STATE EX REL. CHILDREN, YOUTH & FAMILIES

Decision Date23 February 2000
Docket NumberNo. 19,718.,19,718.
PartiesSTATE of New Mexico ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, In the Matter of: Candice Y., a child, And Concerning: Patricia N. and Nolando N.
CourtCourt of Appeals of New Mexico

Angela L. Adams, Chief Children's Court Attorney, Roy E. Stephenson, Children's Court Attorney, Children, Youth & Families Dep't, Santa Fe, for Appellee.

William G. Stripp, Gallup, for Appellants.

Mary Helen Baber, Gallup, Guardian Ad Litem.

Certiorari Denied, No. 26,247, April 12, 2000.

OPINION

SUTIN, Judge.

{1} This appeal from an adjudicatory judgment under the Abuse and Neglect Act (the Act) presents a constitutional attack against a provision of the Act, requires us to consider the applicability of the Act to stepparents, and tests certain evidentiary privileges.

{2} The Children, Youth and Families Department of the State of New Mexico (CYFD) filed a Neglect Abuse Petition under the Act to protect Candice from abuse by her stepfather, Nolando, and from neglect by her mother, Patricia. The proceeding culminated in a determination of "neglect or abuse" within the meaning of the Act, placement of Candice in the legal custody of CYFD, and the adoption of a treatment plan. Patricia and Nolando (together, Appellants) appeal, contending (1) the evidence was insufficient to support the judgment, (2) the Act is unconstitutionally vague and overbroad, (3) the court erred in not allowing witnesses to testify, (4) the judge should have recused himself, (5) the court lacked subject matter jurisdiction over Nolando, (6) the court erred in not removing the guardian ad litem, (7) the court erroneously admitted into evidence an inaudible tape, (8) the court erred by admitting privileged counseling session records relating to Patricia, (9) the court erred by admitting a privileged treatment plan, and (10) the court failed to exclude the district attorney from hearings. We affirm.

FACTS

{3} Nolando had been living with Patricia and Candice for several years when Candice was admitted to the hospital for attempted suicide at the age of twelve. Candice disclosed that Nolando had touched her breasts and vaginal area on several occasions. Nolando admitted to inappropriately touching Candice. Candice had previously told Patricia of the touching. After Candice's first disclosure to Patricia, Patricia confronted Nolando, who agreed to stop the touching. However, Nolando continued to engage in sexual touching.

{4} Later, the family changed its story. Patricia denied that she knew that the abuse was still going on. The child recanted and stated that her suicide attempt was related to other causes. Nolando denied that there was anything sexual about the touching. Because the parents were no longer acknowledging the risk to the child and CYFD's work with the family was not successful, CYFD filed the Neglect Abuse Petition. Criminal charges were pending against Nolando.

{5} The children's court appointed counsel to represent Nolando and Patricia. The court also appointed a guardian ad litem to represent the interests of Candice. Following an adjudicatory hearing that stretched on and off over six days, the children's court found that Nolando had touched the child's breasts and vagina and that Patricia knew of the touching but was unable to adequately protect the child. Accordingly, the children's court concluded that the child was neglected or abused, as defined in the Act. Additional pertinent facts are set out in our discussion of the issues.

DISCUSSION
I. Sufficient Evidence Exists to Support Abuse and Neglect

{6} Appellants contend that the children's court should have granted a directed verdict because Candice testified that she made up the allegations of sexual abuse and Nolando testified that the touching was not sexual in nature. We consider these arguments to be an attack on the sufficiency of the evidence of abuse and neglect to support the judgment. Further, Appellants also contend that CYFD did not prove by clear and convincing evidence that Nolando abused and Patricia neglected Candice.

{7} In our view, the evidence solidly supports the court's determinations. Candice attempted suicide. She told the doctor that she did not feel safe at home. She told Patricia that Nolando had touched her in a sexual manner. She told an investigator her attempted suicide was because Nolando was molesting her. She made specific references to him rubbing her breasts and vagina. A videotape of the child's initial statements concerning sexual abuse was admitted into evidence without objection. The tape contains repeated statements by Candice of Nolando's touching her breasts and vaginal area when Candice was in bed. These touchings occurred sometimes when Nolando's purported purpose was to get Candice up and out of bed in the morning, and sometimes at night either when Candice was asleep (she would be awakened by the touching) or while Candice pretended to be asleep (she was afraid to go to sleep for fear that she would be molested during sleep).

{8} Further, Nolando admitted to the investigator for the District Attorney that he had touched the child's breasts and vaginal area under her clothing. Patricia told the investigator and a CYFD social worker that she had been told by Candice about the touching, had tried to stop it, and that it recurred. Both Nolando and Patricia made essentially the same admissions to the social worker.

{9} At trial, Candice testified that she could not remember what she said to the doctor. She expressed her distress at what was happening to her family since her suicide attempt and stated that she made up the touchings so that her stepfather would get marriage counseling. Candice later provided another explanation for her attempted suicide, stating that she had attempted suicide as part of her experimentation with drugs. Candice's pretrial statements and trial testimony conflict. But Appellants' initial statements corroborate Candice's earlier statements of sexual abuse and parental neglect. {10} Appellants nevertheless focus on Candice's testimony that she made up the allegations of sexual abuse, Nolando's testimony that the touching was not sexual in nature and that he received no sexual gratification from the touching, and Patricia's testimony that once she was informed of the alleged wrongful touching she tried to witness such touching and never saw it occur. Appellants contend that Patricia did all she was required to do under the Act. Appellants argue that under these circumstances the children's court erred in determining that sexual abuse and neglect occurred. We are unpersuaded. When we review a substantial evidence claim, "[t]he question is not whether substantial evidence would have supported an opposite result; it is whether [the] evidence supports the result reached." Hernandez v. Mead Foods, Inc., 104 N.M. 67, 71, 716 P.2d 645, 649 (Ct.App.1986). "This Court will uphold the termination 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." State ex rel. Children, Youth & Families Dep't v. Tammy S., 1999-NMCA-009, ¶ 13, 126 N.M. 664, 974 P.2d 158. From the evidence in this case, the children's court could reasonably determine that sexual abuse and neglect occurred despite Candice's recantation and Nolando's later attempt to deny sexual motive. The evidence of abuse and neglect is ample to support the court's findings under the clear and convincing standard of proof.

{11} Appellants criticize the children's court for not ordering a predisposition report under NMSA 1978, § 32A-4-21 (1997) to obtain certain information regarding the child. Appellants argue that the court did not order the predisposition study because it had "made up its mind" without considering the required factors of the child's educational background, cultural background, and wishes. With no indication that this issue was preserved below, with no record showing whether a disposition report was ordered or not, and because this issue was raised for the first time in Appellants' reply brief, we decline to address this issue.

II. The Act is Not Unconstitutionally Vague or Overbroad

{12} Appellants attack NMSA 1978, § 32A-4-2(E) (1997) of the Act as unconstitutionally vague and overbroad. Under this section, "`sexual abuse' includes, but is not limited to, criminal sexual contact, incest or criminal sexual penetration, as those acts are defined by state law." Appellants focus on the words "but not limited to."

{13} We hold that Section 32A-4-2(E) is not unconstitutional as applied, because Nolando's conduct fits into clearly proscribed conduct. Because the statute is constitutional as applied in this case, we hold that Appellants cannot attack this Section as facially invalid. Finally, we hold that Appellants' overbreadth challenge cannot succeed because no First Amendment speech or association right is involved.

A. The Act is Constitutional as Applied

{14} Nolando claims that Section 32A-4-2(E) is unconstitutionally vague as applied to him. See State v. Andrews, 1997-NMCA-017, ¶ 11, 123 N.M. 95, 934 P.2d 289. Nolando's conduct fits squarely within specifically prohibited conduct, namely criminal sexual contact of a minor. Compare Section 32A-4-2(E) ("`sexual abuse' includes, but is not limited to, criminal sexual contact, incest or criminal sexual penetration, as those acts are defined by state law") with NMSA 1978, § 30-9-13 (1991) (defining criminal sexual contact of a minor as "the unlawful and intentional touching . . . the intimate parts of a minor," and defining "intimate parts" to mean the "primary genital area, groin, buttocks, anus or breast."). This criminal statute has been upheld against attack that it is unconstitutionally vague and overbroad. See State v. Pierce, 110 N.M. 76, 80-83, 792 P.2d 408, 412-13 (...

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