IN RE STATE EX REL. CYFD

• Decision Date: 01 August 2001
• Docket Number: No. 20,721.,20,721.
• Citation: 2001 NMCA 71,130 N.M. 781,32 P.3d 790
• Parties: STATE of New Mexico ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, In the Matter of Melissa G. and Katie B., Children, and Concerning Michelle B., Mauro G., and Mario R., Respondents-Appellants.
• Court: Court of Appeals of New Mexico

32 P.3d 790

130 N.M. 781

2001 NMCA 71

STATE of New Mexico ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee,

In the Matter of Melissa G. and Katie B., Children,

and Concerning Michelle B., Mauro G., and Mario R., Respondents-Appellants.

No. 20,721.

Court of Appeals of New Mexico.

August 1, 2001.

Angela L. Adams, Chief Children's Court Attorney, Daniel J. Pearlman, Children's Court Attorney, Santa Fe, NM, for Appellee.

Judy A. Pittman, Sanders, Bruin, Coll & Worley, P.A., Roswell, NM, Guardian Ad Litem.

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

Nancy L. Simmons, The Law Offices of Nancy L. Simmons, P.C., Albuquerque, NM, for Appellant Mauro G.

Richard L. Kraft, Kraft & Stone, LLP, Roswell, NM, for Appellant Mario R.

OPINION

ARMIJO, Judge.

The opinion filed on May 22, 2001 is withdrawn and the following substituted therefor.

{1} This case tests the reasonableness of a parent's conduct when confronted with the reality of a child's abuse perpetrated by a third party. Michelle B. is the parent of two daughters fathered by different men: Melissa, age three, whose father is Mauro G., and Katie, age six, whose father is Mario R. In this consolidated appeal, Michelle (Mother) appeals the adjudication of her three-year-old child, Melissa, as neglected, and also appeals the district court's judgment changing custody of Melissa's sister, Katie, from Mother to Katie's father, Mario. Mother raises three issues on appeal: (1) the court's finding that Mother neglected Melissa is not supported by clear and convincing evidence; (2) there is insufficient evidence of a change of circumstances to support the court changing custody of Melissa's sister, Katie, from Mother to Katie's father, Mario; and (3) the court erred in failing to implement safeguards, pursuant to the dispositional provisions of the Children's Code, designed to protect Melissa from further sexual abuse by her father. We reverse the district court adjudication of neglect. We reverse and remand the matters relating to Katie's change of custody. We determine that Mother lacks standing to challenge the district court's failure to comply with certain mandatory provisions of the Children's Code, as those provisions relate to Mauro.

FACTUAL BACKGROUND

{2} The issues relating to the neglect adjudication concern Melissa and her biological father, Mauro. The issue relating to Katie's change of custody concerns Katie and her biological father, Mario.

{3} At all relevant times, Melissa was three years old. She has been diagnosed as having a severe expressive language problem and is developmentally delayed. She is a "special needs" child.

{4} Shortly after Melissa's arrival at school on February 18, 1999, she was brought to Valerie Sharp, her pre-school teacher, by the school's speech therapist who had been working with her. Melissa lifted her shirt, revealing bruising across her ribs and stomach. Without prompting, the child stated: "Daddy did it." A further examination of the child by the school nurse revealed bruising in and about the child's chest, legs, and thighs. The bruising in the area of the ribs included what appeared to be a well-defined impression of three fingers. The child was subsequently examined by Phyllis Tulk, a certified family nurse practitioner, who diagnosed her as having been the victim of a sexual assault. The medical examination revealed severe bruising in the child's vaginal and rectal areas, a V-shaped laceration near the vagina, and rectal tearing. These injuries were caused, in the opinion of the nurse, by penetration, or attempted penetration, by a male. Ms. Tulk described Melissa's demeanor during the examination as quite unusual; that is, she described Melissa as remaining silent and willingly submitting to the examination without protest. In the opinion of the nurse, most young children who undergo this type of examination resist or protest in some manner. In addition to the examination, she collected bodily secretions for testing as to the presence of sperm and venereal diseases. These cultures were lost and the results were never obtained by Children, Youth and Families Department (CYFD) or police authorities. In the opinion of Ms.Tulk, the injuries were inflicted no more than seventy-two hours prior to her examination.

{5} At all relevant times, Melissa resided with Mother and her older sister, Katie. Melissa's father, Mauro, was the suspected perpetrator. Although he and Mother were divorced at the time of the assault, he sometimes occupied the home and exercised visitation rights with the child. His visitation with Melissa also included visits with Katie. Because of her language problems, the psychologist who examined Melissa testified that he was unable to understand much of what she said to him during his examination and he further reported that she has difficulty communicating her thoughts and ideas to others.

{6} As noted above, medical personnel determined that the assault occurred within seventy-two hours of her examination. The record discloses the following with respect to the child's activities during that time. On February 16, 1999, Melissa attended school, as did Katie. After school, Mother and the children visited a park where the children played. They remained together for the rest of the day. Mother bathed both children that evening. No injuries were observed by Mother. On the following day, February 17, the children attended school, after which time, Mauro took the children out for approximately four hours during the afternoon and early evening. Mauro returned the children home at approximately 8:00 p.m. Upon their arrival, Mother was in bed, experiencing what she described as severe back pain. She admitted having taken prescribed pain medication that evening. Prior to the discovery of the injuries by school personnel the following morning, Mother claimed to have had no knowledge of the assault or injuries.

{7} Upon being advised of Melissa's condition by school personnel, CYFD intervened and both Melissa and her sister, Katie, were temporarily placed in foster care. A petition was filed in children's court alleging that Mauro and Mother had abused and/or neglected Melissa. During the pendency of this proceeding, Katie's father, Mario, who resided in California, filed a motion in domestic relations court seeking a change of custody based upon changed circumstances. Without objection from any party, Judge Alvin Jones consolidated Katie's custody case with the abuse/neglect case involving Melissa.

{8} On July 21, 1999, the district court entered a judgment, determining that Mother neglected Melissa and further determining that a change of circumstances existed sufficient to warrant a change in Katie's custody from Mother to her father, Mario. The judgment also determined that:

Respondent Mauro G. has entered a plea of no contest with respect to the allegations of the petition insofar as the child, Melissa G., is a neglected child as defined in the Children's Code insofar as the child has been sexually abused, when the child's parent, Mauro G., knew or should have known of the abuse and failed to take reasonable steps to protect the child from further harm, pursuant to [S]ection 32A-4-2(C)(3).

This appeal followed.

DISCUSSION

{9} With respect to the allegations pertaining to Mauro, the alleged perpetrator of sexual abuse upon Melissa, the court permitted him to enter a plea of no-contest. Mother's objections to that plea are addressed separately below.

I. Neglect proceedings related to Mother

{10} The matter proceeded to trial as to the allegations that Mother neglected or abused Melissa. At the close of evidence, she was found to have neglected Melissa essentially because she did not discover the injuries due to her dependency on prescribed medication and its effects upon her own well-being. In addition, Judge Jones, sitting as the domestic relations court, awarded custody of Katie to her natural father, Mario, on the basis of changed circumstances. The change in Katie's custody is addressed separately below.

{11} We apply the clear and convincing evidence standard of review in addressing Mother's claim that the finding of neglect is unsupported in the record. As this Court noted in In re Candice Y., the judgment will be upheld "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." In re Candice Y., 2000-NMCA-035, ¶ 10, 128 N.M. 813, 999 P.2d 1045 (citation omitted).

The clear and convincing evidence standard requires proof stronger than a mere "preponderance" and yet something less than "beyond a reasonable doubt."

For evidence to be clear and convincing, it 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.

The function of the appellate court is to view the evidence in the light most favorable to the prevailing party, and to determine therefrom if the mind of the factfinder could properly have reached an abiding conviction as to the truth of the fact or facts found.

In re Adoption of Doe, 100 N.M. 764, 767, 676 P.2d 1329, 1332 (1984) (citation omitted). In conducting our review, we indulge all reasonable inferences in support of the verdict and disregard all inferences or evidence to the contrary. See In re R.W., 108 N.M. 332, 335, 772 P.2d 366, 369 (Ct.App.1989)

. It is for the finder of fact and not for the reviewing courts to weigh conflicting evidence and decide where the truth lies. See id. Questions of law are reviewed de novo. See Martinez v. Martinez, 93 N.M. 673, 676, 604 P.2d 366, 369 (1979). Within this framework, we consider and ultimately conclude as a matter of law that the evidence in this record was insufficient to sustain a finding of statutory neglect as to Mother.

II. The finding of neglect as to Mot...