Darla D. v. Grace R. (In re Tristan R.)

• Decision Date: 31 August 2016
• Docket Number: NO. 34,327,34,327
• Parties: In the Matter of the Adoption Petition of Darla D. and Patty R., Petitioners–Appellees, v. Grace R., Respondent–Appellant, and In the Matter of Tristan R., Child.
• Court: Court of Appeals of New Mexico

382 P.3d 1000

In the Matter of the Adoption Petition of Darla D. and Patty R., Petitioners–Appellees,

v.Grace R., Respondent–Appellant,andIn the Matter of Tristan R., Child.

NO. 34,327

Court of Appeals of New Mexico.

Filing Date: August 31, 2016

Caren I. Friedman, Santa Fe, NM Brown & Gallegos Flora Gallegos Las Vegas, NM for Appellees.

Jane B. Yohalem, Santa Fe, NM for Appellant.

Law Office of Aida Medina Adams Aida Medina Adams Santa Rosa, NM Guardian Ad Litem.

OPINION

VANZI

, Judge.

{1} Grace R. (Mother) appeals from the district court's letter decision and decree of adoption and termination of parental rights, terminating her parental rights to Tristan R. (Child) and granting the verified petition for adoption and termination of parental rights (the petition) filed by Darla D. and Patty R. to adopt Child pursuant to the provisions of the Adoption Act, NMSA 1978, §§ 32A–5–1to –45 (1993, as amended through 2012). Mother challenges the letter decision and decree on numerous grounds, including that her constitutional and statutory rights were violated and that there was insufficient evidence to support the termination of her parental rights. We agree with Mother that multiple procedural and constitutional violations infected the proceedings below. We further conclude that the district court's rulings that Mother abused and neglected Child and that the conditions and causes of such neglect and abuse are unlikely to change in the foreseeable future are not, as they must be, supported by clear and convincing evidence. We therefore reverse.

BACKGROUND

{2} We begin with an overview of the factual and procedural background. Additional details necessary to our analysis of particular issues are provided in the discussion section below.

{3} Mother, who suffers from depression and post-traumatic stress disorder

as well as a physical illness, has been receiving support and therapy services through Life Link since about August 2009. In May 2013 Life Link lost funding for the program that subsidized Mother's rent, requiring Mother to move from the home in Santa Fe, New Mexico that she had been sharing with her boyfriend, Child, and Child's older sister. Concerned about finding housing she could afford, Mother became depressed and overwhelmed. On the morning of May 23, 2013, with a few days left to move and her daughter getting ready for summer school, Mother got into an argument with her boyfriend and began yelling at him. When he tried to restrain her, Mother “scratched and bit at him[.]” The police were called, and Mother was arrested and jailed for five days. She pleaded guilty to disorderly conduct and was sentenced to ten hours of community service and six months of unsupervised probation.

{4} While Mother was in jail, her children remained with her boyfriend. The Children, Youth and Families Department (CYFD) checked on the welfare of the children and determined that they were safe in his care. When Mother was released from jail, she contacted the Santa Fe CYFD office and asked CYFD worker Denise Shirley for help. Mother explained to Shirley that she felt her emotional stability was at risk: She was going to lose her home and had no family support, and she was requesting services offered by CYFD because they had been helpful in the past.

{5} CYFD and Mother agreed on a safety plan for the care of the children while Mother sought intensive treatment from Life Link to address her anxiety disorder and to help with coping skills. The safety plan provided that Child's older sister would fly to New Jersey to live with her biological father and Child would reside with his paternal grandmother, Darla D. (Grandmother). Although the children were not in CYFD custody, the safety plan was to remain “in effect until further reassessment by the family's CYFD caseworker.”

{6} On May 31, 2013, Grandmother and her partner, Patty R., (collectively, Petitioners) picked up Child at Mother's residence and took him to their home in Mora, New Mexico. While Child was living with Petitioners, Mother saw a counselor and caseworker at Life Link. She was placed on a waiting list for the Life Link intensive program but participated in the program as a “casual member” between July and September, attending therapy three times a week. In September 2013 Mother became an official member of the program. At the time of trial, Mother continued to receive counseling through Life Link.

{7} During the summer of 2013, Mother talked to Child on the phone at least once a week. Between August and September, she also saw Child four times when Grandmother was in Santa Fe with him. Later, Mother started calling Child nightly. However, Petitioners told Mother that the nightly calls were disruptive. They set up a schedule for Mother to call two days a week but sometimes did not answer the phone. Mother left messages stating her frustration with not being able to talk to Child.

{8} In early October 2013 Mother told Grandmother that she wanted to begin to reintegrate Child back into her life and that she was hoping to have him back in Santa Fe after Christmas. In November 2013 Grandmother had a disagreement with Mother concerning how often Mother could speak with Child and, shortly thereafter, Mother learned that Grandmother was trying to “serve [her] with something.” In fact, Grandmother had filed a petition for a restraining order (TRO petition) against Mother in the San Miguel County District Court, seeking to prevent Mother from having any contact with her or Child. The TRO petition was dismissed in early December 2013, after the district court held a hearing and concluded that Mother should visit Child and that phone calls should occur regularly. At that point, Mother had not seen Child in about a month and a half.

{9} In November 2013 after the TRO petition was filed, Mother was served with Petitioners' petition to terminate parental rights and to adopt Child in a closed adoption. The petition, which had been filed almost a month earlier in a separate proceeding in the district court, sought termination of the parental rights of Child's biological parents “on the basis of voluntary relinquishment of parental rights” and requested a judgment declaring the closed adoption of Child by Petitioners.

{10} On March 3, 2014, after a hearing, the district court appointed a guardian ad litem (GAL)—selected by Petitioners—for Child. The court held a merits hearing on the petition (for ease of reference, trial) on July 15 and 25, 2014, and entered its letter decision nearly three months later, on October 8, 2014. The letter decision contains no factual findings and merely states the following conclusions: Child “has been abused or neglected while in the care and custody of [Mother], and the conditions and causes of the neglect or abuse are unlikely to change in the foreseeable future”; Child “has been abandoned by his parents in that [C]hild has been placed in the care of [P]etitioners by [Mother]”; and “all of the conditions set forth in Section 32A–5–15(B)(3)(a-e) ... exist and have not been rebutted by [Mother.]” No party filed proposed findings of fact and conclusions of law. The decree of adoption and termination of parental rights was filed on November 5, 2014. This appeal followed.

DISCUSSION

{11} Our courts have repeatedly recognized that a biological parent's right to the care and custody of her child implicates fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions. See State ex rel. Children, Youth & Families Dep't v. John R. , 2009–NMCA–025, ¶ 27, 145 N.M. 636, 203 P.3d 167

(stating that “a parent has a fundamental interest in the care, custody, and control of his or her children”); see also

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”); State ex rel. Children, Youth & Families Dep't v. Joe R. , 1997–NMSC–038, ¶ 29, 123 N.M. 711, 945 P.2d 76 (“[A parent's] rights and obligations ... are protected by his constitutional right to due process.”); Ronald A. v. State ex rel. Human Servs. Dep't , 1990–NMSC–071, ¶ 3, 110 N.M. 454, 797 P.2d 243 (noting that a parent's right to custody is constitutionally protected). Although a parent's right is fundamental and superior to the claims of other persons and the government, it is not absolute. See

In re Adoption of Francisco A. , 1993–NMCA–144, ¶ 20, 116 N.M. 708, 866 P.2d 1175 (“It is well established in New Mexico that parents do not have absolute rights in their children; rather parental rights are secondary to the best interests and welfare of the children.”); In re Adoption of Bradfield , 1982–NMCA–047, ¶ 16, 97 N.M. 611, 642 P.2d 214 (noting that “[t]he paramount issue in an adoption proceeding ... is the welfare of the child”). Nevertheless, to comply with due process requirements, actions to terminate a parent's rights “must be conducted with scrupulous fairness.” State ex rel. Children, Youth & Families Dep't v. Lorena R. , 1999–NMCA–035, ¶ 19, 126 N.M. 670, 974 P.2d 164 (alteration, internal quotation marks, and citation omitted). The provisions of the Adoption Act governing proceedings for adoption of children and concurrent termination of parental rights, discussed below, reflect the constitutional dimension of the rights at stake.

{12} Mother makes several arguments on appeal. She contends that the district court disregarded due process and statutory requirements for proceedings to terminate parental rights, including by failing to inform her of her right to court-appointed counsel and requiring her to share the cost of the GAL. She argues that the district court abused its discretion by (1) admitting into evidence and relying on the GAL's investigatory report, which included portions of the CYFD file; (2) failing to exclude hearsay and double hearsay in the testimony of CYFD worker Kurt Smith; and (3) allowing Child's...