very telling, because his son
wouldn’t be able to communicate with him as a result of this break in their communication,
literally.”
{62} We are unconvinced that, as a general rule, native language disparities between a
natural parent and his or her infant child are insurmountable obstacles to reunification. We
have serious reservations about the district court’s reliance on this theory in light of the lack
of evidence before the court in this case. There was no evidence presented by CYFD that
Child, who was approximately eighteen months old at the time of trial and in the early stages
of developing his language capabilities, possessed an inability to learn Spanish that fatally
inhibited his reunification with Father. Steckbauer testified that it would be “harmful” to
return Child to Father because there had been no “direct communication” between Father
and Child. However, CYFD failed to present any evidence that Father’s native language
rendered him incapable of caring for Child. Moreover, the lack of evidence related to the
23
home study impaired the court’s knowledge of the adequacy of the home environment that
would await Child in Mexico. The court did hear evidence that Child had resided in a stable
foster home environment in the United States with his half-brother since CYFD took custody
of Child, but “a parent’s rights may not be terminated simply because a child might be better
off in a different environment.” Joseph M., 2006-NMCA-029, ¶ 16 (internal quotation marks
and citation omitted). We therefore cannot agree that presumptions about Child’s Spanish-
speaking skills, given the young age of Child and the truncated time period of CYFD’s
reunification efforts, indicated an irreparable disintegration of the parent-child relationship
that overwhelms all other considerations in this case.
{63} We do not suggest that Child’s best interest is to be reunited with Father in Mexico.
We recognize that Child now resides in a foster home with his half-brother and Child’s
permanency needs are significant. However, CYFD’s failure to comply with its statutory
mandate to make reasonable efforts and carry its evidentiary burden of proof in this case
improperly deprived Father of his rights. This Court has specified that a judgment
terminating parental rights must be entered “only with the utmost circumspection and
caution” due to the fundamental nature of those rights. Stella P., 1999-NMCA-100, ¶ 33; see
In re Termination of Parental Rights of Reuben & Elizabeth O., 1986-NMCA-031, ¶ 36, 104
N.M. 644, 725 P.2d 844 (“Termination of parental rights is not a matter to be lightly
taken.”). Upon remand of this case, “[i]t is clear that the district court is in the best position
to determine the present circumstances of [Child] and Father and to balance the emotional
interests of [Child] and Father’s rights.” Lance K., 2009-NMCA-054, ¶ 41.
CONCLUSION
{64} New Mexico law does not relieve CYFD of its statutory mandate to make reasonable
efforts to assist the parent in adjusting the causes and conditions of neglect simply because
the parent has been deported to another country. The ANA affirmatively places the burden
on CYFD, not the parent, to prove by clear and convincing evidence that the parent is
unlikely to alleviate the causes and conditions of neglect in the foreseeable future. In this
case, CYFD moved to terminate Father’s parental rights one month after his deportation and
discontinued its communication with Father shortly thereafter. Additionally, CYFD failed
to reevaluate Father’s progress in ameliorating the causes and conditions of neglect, despite
Father’s efforts to comply with significant aspects of his treatment plan. Accordingly, we
conclude that CYFD’s subsequent presentation of incomplete evidence was not substantial
evidence of a clear and convincing nature that justified termination of Father’s parental
rights under the ANA. The district court’s termination for abandonment was likewise
improper. We therefore reverse the district court’s termination of Father’s parental rights
under Section 32A-4-28(B)(1) and Section 32A-4-28(B)(2), and we remand this case for
further proceedings consistent with this opinion.
{65} IT IS SO ORDERED.
____________________________________
24
JAMES J. WECHSLER, Judge
WE CONCUR:
____________________________________
MICHAEL D. BUSTAMANTE, Judge
____________________________________
LINDA M. VANZI, Judge
25