State ex rel. Children, Youth & Families Dep't v. Maurice H. (In re Grace H.)
| Decision Date | 18 September 2014 |
| Docket Number | 34,126. |
| Citation | 2014 NMSC 034,335 P.3d 746 |
| Parties | In the Matter of GRACE H., a child. State of New Mexico, ex. rel., Children, Youth and Families Department, Petitioner–Respondent, v. Maurice H., Respondent–Petitioner. |
| Court | New Mexico Supreme Court |
Law Offices of Jane B. Yohalem, Jane B. Yohalem, Santa Fe, NM, for Petitioner.
New Mexico Children, Youth & Families Department, Rebecca J. Liggett, Santa Fe, NM, for Respondent.
{1} The opinion filed on June 12, 2014, is withdrawn, and the following opinion is substituted in its place.
{2} This case concerns a father whose parental rights were terminated pursuant to NMSA 1978, Section 32A–4–28 (2005), which provides the mechanism for terminating parental rights under the Abuse and Neglect Act, NMSA 1978, Sections 32A–4–1 to –34 (1993, as amended through 2009). In the proceedings below, the district court concluded that his parental rights should be terminated pursuant to a finding of abandonment under Section 32A–4–28(B)(1), without establishing that the conditions of neglect, by abandonment, could not be cured, as required by Section 32A–4–28(B)(2). The father appeals that ruling, asserting that an ambiguity in Section 32A–4–28 led to an incorrect ruling. He avers that the Children Youth and Families Department (the Department) used its unfettered discretion to pursue a theory of abandonment under Section 32A–4–28(B)(1) without establishing that it made reasonable efforts to cure the causes of neglect, as required by Section 32A–4–28(B)(2).
{3} While we do not necessarily agree with the father's framing of the issue on appeal, we do agree that Section 32A–4–28 is ambiguous with respect to when abandonment may be used as a basis for termination of parental rights. We also agree that this ambiguity led to the improper termination of his parental rights in this case. For the reasons that follow, we reverse the district court's ruling.
{4} Grace H. (Child) was born on September 25, 2006, to Tessa P. (Mother) and Anthony Maurice H. (Father), as a result of an extramarital affair. Father was married and had other children with his wife, while Mother was unmarried and had one other child, Brother. Some time after Child was conceived in Albuquerque, New Mexico, Father moved his family to Texas and Mother followed. Once Child was born, Father saw Child a few times a week for the first three months of her life. In January 2007, Mother left Texas with Child and moved to her parents' home in Albuquerque. After their departure, Father made some efforts to stay in contact with Mother and Child through phone calls and emails, but he did not visit Child. These communications took place throughout 2007, and Father only communicated once with Mother in 2008. Thereafter, Father was not in contact with Mother or Child from 2008 to February 2011.
{5} In June 2008, Mother moved into her boyfriend's house in Albuquerque. In December 2008, the Department took Child and Brother into custody because the Department received a referral concerning physical abuse of Child and Brother. The children were temporarily placed with their maternal grandmother in Albuquerque, but she was unsure of maintaining the voluntary placement for financial reasons.
{6} The Department began searching for Father in 2009, but it used an incorrect name and failed to locate him. Father returned to Albuquerque in September 2009. By that time, the Department failed to notify Father that termination of his parental rights was in process. In April 2010, Father heard from a friend that Child and Brother were in the Department's custody. Father promptly contacted the Department and identified himself as Child's father. Father made an appointment to meet with the Department a few days later, on April 19, 2010. Father brought his wife and children to the meeting; a department official described the children as well dressed and well behaved. Father told the Department he had tried to find and contact Mother and Child, but was unsuccessful. Father told the Department that he wanted custody of Child and asked for visits with her in the meantime. Father admitted that he had not filed the paperwork seeking custody of the Child or paid child support.
{7} The next day, a department supervisor told Father over the phone that the Department did not plan to reunite him with Child or allow visitation and planned to go forward with adoption and the termination of his parental rights. The department supervisor advised Father to apply to the court for appointment of counsel, which Father did. Following Father's meeting, the Department held an internal meeting to discuss the situation. The Department acknowledged that it could have chosen to evaluate Father further and consider him as a placement option, but instead chose to just move forward with the termination hearing. The Department indicated that it was late in the case and the Child needed permanency.
{8} The following is an outline and analysis of the procedural history that ultimately resulted in the termination of Father's rights. It illustrates just how the ambiguity in Section 32A–4–28 came to be exposed in this case. Further, it informs our ultimate holding that Father's rights were improperly terminated by a finding of abandonment under Section 32A–4–28(B)(1).
{9} The first phase of an abuse and neglect proceeding involves a determination of the basis for the removal of the child from the parents' custody and an adjudication of abuse or neglect. See §§ 32A–4–14 to –20. Upon the adjudication of abuse or neglect, the district court orders the family to undergo assessments in order to develop a treatment plan to address the causes and conditions that led to the child's removal from the home. Section 32A–4–21.
{10} In these beginning phases, Father was never given notice of the proceedings, as required by Section 32A–4–18(B), so he did not appear at the initial hearings. The Department did not locate Father to notify him that the Department had taken custody of Child. The Department had mistakenly identified Father as Maurice H., but his name is actually Anthony Maurice H. This misidentification likely led to the Department's failure to effectuate service upon Father. With the exception of the Department's failure to serve Father by searching for him under his proper name, there do not appear to be any unusual circumstances surrounding the initial custody, adjudication, and assessment phase.
{11} The second phase is treatment. Once assessments are completed and recommendations are made for treatment, the Department presents the family treatment plan to the district court, which the district court considers and, if appropriate, adopts. See § 32A–4–21(B)(10). The family treatment plan is adopted at the dispositional hearing, which takes place thirty days after the adjudication of abuse and neglect. See § 32A–4–22(A). The treatment plan identifies the required counseling, drug testing, and supervised visitation arrangements that the parents must complete in order to address the causes and conditions which led to removal of the child from the home. The Department is ordered to assist the parents in following through with treatment. Section 32A–4–22(C). During the treatment phase, the Department monitors the parents' progress in treatment and reports to the district court at review hearings.
{12} On May 27, 2009, the district court adopted a family treatment plan for Father. The treatment plan required Father to complete a psychosocial assessment, a substance abuse assessment, sign releases of information, provide names of relatives to the Department, follow all recommendations, and take a paternity test. The family treatment plan had an estimated completion date of August 1, 2009, which was subsequently extended to November 1, 2009, and then to May 1, 2010.
{13} The third phase is permanency, which begins within six months of the initial judicial review of the child's dispositional order adopting the family treatment plan, or within twelve months of a child entering foster care, whichever occurs first.See § 32A–4–25.1(A). Section 32A–4–25.1(B) provides:
{14} The permanency phase is a critical point in the case because the district court must decide whether the permanent placement of the child must be changed from reunification to adoption. See § 32A–4–25. 1(B). This determination depends upon the parents' progress in treatment. The district court considers whether the parents have made sufficient progress in eliminating the causes and conditions which led to the removal of the child from their care.
{15} In this case, the district court maintained Father's treatment plan and did not relieve the Department from further efforts to assist Father with treatment. The initial permanency hearing took place in this case on November 17, 2009. The order from that hearing was not entered until March 5, 2010. At the first permanency hearing, the Department requested to change its plan in order...
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