State ex rel. Children, Youth v. AMY B., 22,432.

• Decision Date: 17 September 2002
• Docket Number: No. 22,432.,22,432.
• Parties: STATE of New Mexico, ex rel. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. AMY B., Respondent-Appellant, and In the Matter of Marcus Devon M., a Child.
• Court: Court of Appeals of New Mexico

61 P.3d 845

133 N.M. 136

2003 NMCA 17

STATE of New Mexico, ex rel. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. AMY B., Respondent-Appellant, and In the Matter of Marcus Devon M., a Child.

No. 22,432.

Court of Appeals of New Mexico.

September 17, 2002.

Angela L. Adams, Chief Children's Court Attorney, Daniel J. Pearlman, Children's Court Attorney, Santa Fe, NM, for Appellee. Nancy L. Simmons, Albuquerque, NM, for Appellant.

OPINION

PICKARD, Judge.

{1} This case involves NMSA 1978, §§ 32A-4-2(C), -22(C), and -28(B) (1999), which were passed in response to the Adoption and Safe Families Act, 42 U.S.C. § 671(a)(15)(D) (1997), and which delineate the circumstances under which the State need not undertake reasonable efforts to reunite the family prior to terminating a parent's parental rights. Mother contends that the statutes were unconstitutionally applied to her and that her attorney rendered ineffective assistance of counsel in failing to object to their application in the circumstances of this case. We disagree and affirm.

LEGAL BACKGROUND

{2} Ordinarily, except in cases of actual or presumptive abandonment under Section 32A-4-28(B)(1) or (3), parental rights may not be terminated in the case of a neglected or abused child unless the court finds that "the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts by the department or other appropriate agency to assist the parent in adjusting the conditions that render the parent unable to properly care for the child." Section 32A-4-28(B)(2). However, Section 32A-4-28(B)(2) goes on to provide that:

The court may find in some cases that efforts by the department or another agency are unnecessary, when:

(a) there is a clear showing that the efforts would be futile;

(b) the parent has subjected the child to aggravated circumstances; or

(c) the parental rights of the parent to a sibling of the child have been terminated involuntarily[.]

Section 32A-4-2(C) provides that:

"aggravated circumstances" include those circumstances in which the parent, guardian or custodian has:

(1) attempted, conspired to cause or caused great bodily harm to the child or great bodily harm or death to the child's sibling;

(2) attempted, conspired to cause or caused great bodily harm or death to another parent, guardian or custodian of the child;

(3) attempted, conspired to subject or has subjected the child to torture, chronic abuse or sexual abuse; or

(4) had his parental rights over a sibling of the child terminated involuntarily[.]

To a like effect, Section 32A-4-22(C) ordinarily provides that a disposition of adjudicated neglected or abused children shall include a treatment plan for the parents outlining reasonable efforts at reunification of the family; however, such is not required under circumstances virtually identical to those listed in Section 32A-4-28(B)(2). It appears that Section 32A 4 2(C)(4) is somewhat redundant in that Sections 32A-4-22(C) and -28(B)(2) list both aggravated circumstances and termination of rights to a sibling, which is one of the aggravated circumstances, as independent reasons why reasonable efforts at treatment and reunification of the family are not required. That redundancy does not concern us in this case, however, because the termination of parental rights to a sibling triggers the elimination of the requirement of reasonable efforts, whether it does so in its own right or as a definitional element of aggravated circumstances.

FACTS

{3} In 1998, Mother's parental rights to her first two children were terminated due to Mother's drug abuse, which caused her to neglect and abuse these children, and due to her inability to change her habits that led to the neglect and abuse despite reasonable efforts of the Department to assist her. In the beginning of 2000, Mother was serving a sentence for forging checks to obtain money to buy drugs. She was paroled in March 2000 and almost immediately got pregnant with the child at issue (Child). Her parole was revoked in July for failure to report to authorities, and she returned to prison. She was released from prison in October 2000 and began using drugs again. After a three-day drug binge using crack cocaine, Mother gave birth to Child one month early, on November 12. Mother was 22 years old at the time. Child was born with cocaine in his system. Mother was rearrested for dirty urine and failure to appear and was returned to prison.

{4} An abuse/neglect petition was filed a few days after Child's birth. It specifically alleged that Mother had had her parental rights to Child's siblings terminated and referenced Section 32A-4-2(C)(4), which is the statute that makes such fact an aggravated circumstance. Mother pleaded no contest to the petition at an adjudicatory hearing on January 18, 2001. At the time of the adjudicatory hearing, the trial court advised Mother that her parental rights could be terminated if she "failed to work a treatment plan."

{5} There were two dispositional hearings. At the first one, on February 15, the Department asked the trial court to exercise its discretion under Section 32A-4-22 and not order a treatment plan due to the prior termination of Mother's parental rights to Child's siblings. Mother asked the trial court for more time, and the dispositional hearing was continued to March 1. Mother never sought to withdraw her no-contest plea, and only asked the trial court not to exercise its discretion to relieve the Department of making reasonable efforts. The trial court's disposition nonetheless did relieve the Department of that burden. However, nothing precluded Mother from making efforts on her own behalf in an attempt to alleviate the conditions that led to the abuse and neglect, although Mother continued to be incarcerated.

{6} Following the March 1 dispositional hearing, the Department moved to terminate parental rights on the grounds that Child was neglected or abused, that Mother had previously had parental rights terminated, that Mother had been unable since the prior termination to address the drug abuse that caused her to abuse and neglect her children, and that Child was in need of a stable caregiver. At and following the termination hearing in April 2001, Mother took the position that she had reformed, that she was now admitting problems with drug abuse, that she only needed more time, and that therefore there was not clear and convincing evidence that the causes and conditions of neglect were unlikely to change in the foreseeable future. The trial court found that Child was neglected and abused, and that aggravated circumstances existed because Mother's parental rights to Child's siblings had been terminated. However, the trial court also found and concluded that Mother had had four years to correct her substance abuse problems, that she had not made sufficient progress, that it was shown by clear and convincing evidence that Mother was unable to remedy the causes of the abuse and neglect of Child within the foreseeable future, and that it was in the best interests of Child to terminate Mother's parental rights.

DISCUSSION

{7} Prior to the enactment of the Adoption and Safe Families Act, both state and federal law appeared to give primary consideration to the rights of the parents, as opposed to the welfare of their children. Both our statute, in Sections 32A-4-22(C) and -28(B) (prior to the 1999 amendments), and the federal statute (effective October 1, 1983, until 1997) required a showing of reasonable efforts at family reunification in all cases. Our statute required this before parental rights could be terminated, and the federal statute required it as a condition of eligibility for federal funding benefits. The 1997 Adoption and Safe Families Act, in eliminating the requirement of reasonable efforts under certain circumstances, and in requiring the states to follow suit in order to be eligible for federal benefits, was responding to perceived excesses in the application of the reasonable efforts requirement. See In re Custody & Guardianship of Marino S., 181 Misc.2d 264, 693 N.Y.S.2d 822, 825 (Fam.Ct.1999). As stated in the legislative history of the federal provision:

There seems to be almost universal agreement that adoption is preferable to foster care and that the nation's children would be well served by a policy that increases adoption rates.... [H]owever, ... there are a variety of barriers to adoption.... One barrier is the "reasonable efforts" criterion in the Federal statute.

[T]here seems to be a growing belief that Federal statutes, the social work profession, and the courts sometimes err on the side of protecting the rights of parents. As a result, too many children are subjected to long spells of foster care or are returned to families that reabuse them.

H.R.Rep. No. 105-77, at 8 (1997), reprinted in 1997 U.S.C.C.A.N. (111 Stat. 2115) 2739, 2740. Accordingly, the federal statute removed the requirement of reasonable efforts when there are aggravated circumstances, such as torture or sexual abuse, and also removed the requirement of reasonable efforts when there is a homicide of a child or when the parent has had parental rights to another child terminated. Id. Our state has conformed the New Mexico statutes to the federal requirements in Sections 32A-4-2(C), -22(C), and -28(B).

{8} We understand Mother's argument on appeal to have several components. First, she argues that she was harmed by two procedural aspects of the case: (1) that her plea was involuntary or not knowing because at the time she pleaded no contest to the allegations of abuse and neglect, she thought the Department would be required to engage in reasonable efforts and (2) that her attorney was ineffective because he did not raise any constitutional issues below or in the docketing statement, but instead simply argued that the trial court should not, in its discretion, eliminate the...