State ex rel. Children, Youth & Families Dep't v. Maisie Y. (In re Jupiter C.)

• Decision Date: 03 March 2021
• Docket Number: No. A-1-CA-38719,A-1-CA-38719
• Parties: STATE of New Mexico EX REL. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. MAISIE Y., Respondent-Appellant, and Ruben C., Respondent, In the Matter of Jupiter C., Jovian C., Jayden C., and Jaizie C., Children.
• Court: Court of Appeals of New Mexico

489 P.3d 964

STATE of New Mexico EX REL. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee,

v.MAISIE Y., Respondent-Appellant,andRuben C., Respondent,

In the Matter of Jupiter C., Jovian C., Jayden C., and Jaizie C., Children.

No. A-1-CA-38719

Court of Appeals of New Mexico.

Filing Date: March 3, 2021

Children, Youth & Families Department, Rebecca J. Liggett, Chief Children's Court Attorney, Robert J. Retherford, Children's Court Attorney, Santa Fe, NM, for Appellee

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

ChavezLaw, LLC, Rosenda Maria Chavez, Sunland Park, NM, Guardian Ad Litem

MEDINA, Judge.

{1} Maisie Y. (Mother) appeals the termination of her parental rights to Jupiter C., Jovian C., Jayden C., and Jaizie C. (collectively, Children). Mother raises four arguments on appeal: (1) requiring Mother to proceed pro se during the first day of the termination of parental rights (TPR) trial violated her due process rights; (2) the district court applied the wrong standard of proof to its neglect determination during the TPR trial by taking judicial notice of Mother's prior adjudications; (3) insufficient evidence supports a showing of active efforts by the Children, Youth and Families Department (CYFD); and (4) the district court erred in finding that Mother's continued custody was likely to result in serious emotional or physical damage to Children based on testimony from an unqualified Indian Child Welfare Act of 1978 (the ICWA) expert. For the reasons that follow, we reverse and remand for a new trial.

BACKGROUND

{2} On September 12, 2017, CYFD filed an abuse and neglect petition alleging that Jupiter C., age seven, Jovian C., age five years and four months, and Jayden C., age two years and eleven months, were abused or neglected by Mother. After an initial adjudicatory hearing held in November 2017, the district court found, in relevant part, that the ICWA applied to the proceedings. On December 4, 2017, the district court accepted Mother's plea of no contest to the allegations in the petition and entered an adjudicatory judgment finding Children neglected as defined in NMSA 1978, Section 32A-4-2(G)(2) (2017, amended 2018). At the time of her plea, Mother was represented by court-appointed counsel. In a dispositional order, the district court adopted CYFD's treatment plan.

{3} On January 17, 2018, CYFD filed an abuse and neglect petition alleging Mother neglected Jaizie C., age two months and twenty-four days. On March 5, 2018, CYFD included a second allegation of neglect in an amended petition. An adjudicatory hearing commenced on March 12, 2018, and was continued to April 23, 2018. Court-appointed counsel represented Mother during both hearings. At the continued hearing Mother did not contest the allegations of abuse or neglect. After the hearing the district court issued an adjudicatory judgment and found, in relevant part, that the ICWA applied to Jaizie C. The district court also found that CYFD proved by clear and convincing evidence that Jaizie C. was neglected, as defined in Section 32A-4-2(G)(2). In a dispositional order, the district court adopted CYFD's treatment plan.

{4} On November 29, 2018, Mother's court-appointed counsel filed motions to withdraw from representation in both cases, citing a breakdown of the attorney-client relationship.

The district court granted the motions on December 4, 2018, and appointed new counsel.

{5} In February 2019, the district court consolidated the two cases, and CYFD moved to terminate Mother's parental rights to all four Children. As grounds therefore, CYFD alleged that the causes and conditions that brought Children into CYFD's custody are unlikely to change in the foreseeable future despite CYFD's reasonable efforts to assist Mother in adjusting the conditions that rendered her unable to properly care for Children. Specifically, CYFD alleged Mother was unable or unwilling to utilize its services. The district court held a TPR trial over the course of two days.

{6} On the first day of the TPR trial, Mother's court-appointed counsel, Julie Kester, asked to withdraw, asserting, "[Mother] does not want me to represent her." The district court asked counsel whether Mother wanted to proceed without representation to which counsel responded, "I believe you could ask her.... She was just very clear that she does not want me to represent her." The district court did not ask Mother if she wished to waive her right to counsel and proceed pro se and instead stated:

Alright, here is what I think we should do. I would still like for Ms. Kester to remain in the courtroom and I would like to have you advise [Mother] in the event that she has any questions about the procedure. But we are going to go forward. I don't want this process to be compromised simply because someone comes in and says that they are unhappy.

{7} Five witnesses including Mother testified during the first day of the TPR trial. Our review of the trial reveals that Mother struggled to question witnesses and to respond to objections. For example, when it came time to cross-examine Children's father (Father), whose parental rights were also the subject of the TPR trial, the following colloquy occurred:

Court: [Mother], you can ask questions of [Father] and if you would like you can confer with Ms. Kester.

Mother: Obviously a big issue here is my mental health, if that is a huge concern then how can I possibly represent myself, like, competently when I am thought otherwise.

Court: Well that is why you did have [counsel] and you still have her to help you, to assist you.

Mother: She has not helped me.

Court: Well but you know she is there to help you. And so ... you have the right to ask questions of [Father] regarding his testimony.

Shortly thereafter, Father's counsel objected to Mother's attempted cross-examination on grounds that she was testifying. The district court responded, "Can you just ask a question [and] not testify?" Mother responded, "Am I going to ask questions to everybody?" The court advised that she would, and Mother asked only a few more questions before receiving another objection on the grounds that she was testifying. Mother responded, "No, I was—it wasn't testimony, and I am trying to think of questions because I was not prepared to do this today, but I want to speak for myself as much as I can. That's all." Mother then concluded her cross-examination of Father.

{8} Later, during her cross-examination of the drug court program manager, Mother vociferously disagreed with testimony regarding the number of opportunities she had to sign up for and participate in drug court. The district court warned Mother not to argue with the witness. Thereafter Mother did not ask any questions but instead stated that her medical records would show she had a broken foot

and explained why she believed she was only given one opportunity to participate in drug court. Mother's statement drew another objection on grounds that she was testifying, and the district court informed Mother that she would have an opportunity to present her own side. Mother expressed her frustration stating, "Well see if I had a competent attorney, I wouldn't have to be doing this myself." Mother also wept while attempting to cross-examine the last witness of the day. At the end of the day, the district court cautioned Mother that she came very close to stating that she was ready to relinquish her parental rights and did not want her to say anything and continued the TPR trial to June 2019.

{9} In May 2019, and before continuing the TPR trial, the district court appointed counsel to represent Mother. Counsel represented Mother throughout the remainder of the termination proceedings during which six additional witnesses testified. The district court later entered a judgment terminating Mother's parental rights to Children. The district court concluded that Mother was unlikely to change the causes and conditions of her neglect of Children in the foreseeable future despite CYFD's active efforts to assist her and found the following:

[1.] [Mother] didn't engage in several parts of her case plan ... even though she knew that her participation was required to regain custody of [C]hildren.

[2.] [Mother] did not fully engage and/or complete treatment services to remedy the causes and conditions that brought [C]hildren into CYFD custody despite ongoing efforts by CYFD and numerous referrals for services.

[3.] [Mother] admitted to being bi-polar and suffering from hallucinations and needing help with medical management ... [and] testified that other health conditions that she has such as lupus

and fibromyalgia make it difficult for her to ... provide adequate care for ... [C]hildren.

[4.] ... [I]t is unlikely that even with additional time she will be able to complete the requirements of her case plan [and] ... acknowledged that [C]hildren deserve a safe and stable home which she is unable to provide for them.

{10} This appeal followed.

DISCUSSION

{11} Although we reverse the termination of Mother's parental rights and remand for a new trial based on the denial of Mother's statutory right to counsel, in the interest of judicial economy, we address certain legal errors that are likely to repeat themselves on remand. In particular, we address Mother's claim that the district court applied the wrong standard of proof to its neglect determination during the TPR trial when it took judicial notice of Mother's previous adjudications. We also address Mother's active efforts, arguments only, to the extent that they require clarification of law for the purposes of remand. We do not reach Mother's arguments relating to the sufficiency of the evidence or those regarding the purported unqualified ICWA expert.

Mother's Statutory Right to Counsel at the TPR Trial

{12} Mother argues that her due process rights were violated when the district court required her to proceed pro se during the first day of the TPR trial. Mother...