State ex rel. Children, Youth and Families Dept. v. David F., Sr.

• Decision Date: 06 December 1995
• Docket Number: No. 16080,16080
• Citation: 911 P.2d 235,1996 NMCA 18,121 N.M. 341
• Parties: State of New Mexico ex rel., Children, Youth and Families Department, In the Matter of Annette F., David F. Jr., Joan F., Jesse F., Joanne F., Laura Lee F., Billy Jack F., and Cheyenne F., Children, and concerning David F., Sr., and Sharon F., Respondents. STATE of New Mexico, ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. DAVID F. SR., and Sharon F., Respondents-Appellants.
• Court: Court of Appeals of New Mexico

Page 235

911 P.2d 235

121 N.M. 341

State of New Mexico ex rel., Children, Youth and Families Department, In the Matter of Annette F., David F. Jr., Joan F., Jesse F., Joanne F., Laura Lee F., Billy Jack F., and Cheyenne F., Children, and concerning David F., Sr., and Sharon F., Respondents STATE of New Mexico, ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. DAVID F. SR., and Sharon F., Respondents-Appellants.

No. 16080.

Court of Appeals of New Mexico.

Dec. 6, 1995.

Certiorari Denied Jan. 31, 1996.

[121 N.M. 343] Appeal from the Children's Court of Santa Fe County; Michael E. Vigil, District Judge.

Roy E. Stephenson, Children's Court Attorney, Children, Youth and Families Department, Santa Fe, for petitioner-appellee.

Tina S. Boradiansky, Santa Fe, for respondents-appellants.

OPINION

FLORES, Judge.

1. David F., Sr. (Father) and Sharon F. (Mother), Respondents-Appellants (referred to collectively as Parents), appeal from the district court's termination of their parental rights to four of their eight children under the Abuse and Neglect Act, NMSA 1978, §§ 32A-4-1 to -33 (Repl.Pamp.1995). We address the issues raised by Parents as follows: (1) whether the district court was required to conduct an evidentiary hearing concerning Parents' claim of ineffective assistance of counsel; (2) whether this Court must remand to the district court for an evidentiary hearing; (3) whether Parents were denied effective assistance of counsel; and (4) whether the district court erred in finding that the termination of Parents' parental rights was supported by clear and convincing evidence. Issues raised in the docketing statement but not briefed are deemed abandoned. State v. Fish, 102 N.M. 775, 777, 701 P.2d 374, 376 (Ct.App.), cert denied, 102 N.M. 734, 700 P.2d 197 (1985). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

2. The family first became known to the Children, Youth and Families Department, Petitioner-Appellee (CYFD), in October 1990 when it received a referral from the Social Services Department in New Bedford, Massachusetts alleging sexual abuse of Annette by Father. Although criminal charges for sexual assault and sexual exploitation were filed with the police department, the District Attorney's Office elected not to prosecute Father when the family left Massachusetts and moved to New Mexico. The six children were placed in CYFD legal and physical custody on October 10, 1990. The two youngest children had not yet been born. On October 12, 1990, CYFD filed a petition against Parents alleging sexual abuse, alcohol abuse, and physical neglect due to overcrowded, unsanitary, and inadequate living conditions. On March 15, 1991, the district court entered an order adjudicating the six children to be abused and neglected. Thereafter, the children were returned to Parents' physical custody. The case was ultimately dismissed and legal custody was returned to Parents on January 21, 1993. At this time, CYFD continued to provide services to the family on a voluntary basis.

3. The facts giving rise to the petition in this case arose on April 8, 1993, when CYFD received a referral stating that Mother had been raped and severely beaten by Father. According to Jennifer Wheeler, a social worker assigned to the case, Mother stated that Father had beaten her with a billy club, raped her with the same club, and kicked her at least thirty times. As a result of the beating, Mother was bruised over her entire body with the exception of the soles of her feet and had to undergo surgery to repair several tears in her vaginal wall. After Mother was released from the hospital, she stated that "it was a once in a lifetime thing," but later denied that Father was the perpetrator and claimed that it was some neighborhood women who beat her. Father admitted that he was told by hospital personnel that Mother was treated for bruises in her vagina and was aware that CYFD claimed that Mother was raped with a billy club, but stated that Mother denied being raped and claimed that she was kicked. Santa Fe police detectives who were called to the home found all of the children hiding in one room. The children stated that they heard the fight but stayed in the room because they were afraid. Annette told officers that she wanted to help her mother but was afraid that Father would beat her as well. Officers found the house to be "gross, disgusting, with an odor of fecal material." Dirty clothing and mattresses were on the floor.

4. Prior to this time, on August 5, 1992, CYFD received a referral concerning "sub-human conditions" at the home; on October 5, 1992 concerning abuse and neglect of the children; on December 11, 1992 concerning abuse of Joan by Parents; and on March 29, 1993 concerning the children's attendance in school and the fact that Father had threatened a neighbor by pointing a shotgun at him. Investigation of the first referral revealed that the house and yard were cluttered and dirty. The social worker observed beer bottles and cans, but was unable to determine to whom they belonged. Investigation of the second referral revealed that the house and yard were still cluttered and dirty. Several bags of beer cans were in the yard. There was very little food in the cupboards and a pellet gun and rifle were observed in the living room. Although it is unclear from the record whether the third referral was investigated, Wheeler reported that Joan ran away from home and did not want to return, so she was placed in foster care. During her foster placement, Joan manifested emotional problems and was admitted to a psychiatric treatment hospital. During the evaluation process, Joan expressed extreme anger toward her family, described a detailed plan to kill Father, and alleged that her brothers fondled her younger sisters and Mother. At that time, Joan stated that she never wanted to return home. It appears that the fourth referral was not investigated because CYFD was already involved with the family at that time and it was felt that an investigation would not have revealed any new information.

5. On April 15, 1993, CYFD received another referral stating that Father and his fifteen-year-old son, David Jr., came out of their house with baseball bats and attempted to hit a group of children who were outside playing ball. Both were reported to be drunk at the time. The source also reported that Parents and their older children, David Jr., Annette, Joan, and Jesse, frequently drank and used foul language. It was further reported that the children were not attending school and were dirty most of the time. Wheeler later reported that Annette and David Jr. had not attended school for over a year and that, as of April 1993, neither had started to work toward a GED. She further reported that Joan was not in school during the entire 1993 spring semester and attended approximately half of the 1992 fall semester. The elementary school that Jesse and Joanne were attending made several reports stating that they came to school three days a week at most, arriving at 9:30 a.m. and usually leaving by 12:00 p.m.

6. CYFD filed a petition alleging neglect or abuse or both against Appellants on April 22, 1993. Having determined that the children were in immediate danger from their surroundings and that their removal from the home was necessary to insure their safety and welfare, the children were again placed in the physical custody of CYFD on April 23, 1993, pursuant to an ex parte order. Five of the seven children were placed into CYFD custody, but the remaining two children were not placed in substitute care because it was felt that due to their ages, they were not in immediate danger.

7. On April 28, 1993, a custody hearing was conducted and the court ordered that the children remain in CYFD custody and adopted CYFD's interim assessment plan. Pursuant to a stipulated adjudication and dispositional judgment entered on July 29, 1993, the children were adjudicated to be neglected or abused or both. The court ordered that CYFD implement its submitted treatment plan dated July 7, 1993, and that Parents cooperate with and participate fully in the treatment plan. The treatment plan required Parents to participate in therapy for domestic violence; to abstain from alcohol and drug use and participate in random alcohol and drug testing; to engage in individual and family therapy; to seek employment or financial resources to provide for family needs; and to attend Alcoholics Anonymous (AA) meetings.

8. On October 15, 1993, CYFD moved the court for a periodic review of the July 1993 dispositional judgment. In November 1993, members of the New Mexico Citizen Review Board (the Board) met with Parents and three of the CYFD social workers assigned to Parents' case. At that time, CYFD had a return-home plan for the children which meant that CYFD was to make reasonable efforts toward unification of the family in a timely manner. The Board did not agree with CYFD's recommendation.

9. The periodic review was conducted on December 15, 1993. In its dispositional order, entered on February 10, 1994, the court adopted the judicial review report prepared by CYFD. That report stated that Parents continued to deny that abuse and neglect of their children had occurred, that Parents had minimally complied with treatment recommendations, and that CYFD was concerned with the overall lack of progress that the family had made after two years of intervention. Consequently, CYFD recommended to the court that the children remain in CYFD custody and that reunification be contingent upon Parents' progress and participation in the treatment plan. The court found that it was "in the best interests of the children that they remain in the legal and physical custody of [CYFD]" and implemented CYFD's proposed treatment plan, as amended.

10. At some point in late November or early December of 1993, CYFD made a decision to retreat from its original return-home plan...