1999 -NMCA- 36, Michael R.C., In re

• Decision Date: 22 January 1999
• Docket Number: No. 19400,19400
• Citation: 126 N.M. 760,975 P.2d 373,1999 NMCA 36
• Parties: 1999 -NMCA- 36 In the Matter of MICHAEL R.C. and Henry A.R.C., Children, State of New Mexico, ex rel., Children, Youth and Families Department, Petitioners-Appellees, v. Erika M. and Henry R.C., Respondents-Appellants.
• Court: Court of Appeals of New Mexico

Page 373

975 P.2d 373

1999 -NMCA- 36

In the Matter of MICHAEL R.C. and Henry A.R.C., Children,

State of New Mexico, ex rel., Children, Youth and Families

Department, Petitioners-Appellees, v. Erika M. and Henry R.C., Respondents-Appellants.

No. 19400.

Court of Appeals of New Mexico.

Jan. 22, 1999.

Angela L. Adams, Chief Children's Court Attorney, Roy E. Stephenson, Children's Court Attorney, Santa Fe, for Appellees.

Jane Bloom Yohalem, Santa Fe, for Appellants.

W. Karen Cantrell, Placitas, for Guardian ad Litem.

OPINION

PICKARD, Judge.

¶1 The trial court terminated the parental rights of Erika M. (Mother) to her two sons, Michael and Henry, by granting summary judgment in favor of the Children, Youth, and Families Department (the Department). Mother contends that summary judgment was inappropriate because she had raised material issues of disputed fact. We agree and reverse.

BACKGROUND

¶2 The underlying facts of this case are not in dispute. Michael and Henry were taken into the Department's custody in March 1994. The Department then filed an abuse and neglect petition alleging that the children were not being adequately cared for. The petition cited injuries to Michael, the parents' lack of food and medical supplies, and possible domestic violence and sexual abuse being perpetrated by Father. Father pled no contest to child abuse and negligent endangerment. Mother pled no contest to the allegation of insufficient supervision pursuant to NMSA 1978, § 32A-4-2(C)(3) (1997) (failure to protect children when parent knew or should have known that they had been physically or sexually abused).

¶3 The children were taken into a foster home, and the court implemented a treatment plan aimed at reunification of Mother and the children. Over the course of the next thirty or so months, the trial court held periodic judicial review hearings and entered judicial review orders based primarily on reports by counsel and the Department's evaluation of Mother's progress. The trial court often adopted the Department's reports as findings. The first judicial review order, entered in early 1995, reflected the fact that Mother was making some effort to comply with the treatment plan and maintain contact with the children. Although this compliance was limited by Mother's difficult pregnancy with twins, the Department reported positive interaction between Mother and the boys at issue here.

¶4 Two judicial reviews later in that year also reported Mother's positive interactions with the children and her diligent efforts to maintain contact with the boys. At that point, the boys were moved to a treatment foster home that could better address their behavioral disorders.

¶5 Two more judicial review hearings were held in 1996. At the first, the Department's case synopsis reflected Mother's continued compliance with the treatment plan and a recommendation that steps toward reunification continue to be made. The Department recommended hands-on parenting training with the treatment foster parents. At the second judicial review hearing that year, though, the feedback was mixed. On the one hand, some feedback noted that Mother was participating in Michael's Peanut Butter & Jelly Therapeutic Preschool and that the staff there was reporting favorably about her interactions with the boys. In contrast, a therapist's report described Mother's interaction with the children at that time as poor. In addition, the foster parents asserted that in their opinion Mother was unable to provide adequately for the children, and they expressed opposition to the reunification plan. The judicial review order resulting from this hearing again noted that Mother had made reasonable efforts to comply with treatment, and it continued the reunification plan.

¶6 In 1997, the Department changed its position and proposed termination of Mother's parental rights. At that judicial review hearing, the foster parents again addressed the court, offering negative opinions about Mother's parenting abilities. The Department also relied on negative reports by two therapists. Reports from the Milagro program and the Peanut Butter & Jelly School were more positive about Mother's abilities. The court adopted the Department's report as a part of its findings, and it agreed with the recommendation of termination, finding that Mother had made insufficient efforts to cooperate with the prescribed treatment plan.

¶7 At the final judicial review prior to the filing of a petition to terminate Mother's parental rights, the Department noted that Mother's visits had become inconsistent and requested a finding that future efforts to assist Mother would be futile. Mother's counsel disagreed, arguing that the treatment meetings were held in Los Lunas, which made them difficult for Mother to attend. Mother also argued that the foster parents had become uncooperative and strongly encouraged the children to view them as their true parents.

¶8 The Department filed a motion to terminate Mother's parental rights. The motion sought termination based on neglect and constructive abandonment pursuant to NMSA 1978, §§ 32A-4-28(B)(2) and -28(B)(3) (1997). The Department filed a motion for summary judgment, relying in part upon the opinions of a psychologist and a therapist who concluded that permanent placement with the foster parents was in the children's best interest and a social worker who suggested that Mother was unable to master necessary parenting skills. The Department also relied on the various judicial review orders that the trial court had adopted as findings. The guardian ad litem agreed with the Department's position.

¶9 Mother argued, in response to the summary judgment motion, that facts were in dispute. She contended that the necessary element of disintegration of her relationship with the children was in dispute, in part due to the foster parents' interference and in part due to the differing opinions regarding whether she was bonded with the children. She also argued that her ability to care for the boys properly was in dispute.

¶10 The trial court entered an order finding no genuine issue or dispute as to material facts and granting summary judgment, thereby terminating Mother's parental rights. Mother now appeals.

DISCUSSION

Standard of Review

¶11 In reviewing an appeal from a grant of summary judgment, this Court examines the record to determine whether there are issues of material fact or evidence that puts a material fact in dispute. See Silva v. Town of Springer, 1996-NMCA-022, p 5, 121 N.M. 428, 912 P.2d 304. We view the evidence in the light most favorable to requiring a trial or hearing on the merits of the case and most favorable to the party opposing summary judgment. See Hyden v. Law Firm of McCormick, Forbes, Caraway & Tabor, 115 N.M. 159, 163, 848 P.2d 1086, 1090 (Ct.App.1993). If no disputed material fact exists, the moving party is entitled to judgment as a matter of law. See Rule 1-056(C) NMRA 1998.

¶12 This Court has, in the abstract, deemed summary judgment appropriate in termination of parental rights proceedings where no genuine issues of fact are in dispute. See State ex rel. Children, Youth & Families Dep't In re T.C., 118 N.M. 352, 353-54, 881 P.2d 712, 713-14 (Ct.App.1994). In addition, our Supreme Court has upheld a summary judgment terminating the parental rights in the unique situation of a father who had murdered the child's mother and was sentenced to a lengthy period of incarceration. See State ex rel. Children, Youth & Families Dep't v. Joe R., 1997-NMSC-038, p 10, 123 N.M. 711, 945 P.2d 76.

¶13 However, even when the facts are undisputed, if conflicting inferences can be drawn, summary judgment is improper. See Trujillo v. Treat, 107 N.M. 58, 59-60, 752 P.2d 250, 251-52 (Ct.App.1988). It is important to recall that we are not dealing with a substantial evidence standard in this case. Because we are dealing with summary judgment, it is worth heeding the Supreme Court's admonition that a surmise that " 'the adverse party is unlikely to prevail at the trial is not sufficient to authorize summary judgment against him.' " United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 178 n. 30, 629 P.2d 231, 254 n. 30 (1980) (quoting American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 n. 9 (2d Cir.1967)).

Material Issue of Disputed Fact

¶14 Mother contends that she raised material issues of disputed fact that should have defeated the Department's motion for summary judgment. Specifically, Mother claims that the children's foster parents interfered with her relationship with them such that whether she was responsible for a disintegration of the parental relationship was in dispute. The Department argues that even if this fact was in dispute, it was not material to the termination of parental rights, and therefore summary judgment was proper. The Department also claims that Mother did not allege a factual dispute regarding the neglect basis for termination.

¶15 The Department's termination petition was based on both neglect and constructive abandonment. See §§ 32A-4-28(B)(2), (3). Those sections provide for termination when:

(2) 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. The court may find in some cases that efforts by the department or another agency are unnecessary, when there is a clear showing that the efforts would be futile or when a parent has caused great bodily harm to the child or great bodily harm or death to the child's sibling; or

(3) the child has been placed in the care of others, including care by other relatives, either by a court...