State ex rel. Children, Youth & Families Dep't v. Alfonso M.-E. (In re Uriah F.-M.)

• Citation: 366 P.3d 282
• Decision Date: 14 December 2015
• Docket Number: No. 33,896.,33,896.
• Parties: STATE of New Mexico ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner–Appellee, v. ALFONSO M.-E., Respondent–Appellant, and In the Matter of Uriah F.-M., Child.
• Court: Court of Appeals of New Mexico

366 P.3d 282

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

v. ALFONSO M.-E., Respondent–Appellant,andIn the Matter of Uriah F.-M., Child.

No. 33,896.

Court of Appeals of New Mexico.

Dec. 14, 2015.

Children, Youth & Families Department, Charles E. Neelley, Chief Children's Court Attorney, Kelly P. O'Neill, Children's Court Attorney, Albuquerque, NM, for Appellee.

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

Peter G. Tasso Law Firm, P.C., Peter G. Tasso, Albuquerque, NM, Guardian Ad Litem.

OPINION

WECHSLER, Judge.

{1} Father, Alfonso M.-E., appeals from the district court's judgment terminating his parental rights to Child, Uriah F.-M., under two statutory provisions of the Abuse and Neglect Act (ANA), NMSA 1978, §§ 32A–4–1 to–34 (1993, as amended through 2015). The court also terminated the rights of Child's mother, Brandi S. (Mother), but she has not appealed. Father challenges the district court's termination pursuant to Section 32A–4–28(B)(1) and argues that clear and convincing evidence did not support the district court's finding that he abandoned Child. Father also raises sufficiency of evidence claims in appealing the district court's termination on the basis of Section 32A–4–28(B)(2). In this regard, Father contends that the district court erred in finding that (1) he neglected Child; (2) the causes and conditions of neglect were unlikely to change in the foreseeable future; and (3) the Children, Youth and Families Department (CYFD) made reasonable efforts to assist Father in adjusting the conditions that rendered him unable to properly care for Child. Father also contends that CYFD violated his due process rights by failing to provide him adequate translation services and, finally, argues that he was denied effective assistance of counsel.

{2} We hold that our Supreme Court's opinion in In re Grace H., 2014–NMSC–034, 335 P.3d 746 renders the district court's termination of Father's parental rights for abandonment under Section 32A–4–28(B)(1) improper. We also hold that the record is not sufficient to support, by clear and convincing evidence, that the causes and conditions of neglect were unlikely to change in the foreseeable future or that CYFD made reasonable efforts to assist Father in adjusting the conditions that rendered him unable to properly care for Child under Section 32A–4–28(B)(2). Because we reverse the district court's termination of Father's parental rights on these grounds, we do not reach Father's due process and ineffective assistance of counsel arguments.

BACKGROUND

{3} Child was born on August 20, 2012 to Father and Mother. On January 24, 2013, CYFD took Child into custody after receiving an emergency referral alleging physical neglect and a lack of adequate supervision of Child by Mother, who reportedly had been arrested on outstanding warrants. CYFD also took Child's half-brother, Isaac K., born April 11, 2005, into custody and placed the two with the same foster family. Father is not the biological father of Child's half-brother.

{4} On January 28, 2013, CYFD filed a neglect and abuse petition against Father and Mother, alleging that Child was without proper parenting or parental supervision due to Mother's substance abuse issues, her inability to provide safe and stable housing, and her criminal lifestyle. As to Father, the petition alleged that he abandoned Child and had "failed to protect [Child] from [M]other's drug abuse, homelessness, criminal conduct and neglect." The petition further alleged that Father's location was unknown. It was determined at the initial custody hearing on February 6, 2013 that Father was incarcerated and was subject to an immigration hold. Father had been incarcerated since December 2012 due to his arrest for driving while under the influence of intoxicating liquor or drugs.

{5} At the adjudicatory and dispositional hearing held on March 8, 2013, Father appeared with the aid of an interpreter and entered a plea of no contest to the allegations in CYFD's petition, acknowledging that Child was a "neglected" child pursuant to Section 32A–4–2(E)(2), and that Father had "failed to provide for [Child's] basic necessities." The district court entered a stipulated judgment and disposition against Father on March 28, 2013. The treatment plan developed by CYFD for Father and adopted by the court indicated that Father had "expressed a strong desire to maintain his bond with [Child]." The plan specified that Father was required to complete substance abuse, mental health, psychosocial, and domestic violence assessments and follow all recommendations made by those assessments. The plan also mandated that Father "will provide random [urinalyses] as determined by [CYFD]." Further, the treatment plan included the requirements that Father maintain weekly contact with CYFD, obtain safe and stable housing, create a financial plan to ensure Child's basic needs are met, engage in parenting education, participate in family time at CYFD's discretion, and provide letters, photos, and other memorabilia for Child' life book. For CYFD's part, the treatment plan required CYFD to "make appropriate recommendations[,] ... make referrals [,] and monitor [Father's] progress."

{6} Father spoke through an interpreter at the initial judicial review hearing on May 17, 2013 to inform the court that he was currently incarcerated and serving his sentence for his DWI conviction and that he might face immigration detention and deportation to Mexico following completion of his sentence. CYFD's judicial review report, which the court adopted by reference, indicated that Father had "done as much as possible considering his current incarceration and [immigration] hold" but that Father was "also waiting to be deported, and may not be able to be a consistent caretaker for [Child]." The report also noted that Father had "engaged in [an addiction treatment program], but hasn't been able to do any further substance abuse programs due to his current incarceration and [immigration] hold." The report additionally stated that Father "has written letters to [his permanency planning worker (PPW) ] regarding [Child] and his [incarceration] status" and provided CYFD the names of Father's relatives for Child's possible placement. The court ordered CYFD to implement its permanency plan of reunification.

{7} In August 2013, Father was transferred from New Mexico to a federal holding facility in El Paso, Texas for immigration processing. He was subsequently deported to Mexico in September 2013. Father called his PPW, Frances Steckbauer, and left her a voicemail after he arrived in Mexico. During this time, CYFD requested the Mexican Consulate's assistance in conducting a psychological evaluation of Father and a study of Father's sister's home in Mexico where Father was living. Additionally, with the help of the Consulate, Steckbauer coordinated a telephone call with Father in October 2013 and told Father to maintain monthly communication with CYFD.

{8} Shortly thereafter, on October 28, 2013, CYFD moved to terminate Father's parental rights to Child. CYFD asserted that Father, "[w]ithout justifiable cause, ... ha[d] not communicated with or provided support for [Child] in over 3 months" and "ha[d] abandoned [Child]." Moreover, CYFD argued, Father was "in substantial non-compliance with his treatment plan [.]" Among Father's failures, CYFD stated that Father had not completed the required assessments, provided proof to CYFD that he had obtained safe and stable housing, provided random urinalyses, maintained weekly contact with CYFD, or discussed his history with CYFD. CYFD also asserted that Father had not provided it with names of relatives for possible placement with Child, participated in family time with Child, provided Child with memorabilia for his life book, or created a financial plan to ensure Child's needs would be met.

{9} The following week, on November 4, 2013, the court held the initial permanency planning hearing. Father was not present at the hearing but was represented by his attorney who notified the court that Father had been deported. CYFD informed the court that CYFD had stayed in contact with the Consulate, which provided CYFD an address and the phone number for Father in Mexico as well as the names of some of Father's relatives living in Mexico. However, CYFD further represented that Father had made no attempts "to contact [CYFD] at all [after his deportation], even though Ms. Steckbauer made sure [Father] had all of [CYFD's] contact information." Although the court approved changing CYFD's plan from reunification to adoption, the court explicitly asked CYFD to "continue trying to open a line of communication with [Father] to determine what, if anything, he wants to do to work his plan."

{10} In accordance with CYFD's request through the Consulate, Mexican officials conducted a study of Father's sister's home on November 5, 2013. Father, who was employed as a day laborer, provided his financial information as part of the study. A November 6, 2013 urinalysis administered in Mexico indicated that Father tested negative for amphetamines, cocaine, and marijuana. By December 2013, Father had also completed a psychological evaluation that recommended he engage in therapy sessions. In a letter to the Mexican Consulate dated December 16, 2013, a government official from Mexico's social service agency in Father's municipality explained that Father would be offered six sessions of therapy in accordance with the psychological evaluation recommendation and that the first session was scheduled for December 18, 2013. The official additionally referenced the Consulate's request for Father to attend parenting classes but indicated that Father's municipality did "not have an institution capable of offering them," and therefore proposed that "[parenting] classes be substituted by psychological therapy where facts based on paternity...