State ex rel. CYFD v. William C., Jr. , 2017 NMCA 58 ( 2017 )

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integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 13:30:06 2017.08.22
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2017-NMCA-058Filing Date: April 21, 2017
Docket No. 35,472
STATE OF NEW MEXICO ex rel.
CHILDREN, YOUTH AND FAMILIES
DEPARTMENT,
Petitioner-Appellee,
v.
WILLIAM C., JR.,
Respondent-Appellant,
and
IN THE MATTER OF SKYLA C.,
Child.
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
John F. Davis, District Judge
Children, Youth & Families Department
Charles E. Neelley, Chief Children’s Court Attorney
Santa Fe, NM
Kelly P. O’Neill, Children’s Court Attorney
Albuquerque, NM
for Appellee
Law Office of Gina M. Maestas
Gina M. Maestas
Albuquerque, NM
for Appellant
Jay Mueller
1
Albuquerque, NM
Guardian Ad Litem
OPINION
SUTIN, Judge.
{1} William C. (Father) appeals from an order terminating his parental rights to his
daughter, Skyla C. (Child). After the district court denied the Children, Youth and Families
Department’s (the Department) first motion to terminate Father’s parental rights to Child,
a second hearing on a second motion to terminate his parental rights was held. After the
second hearing, the court granted the Department’s motion and terminated Father’s parental
rights. On appeal, Father argues that: (1) the district court erred in allowing evidence at the
second termination hearing regarding events that occurred prior to the first termination
hearing, and (2) there was insufficient evidence to terminate his rights. We hold that the
district court did not err in hearing evidence that preceded the first termination hearing and
that there was sufficient evidence to terminate Father’s rights. We therefore affirm.
BACKGROUND
{2} The Department, which had taken custody of Child on September 26, 2013, filed a
neglect petition against Father and Child’s mother, Allisha V. (Mother), on September 30,
2013. Child and Child’s half-brother, who is not Father’s biological son and who is not the
subject of this appeal, were removed from the home due to concerns about Mother’s and
Father’s alleged substance abuse, domestic violence, and mental health concerns. After both
entered pleas of no contest, judgment was entered against Mother and Father that they
neglected Child, pursuant to NMSA 1978, Section 32A-4-2(E)(2) (2009, amended 2016)
(current version at Section 32A-4-2(F)(2)), and on February 20, 2014, the district court
adopted a treatment plan.
{3} On April 6, 2015, the Department filed its first motion for termination of parental
rights as to both parents. After the Department filed its motion, Mother relinquished her
rights in Child. The hearing on the motion was set for June 11, 2015. However, prior to the
hearing the Department filed an unopposed motion to vacate and reset the hearing because
a necessary witness was unavailable that day. The court did not reset the hearing, and the
motion for termination of parental rights was heard on June 11, 2015. At the conclusion of
that hearing, the court denied the Department’s motion, but ordered that custody of Child
was to remain with the Department. The Department filed its second motion to terminate
Father’s parental rights in Child on October 16, 2015, and the hearing on that motion was
set for December 10, 2015.
{4} At the beginning of the second termination hearing, the district court took judicial
notice of the no contest plea entered into by Father in February 2014. Also, counsel for
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Father moved to clarify the scope of the inquiry, arguing that the “Benjamin O. cases”
indicated that the court should only look at what had happened since the last hearing, i.e.,
June 11, 2015 to December 10, 2015, and should not consider what happened prior to the last
hearing. The court ruled that the Department could present evidence regarding events that
preceded that earlier termination of parental rights hearing and could also present any new
information concerning what had occurred since the first hearing.
{5} The first witness to testify was Edward Alvarez, who worked for Superior Drug
Testing in Las Cruces, New Mexico. Mr. Alvarez testified that Father was referred by the
Department on July 8, 2015. According to Mr. Alvarez, it was decided that Father’s case
worker, Ana Dominguez, would initially make contact with Father to describe the drug-
testing procedure and then Father would contact Mr. Alvarez to discuss specifics and any
questions. Father initially went to Superior Drug Testing on July 27, 2015, but Mr. Alvarez
was not present and no testing was performed. Mr. Alvarez’s first interaction with Father
was on October 12, 2015, when Father arrived at the office. Father did not call Superior
Drug Testing between July 27 and October 12. During Father’s October 12 visit, he refused
to have a hair follicle test performed. Father next came to the office on October 20, 2015,
and a hair follicle test was performed. Father came into the office on October 23, 2015, but
no testing was performed. The last time Mr. Alvarez heard from Father was on October 26,
2015. Mr. Alvarez reaffirmed that his understanding was that Ms. Dominguez would initially
explain the process for calling in, but he was unsure if Father had in fact been informed of
the procedure on July 27, 2015.
{6} Anthony DeCorte, a licensed independent social worker and clinical
therapist/supervisor at Nava Counseling Services (Nava) in Las Cruces, testified that the
Department referred Father for substance abuse and mental health assessments to Nava on
June 18, 2015. Father initially missed substance abuse assessments on July 9, 2015 and July
30, 2015, and he missed mental health assessments on November 13, 2015 and November
23, 2015. Mr. DeCorte eventually saw Father on November 30, 2015. Although Father never
completed a substance abuse assessment, part of Father’s mental health assessment evaluated
his substance abuse issues. Mr. DeCorte diagnosed Father as having panic disorder,
cannabis-use disorder, and stimulant-use disorder and recommended that Father participate
in individual therapy, an anger management treatment group, and substance abuse treatment.
He informed Father of those recommendations, Father was “open” to them, but to Mr.
DeCorte’s knowledge services had not started. He noted that Father’s diagnoses would not
necessarily prevent a person from being able to parent a child, as long as treatment was being
received.
{7} Wade C., Father’s brother, testified that Child had been living with him since August
2015 and that he was willing to adopt her. He stated that Child needs consistency, structure,
and counseling for her anxiety, depression, and learning disabilities. He had contact with
Father maybe once every two months, and he was unaware of where Father was living or
whether Father had a job. He expressed concerns about Child’s needs and did not believe
Father could meet those needs. He indicated that Father had a visit with Child several weeks
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before the hearing and had missed a visit the week before the hearing. Wade C. testified that
Child exhibited depression after missing that visit with Father and that Child’s depression
and anxiety minimizes “when there is a consistent period of no contact” with Father. He
testified that he has two other children and that they relate to Child like siblings.
{8} Leslie Peterson was Father’s permanency planning case worker from October 2014
to May 2015. Ms. Peterson referred Father for therapy at Mesilla Valley Hospital in Las
Cruces and for urinalyses. She also referred Father to La Frontera in Las Cruces to assist him
in dealing with his addictions. She reported that Father was inconsistent in attending therapy,
and she spoke with Father sporadically. In November 2014 Father was “on track,” had
electrical contracting work, and was living in a home with roommates. After that Father was
inconsistent, and by January 2015 Father was living at a church office. Father told Ms.
Peterson that he missed the therapy sessions because he was busy or because of conflicts
with his job requirements. While she had the case, Ms. Peterson did not see Father make any
progress toward alleviating the causes and conditions that brought Child into the
Department’s custody.
{9} Dr. Marc Caplan, a licensed psychologist, testified that, pursuant to the Department’s
referral, he conducted a psychological evaluation of Father in November 2014. In addition
to a clinical interview, Father was administered a battery of tests. Father was cooperative but
did not offer many details and complained he was not feeling well the day of the assessment.
The tests administered to Father showed that Father functioned at a “borderline to low
average range of intelligence,” had difficulty communicating verbally, and struggled with
“organizing his thoughts.” Father seemed to struggle with “expansive mood[s],” and there
were indications of psychotic and disorganized thinking that may have corresponded “to
what [Father] reported as earlier diagnoses of anxiety disorder and possibly schizophrenic
disorder.” Although Father did not show any positive signs of schizophrenia during the
evaluation, Dr. Caplan did note some minor indications of the negative signs of
schizophrenia, i.e., affect and organization of thinking issues. Based on tests related to child
abuse potential and parenting stress index, Father showed rigidity and presented with distress
and depression, which Dr. Caplan stated were “likely to contribute to making parenting more
difficult.” Dr. Caplan noted that Father perceives Child as demanding, which can be
overwhelming for Father. Father had a general sense of how to approach limit-setting and
boundary-setting with Child but tends to be inconsistent. Father admitted to regular use of
marijuana to calm him, and Dr. Caplan indicated that Father could struggle to care for Child
if not engaged in treatment and ongoing parent training. Dr. Caplan diagnosed Father with
an “unspecified schizophrenic-spectrum disorder.” Father indicated to Dr. Caplan that he
was not in treatment at the time of the evaluation. Dr. Caplan emphasized that Father’s
elevated score on the child abuse potential does not necessarily show that he has or will
abuse a child, but merely indicated that he looks like a population that is known to have
abused. Father self-reported irritability and hostility, and Dr. Caplan indicated that those
responses could impact a child in an adverse manner. Dr. Caplan acknowledged that
treatment possibly could be effective for Father, but expressed concern that Father was
inclined to “externalize responsibility,” meaning that Father felt that the problems he was
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experiencing were everyone else’s fault.
{10} Jeromy Brazfield testified that he was the investigations supervisor in this case in
September 2013. Mr. Brazfield participated in a family centered meeting in 2013 at which
point Child was placed on a forty-eight-hour hold. At the time of the family centered
meeting, Father was involved in vocational rehabilitation services. Although the investigator
on the case instructed that a release should be obtained from Father to secure additional
services, the Department had difficulty getting signed releases from Father. Mr. Brazfield
supervised at least two drug tests administered to Father and recalled that visits were to be
set up with Child and Father.
{11} Misty Castillo, a permanency planning case worker supervisor, testified that Child
came into the Department’s custody in September 2013 due to concerns about Mother’s and
Father’s alleged substance abuse, domestic violence, and concerns about mental health. Ms.
Castillo began supervising the case in June 2014. She testified that referrals were made to
service providers in Albuquerque, New Mexico, and in Las Cruces. Father was referred to
La Frontera in Las Cruces for individual counseling, substance abuse group sessions, a
psychiatric evaluation, and a referral was also made for a psychological evaluation. He was
also referred to Superior Drug Testing for random drug screens.
{12} In the summer of 2014, Child was placed with her paternal grandparents and
supervised visits were to occur once a week. Ms. Castillo did not receive any records
regarding drug tests from Superior Drug Testing but was aware that Father had called in on
one occasion. Father reported to the Department that he was living in different places at the
time, including with a roommate in a converted garage, in his car, and in a church office. To
Ms. Castillo’s knowledge, Father did not have a steady job in 2014, although he did report
having some electrical work. Father reported to Ms. Castillo that he was receiving treatment
but she was unable to confirm that. In an attempt to confirm Father’s reports, the Department
reached out to La Frontera a number of times but was unable to reach them due to La
Frontera’s transition and ultimate closure. Ms. Castillo testified that the Department was
looking for progress on sobriety, mental health, as well as stable housing and employment,
but she did not see that Father made any progress while she was involved in the case. Ms.
Castillo did not believe Father could safely parent Child at the time of the hearing.
{13} Ms. Dominguez, one of Father’s case workers, testified that she was assigned to
Father’s case in June 2015. Ms. Dominguez discussed Father’s treatment plan with him face-
to-face in July 2015, at which time Father indicated he was already aware of the plan. Ms.
Dominguez made a substance abuse referral to Nava in June 2015 and followed up with
them approximately six times to monitor Father’s progress. Father was informed of the
referral in June or July 2015 and was informed that Nava was going to see him for substance
abuse, domestic violence, and mental health. Ms. Dominguez informed Father that Nava
would be calling, and then later, when Father did not receive a call, he was told to call Nava.
Father completed his assessment with Nava on November 30, 2015. Per the treatment plan,
Father signed releases when asked by Ms. Dominguez and provided names to the
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Department “for relative placement.” Ms. Dominguez discussed random drug testing with
Father, and he provided one sample for a hair follicle test and one sample for a urinalysis
test. Ms. Dominguez inspected the office where Father was living and noted that there was
no second bedroom where Child could stay, and it was not an appropriate living space for
Child. Father indicated to Ms. Dominguez that he was looking for an apartment that would
be appropriate for Child, but Ms. Dominguez testified that he was still living in the office
at the end of October 2015. To Ms. Dominguez’s knowledge, Father had not completed any
domestic violence program.
{14} As to visitation, which was also part of the treatment plan, Father initially had visits
with Child through Father’s parents. However, in August 2015, after a family centered
meeting that Father missed, Child was moved to Wade C.’s home and a referral was made
to Family Youth, Inc. (FYI) to assist with supervised visitation. Father was told to contact
FYI to fill out an intake form for visitation. Father contacted FYI in November 2015, and
to Ms. Dominguez’s knowledge, he attended one visit and missed one visit. When Ms.
Dominguez first took over the case in June 2015, she had regular contact with Father.
However, it became difficult to reach Father beginning in the middle of July/August 2015.
In the months of August through November 2015, she was only able to speak with Father
once a month. Ms. Dominguez did not believe Father was able to meet Child’s needs at the
time of the hearing. He had not alleviated the causes and conditions that brought Child into
custody, nor would he be able to in the foreseeable future.
{15} Father was the final witness to testify. Father testified that he secured housing and
that he had been living there for the past two and a half months. Father performs electrical
work for his landlords, their family, and also for his father. Father testified that he had
approximately five Department case workers over the course of the case and that he had
difficulty with the treatment plan because of his unpredictable work schedule. He testified
that he sees a psychiatrist once every three months, and he is prescribed medication. He also
stated that he has received a variety of mental health diagnoses. Father also testified that, in
August 2014, he was hit by a drunk driver and suffered a back injury and that he informed
Ms. Dominguez of that injury. Father stated that he was misinformed about the family
centered meeting in August 2015, and he felt “left in the dark.” Father testified that he
attended a parenting class, as well as individual and group therapy at La Frontera in 2014.
Father expressed that he loved Child and would do what it took to work on his mental health
issues. He requested that he be permitted to attend “rehab” and then be allowed a month,
after completing rehab, to show that he could meet Child’s needs. On cross-examination,
Father admitted to having been arrested and charged in El Paso, Texas in September 2015
for drug paraphernalia.
{16} The district court entered findings of fact and conclusions of law on January 28,
2016, concluding in relevant part that Father had not alleviated the causes and conditions
that brought Child into custody and that the causes and conditions were unlikely to change
in the foreseeable future despite reasonable efforts by the Department to assist Father. An
order terminating Father’s parental rights was filed on February 10, 2016, and this appeal
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followed.
DISCUSSION
{17} On appeal, Father makes two arguments: (1) that the district court erred in not
limiting the evidence to events that occurred after the first termination of parental rights
hearing, and (2) that there was insufficient evidence Father had not alleviated the causes and
conditions that led to Child being taken into custody by the Department or that he would not
do so in the foreseeable future. We address each argument in turn.
I. Limitation on Evidence
{18} Father argues that under the reasoning of State ex rel. Children, Youth & Families
Department v. Benjamin O. (Benjamin O. I), 2007-NMCA-070, 141 N.M. 692, 160 P.3d
601, the district court erred in failing to limit evidence at the second hearing to events that
occurred after the first hearing. To the extent our analysis requires interpretation of the
Abuse and Neglect Act, NMSA 1978, §§ 32A-4-1 to -34 (1993, as amended through 2016),
our review is de novo. Benjamin O. I, 2007-NMCA-070, ¶ 24. Before addressing the parties’
specific arguments regarding any limitation on the evidence in this case, we find it useful to
give a brief history of the Benjamin O. cases, including the 2007 case upon which Father
relies.
{19} The first case in the Benjamin O. saga, State ex rel. Children, Youth & Families
Department v. Shawna C., 2005-NMCA-066, 137 N.M. 687, 114 P.3d 367, dealt with the
district court’s adjudication that the mother and the father abused and neglected their
daughter. Id. ¶ 1. In Shawna C., this Court reversed the adjudication of abuse or neglect as
to the father, noting that “[e]vidence of [the f]ather’s somewhat aged criminal history, his
anger, his mental health issues as diagnosed by the psychologist, and the fact that he
‘permitted’ [his mother] to care for [the c]hild while [his mother] ingested drugs, while not
reflecting exemplary behavior, does not support anything more than a vague inference of
future harm.” Id. ¶ 22. However, while the parents’ appeal as to the adjudication was
pending, the district court continued to monitor the case, and the Department ultimately filed
a motion to terminate the parental rights of both parents. Id. ¶¶ 7-12; see Benjamin O. I,
2007-NMCA-070, ¶ 1.
{20} The parties learned of this Court’s opinion in Shawna C. on the last day of the
hearing on the Department’s motion to terminate parental rights as to the mother and the
father, and upon learning of that opinion, the district court ordered the hearing continued and
asked that briefs be submitted by the parties on the issues raised by the opinion in Shawna
C. Benjamin O. I, 2007-NMCA-070, ¶¶ 13, 14. After considering both parties’ arguments
regarding the district court’s role post-Shawna C., the court ruled that it had jurisdiction to
hear the motion to terminate and granted the Department’s request to conduct further
investigation with respect to the father and to reopen the termination hearing if necessary.
Benjamin O. I, 2007-NMCA-070, ¶¶ 14-18. Less than two months after the adjudication was
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reversed, the Department filed supplemental allegations regarding the father in support of
its motion to terminate his parental rights, and after the Department presented additional
evidence, the father’s rights were terminated. Id. ¶¶ 19-22. That termination was appealed
and resulted in this Court’s opinion in Benjamin O. I, 2007-NMCA-070.
{21} In Benjamin O. I, we stated that the issue presented was “what happens after an
adjudication of abuse or neglect is reversed during termination of parental rights
proceedings.” Id. ¶ 23. In analyzing the father’s arguments on appeal, we held that “[w]hile
we do not disagree with [the f]ather’s assertion that the district court may not rely on an
adjudication of abuse or neglect that has been reversed on substantive grounds,” we were not
convinced that the district court so relied, and we specifically noted that the father’s rights
could still be terminated based on his current inability to care for the child. Id. ¶ 33.
Although we held that the father’s rights could ultimately be terminated, we reversed the
district court’s order terminating his parental rights and remanded the case due to a lack of
specific findings by the district court. Id. ¶¶ 33, 47-48.
{22} Approximately one year after we issued our opinion in Benjamin O. I and remanded
the case, the Department filed an amended motion to terminate the father’s parental rights.
State ex rel. Children, Youth & Families Dep’t v. Benjamin O. (Benjamin O. II), 2009-
NMCA-039, ¶¶ 7, 10, 146 N.M. 60, 206 P.3d 171. “The motion realleged the original
allegations and the 2005 supplemental allegations[,] . . . [and] new allegations of
abandonment or presumptive abandonment.” Id. ¶ 10. After a three-day hearing on the
motion, the district court entered extensive findings of fact and conclusions of law and
entered a judgment terminating the father’s parental rights. Id. That termination was
appealed and resulted in our opinion in Benjamin O. II, 2009-NMCA-039, in which “we
conclude[d] that clear and convincing evidence supported the district court’s determination
that [the f]ather abandoned [the c]hild and that the district court complied with the
requirements of Benjamin O. [I].” Benjamin O. II, 2009-NMCA-039, ¶ 42.
{23} In the present case, Father argues that our statement in Benjamin O. I that the
Department could seek termination by bringing “new or current allegations of abuse, neglect,
or abandonment to the district court’s attention” means that termination can only be pursued
based on facts that occurred after the district court’s denial of the first motion to terminate.
2007-NMCA-070, ¶ 39. Father argues that, because the court in this case denied the
Department’s first motion to terminate due to a lack of clear and convincing evidence that
the statutory requirements for termination had been satisfied, the Department was limited to
presenting evidence of abuse or neglect after the district court’s June 2015 denial of the
Department’s motion. Father argues that it was unfair to hold past conduct against him, and
the focus should have been on Father’s situation since June 2015.
{24} The Department responds that the facts in Benjamin O. I are not analogous to the
present case and thus the district court did not err in allowing testimony regarding events that
occurred prior to the first termination hearing. According to the Department, the issue before
this Court in Benjamin O. I was “what steps the district court and [the Department] should
8
take following the appellate reversal on substantive grounds of a prior adjudication of abuse
and neglect while [the Department] is in the process of attempting to terminate a parent’s
parental rights.” Id. ¶ 1. The Department argues that in this case, Father stipulated at the
adjudicatory hearing that Child was neglected and does not challenge the finding of neglect
on appeal. The Department notes that its first attempt to terminate Father’s parental rights
was unsuccessful because it did not present evidence regarding its efforts to assist Father,
and thus the court could not determine whether its efforts were reasonable. The Department
argues that the fact the first motion was denied does not make all preceding evidence
irrelevant. Finally, the Department asserts that even if it was required to limit the evidence
presented at the second termination hearing to events that occurred after the first termination
hearing, the judgment is still supported by substantial evidence, noting Father’s ongoing
substance abuse and mental heath issues, lack of participation in the process, inconsistent
contact with the Department, and minimal visitation with Child.
{25} We hold that to the extent Benjamin O. I limits the Department’s ability to present
prior evidence when an adjudication is overturned on appeal, it does not apply here because
this case does not deal with a reversed adjudication. None of the Benjamin O. cases stand
for the proposition that when a motion for termination of parental rights is denied, all
evidence preceding that denial must be ignored in future attempts to terminate parental
rights. To ignore all preceding evidence when there is no dispute as to the adjudication of
abuse or neglect, which could include a parent’s history of compliance, information about
the causes and conditions that led to the child being taken into custody, attempts to alleviate
those causes and conditions, etc., would be to limit the district court’s access to information
that is needed to appropriately assess whether a parent’s parental rights should be terminated.
We decline to extend Benjamin O. I because doing so would force courts to make important
decisions based on information that is incomplete or without needed context.
{26} Because Benjamin O. I is not applicable and because we see no value in extending
its application to this case, we conclude that the district court did not err in allowing the
Department to present evidence of events preceding the first hearing on the first motion to
terminate parental rights.
II. Sufficiency of the Evidence
{27} “The standard of proof in cases involving the termination of parental rights is clear
and convincing evidence.” State ex rel. Children, Youth & Families Dep’t v. Vanessa C.,
2000-NMCA-025, ¶ 24, 128 N.M. 701, 997 P.2d 833. “Clear and convincing evidence” is
defined as evidence that “instantly tilt[s] 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 Termination of Parental Rights of Eventyr J., 1995-NMCA-087,
¶ 2, 120 N.M. 463, 902 P.2d 1066 (internal quotation marks and citation omitted). We “view
the evidence in the light most favorable to the prevailing party, and . . . determine therefrom
if the mind of the fact[-]finder could properly have reached an abiding conviction as to the
truth of the fact or facts found.” State ex rel. Children, Youth & Families Dep’t v. Michelle
9
B., 2001-NMCA-071, ¶ 12, 130 N.M. 781, 32 P.3d 790 (internal quotation marks and
citation omitted).
{28} In this case, the district court terminated Father’s parental rights pursuant to Section
32A-4-28(B)(2), which provides for termination when:
the child has been a neglected or abused child as defined in the Abuse and
Neglect Act and the court finds that the conditions and causes of the neglect
and abuse are unlikely to change in the foreseeable future despite reasonable
efforts by the department or other appropriate agency to assist the parent in
adjusting the conditions that render the parent unable to properly care for the
child.
{29} Father does not dispute that Child was a neglected child; however, Father argues on
appeal that there was insufficient evidence that he had not alleviated the causes and
conditions that led to Child being taken into custody or that he would not do so in the
foreseeable future despite reasonable efforts by the Department. Specifically, he contends
that he made efforts to comply with his treatment plan and was progressing and that the
Department failed to make reasonable efforts to assist him with his treatment plan by not
obtaining a clear assessment of his mental health. Father points to testimony that there were
many different Department workers assigned to his case, that La Frontera closed, and that
there was confusion about what he was required to do with various referrals. He also asserts
that he was confused about the visitation process and attributes his inconsistency to the car
collision that he was in and to his work schedule. He argues that despite his struggles with
the treatment plan, he attended two assessments, participated in two drug tests, was set up
for visitation, had obtained housing, and participated in some classes and therapy at La
Frontera prior to its closure. Father also argues that the Department did not make reasonable
efforts to assist him because he did not receive a clear assessment of his mental health
diagnoses. He asserts that because Dr. Caplan’s and Mr. DeCorte’s diagnoses were different,
he never received accurate and definitive diagnoses and did not receive appropriate
treatment.
{30} The Department responds that the fact Dr. Caplan’s and Mr. DeCorte’s assessments
differed does not mean that they were inaccurate or that the Department’s efforts to assist
Father were unreasonable. The Department notes that the assessments occurred a year apart,
and the circumstances surrounding each evaluation were different. The Department also
highlights a number of efforts to assist Father, including its numerous, appropriate referrals
to assist Father in addressing his issues, its attempts to maintain contact with Father, and its
efforts to give Father an opportunity to regularly visit with Child. The Department then
disputes Father’s position that clear and convincing evidence did not support the district
court’s finding that Father had not alleviated the causes and conditions of neglect or would
be unable to in the foreseeable future. In support of its argument, the Department notes that
Father had made little to no progress, did not consistently participate in counseling, did not
maintain contact despite efforts by the Department, and did not show how his work schedule
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prevented him from participating in treatment. The Department also argues that the evidence
Father construes as showing effort instead shows that Father made no effort to timely follow
through with recommendations. The Department states that Father had not started therapy
and group sessions, had only participated in two drug tests over a six-month period, only
made minimal effort to visit with Child, and, in fact, had missed a visit just one week prior
to the termination hearing. The Department highlights the fact that Child had been in custody
for over two years by the time of the second termination hearing and argues that it is
reasonable to infer that he would not be able to address his substance abuse and mental
health issues in the foreseeable future.
{31} We hold that there was sufficient evidence for the district court to conclude that
Father had not alleviated the causes and conditions that led to Child being taken into custody
and that he would not do so in the foreseeable future, despite reasonable efforts by the
Department to assist Father. As noted by the Department, Father was not consistent in
attending treatment or counseling services despite numerous referrals and the fact that both
Dr. Caplan and Mr. DeCorte indicated that services were needed. Father missed two
substance abuse assessments and only completed a mental health assessment less than two
weeks prior to the second termination hearing. Father’s participation in drug screenings was
inconsistent, and he attributed his lack of participation to his schedule. Father waited two
months to fill out the intake paperwork with FYI to begin supervised visitation with Child
once she was moved to her uncle’s residence, and although Father testified that he had
recently secured housing, the court found that he did not have stable housing as required by
his treatment plan, and the Department had not confirmed nor conducted a home visit of that
residence. Father was inconsistent in his contact with the Department, even though he was
ordered to maintain contact as part of his treatment plan.
{32} Although Father attempts to bolster his position by highlighting evidence that he
believes shows some progress, our standard of review requires us to view the evidence in the
light most favorable to the prevailing party and determine whether the clear and convincing
evidence standard was met, “not whether the trial court could have reached a different
conclusion.” State ex rel. Children, Youth & Families Dep’t v. Patricia H., 2002-NMCA-
061, ¶ 31, 132 N.M. 299, 47 P.3d 859. Given that standard and the evidence presented in this
case, we conclude that the evidence supported termination of Father’s parental rights in
Child.
CONCLUSION
{33} For the reasons set forth in this opinion, we affirm.
{34} IT IS SO ORDERED.
____________________________________
JONATHAN B. SUTIN, Judge
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WE CONCUR:
____________________________________
M. MONICA ZAMORA, Judge
____________________________________
HENRY M. BOHNHOFF, Judge
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