1999 -NMCA- 35, State ex rel. Children, Youth and Families Dept. v. Ruth Anne E., No. 19266

• Docket Nº: No. 19266
• Citation: 126 N.M. 670, 1999 NMCA 35, 974 P.2d 164
• Case Date: January 28, 1999
• Court: Court of Appeals of New Mexico

Page 164

974 P.2d 164 1999 -NMCA- 35 STATE of New Mexico, ex rel. CHILDREN, YOUTH AND FAMILIES
DEPARTMENT, Petitioner-Appellee,
v.
In the Matter of RUTH ANNE E., Sonya Sue E., and Blanca
Alicia E., Children, and concerning Lorena R. and
Robert E., Robert E., Respondent-Appellant. No. 19266. Court of Appeals of New Mexico. Jan. 28, 1999.

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Angela L. Adams, Chief Children's Court Attorney, Roy E. Stephenson, Children's Court Attorney, Children, Youth & Families Dep't, Santa Fe, for Appellee.

Nancy L. Simmons, Albuquerque, for Appellant.

Judy Bailey, Cedar Crest, Guardian ad Litem for Children.

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OPINION

DONNELLY, Judge.

¶1 Robert E. (Father) appeals from a judgment terminating his parental rights to his three minor children, Ruth Anne E., Sonya Sue E., and Blanca Alicia E., ages eight, six, and four, respectively. The dispositive issue presented on appeal is whether Father was deprived of an opportunity to appear or to meaningfully defend against the action to terminate his parental rights. Because we conclude that Father was denied due process of law, we reverse and remand for a new hearing on the motion to terminate Father's parental rights.

FACTS AND PROCEDURAL POSTURE

¶2 On January 9, 1995, the Children, Youth and Families Department (the Department) received a report that Lorena R. (Mother) had left her three minor children with a babysitter in Albuquerque, New Mexico, and had failed to return for them. The children were placed in the temporary custody of the Department.

¶3 Although the police located Mother and notified her that the children had been placed in protective custody, she did not contact the Department and she subsequently disappeared. Approximately six months later, in July 1996, Mother reappeared and indicated a desire to regain custody of her children. She stated that she had been attending a drug and rehabilitation program in Texas. Mother, however, subsequently regressed, began using drugs again, and failed to keep in contact with the children or the Department.

¶4 At the time the children were initially taken into protective custody, Father was incarcerated in a Texas prison serving a sentence on a felony conviction. Father was served with a copy of the petition, alleging that the children were neglected and abused. He filed an answer asserting that he was in prison in Texas, that he was indigent, and that he wished to contest "Petitioner's Original Petition For Termination." Father's answer sought the appointment of a court-appointed attorney to represent him, and requested "that he [be permitted] to be present at any proceeding affecting the custody of [his] children as a matter of due process and equal protection of the law." Father also requested that the children's court issue an order directing that he be transported to the court so that he could "present testimony concerning the future of his natural children and defend his rights." Alternatively, Father requested that the children's court grant a continuance until "such time as [he was] released from the penitentiary and ... able to appear in Court and defend [such] suit." The children's court appointed separate counsel to represent Father and Mother, and appointed a guardian ad litem to represent the children.

¶5 The children's court issued an order directing the Bernalillo County Sheriff's Department to transport Father from the correctional facility in Texas to an adjudicatory hearing scheduled for May 16, 1995; however, the order could not be enforced.

¶6 On July 30, 1997, the Department filed a motion seeking to terminate both Mother's and Father's parental rights. Father filed a response contesting the motion. The children's court scheduled a hearing on the merits for November 26, 1997, in Albuquerque. At the hearing on the merits, Father's attorney informed the children's court that Father had been released from prison but had been reincarcerated on a new charge, and that he expected to be released from jail in the immediate future. His attorney requested that the children's court grant a continuance so that Father could appear and testify. The children's court denied the request and directed that the hearing proceed.

¶7 The only witnesses who testified at the hearing on the motion to terminate parental rights were witnesses called by the Department. Neither Father nor Mother were present, although the witnesses called by the Department were cross-examined by counsel who had been appointed to represent Father and Mother. At the conclusion of the hearing, the children's court found that the children were abused and neglected, that the parental bond between the parents and the children had disintegrated, and that the parental rights of Father and Mother should be terminated.

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DISCUSSION

¶8 On appeal, Father asserts, among other things, that incarceration alone is insufficient to support an allegation of abandonment, that his procedural due process rights were violated because he "was never afforded an opportunity to participate in the merits of the trial involving termination of his parental rights," that he was precluded "from presenting evidence in his own defense" and that he was not given an opportunity to refute the matters presented by the Department.

¶9 Before addressing the merits of Father's due process challenge, we first determine whether under the facts shown here, this Court has jurisdiction to entertain Father's appeal. The judgment terminating Father's parental rights was filed on January 13, 1998. Father's court-appointed attorney filed a notice of appeal on February 13, 1998, one day past the thirty-day deadline prescribed by Rule 12-201(A) NMRA 1999 for the filing of an appeal. No request was made by Father's attorney for an extension of time within which to file the appeal. Father urges this Court to entertain the issues raised by his appeal despite the delay in the filing of his notice of appeal. He points out that in State v. Duran, 105 N.M. 231, 232, 731 P.2d 374, 375 (Ct.App.1986), this Court held that a conclusive presumption of ineffective assistance of counsel exists where a notice of appeal or a waiver of the right to appeal is not filed within the time limit prescribed by Rule 12-201(A). Cf. State v. Peppers, 110 N.M. 393, 398-99, 796 P.2d 614, 619-20 (Ct.App.1990) (assuming untimely appeal was the consequence of ineffective assistance of counsel).

¶10 We apply a similar result in the instant case and hold that Father's appeal should be deemed to have been timely filed. The mistake of counsel, under the circumstances existing here, should not deprive Father of appellate review on the merits. See State ex rel. Children, Youth & Families Dep't v. Tammy S., 1999-NMCA-009, p 20, --- N.M. ----, 974 P.2d 158 [Ct.App.1998] (right to effective assistance of counsel extends to cases involving termination of parental rights). See generally In re M.D. (S)., 168 Wis.2d 995, 485 N.W.2d 52, 54 (1992) ("It is axiomatic that the right to be represented by appointed counsel is worthless unless that right includes the right to effective counsel."). Under NMSA 1978, § 32A-4-10(B) (1993), counsel is required to be appointed for a parent or guardian in cases alleging neglect and abuse of a minor. See also NMSA 1978, § 32A-4-29(F) (1997) (requiring appointment of counsel for an indigent parent). In termination of parental rights cases, as in criminal cases, a fundamental liberty interest is at stake. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (recognizing "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child"); see also State ex rel. Children, Youth & Families Dep't v. Joe R., 1997-NMSC-038, p 29, 123 N.M. 711, 945 P.2d 76 ("Father's rights and obligations as a parent are protected by his constitutional right to due process."); In re Ronald A., 110 N.M. 454, 455, 797 P.2d 243, 244 (1990) (parents' right to custody is constitutionally protected).

¶11 We turn next to Father's challenge to the validity of the order terminating his parental rights, which is grounded upon his claim of denial of due process. Father argues that he was never afforded the opportunity to participate in the proceeding involving the termination of his parental rights. More specifically, he asserts he was precluded from "presenting evidence" in defense of the allegations of neglect and abandonment.

¶12 The Department urges this Court not to consider Father's due process claim, arguing that he failed to preserve such contention. The Department asserts that Father failed to sufficiently alert the children's court to his claim of denial of due process at the proceedings below. We disagree.

¶13 Father's answer to the petition to terminate his parental rights alleged that he did not have "sufficient funds or assets to hire an attorney to represent [Father's] interests in this lawsuit," attached an affidavit of indigency, and requested that the children's court appoint an attorney to represent him. The answer also requested a continuance in the termination hearing because of Father's incarceration in Texas, and stated

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that he "desire[d] to present testimony in his own behalf." Finally, the answer asserted that Father was entitled to be present at such proceeding "affecting the custody of [his] children as a matter of due process and equal protection of the law."

¶14 On October 29, 1997, the initial hearing date scheduled by the children's court, Father's court-appointed attorney specifically informed the children's court that Father was incarcerated in Texas. Counsel requested that the hearing be commenced and then continued to a later time so that Father could participate in the proceedings. The children's court acquiesced to that request. At the continuation of the hearing one month later, Father's counsel again requested a delay in the proceedings to permit Father to take part in the proceedings....