State ex rel. Children, Youth & Families Dep't v. Los (In re Christina L.)

• Citation: 362 P.3d 155
• Decision Date: 20 August 2015
• Docket Number: No. 34,061.,34,061.
• Parties: STATE of New Mexico, ex rel., CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner–Appellee, v. CHRISTINA L., Respondent–Appellant, and In the Matter of Justin L., Child.
• Court: Court of Appeals of New Mexico

362 P.3d 155

STATE of New Mexico, ex rel., CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner–Appellee,
v.
CHRISTINA L., Respondent–Appellant,
and
In the Matter of Justin L., Child.

No. 34,061.

Court of Appeals of New Mexico.

Aug. 20, 2015.

362 P.3d 156

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

Law Office of Gina M. Maestas, Gina M. Maestas, Albuquerque, NM, for Appellant.

Sherrie Lee Trescott, Esq., Rio Rancho, NM, Guardian Ad Litem.

OPINION

FRY, Judge.

{1} Mother appeals the district court's judgment of adjudication concluding that her child was neglected on the basis of Mother's inability to care for the child due to a mental disorder or incapacity. On appeal, Mother argues that the evidence was insufficient to support this conclusion because no evidence of a psychological or medical diagnosis of mental disorder or incapacity was presented. We conclude that the district court's findings do not support a determination that Child was neglected pursuant to NMSA 1978, § 32A–4–2(E)(4) (2009). Accordingly, we reverse.

BACKGROUND

{2} This is Mother's second appeal of a judgment of adjudication concluding that Child is neglected. Child was initially taken into the Children, Youth, and Families Department's (CYFD) custody in 2009 based on allegations that domestic violence toward Mother was taking place in the home. In the first case, the district court found that Child was neglected and abused pursuant to Section 32A–4–2(B)(1), (4), and (E)(2) ("[A]bused child means a child ... who has suffered or who is at risk of suffering serious harm because of the action or inaction of the child's parent, guardian or custodian ... [or] whose parent, guardian or custodian has knowingly, intentionally or negligently placed the child in a situation that may endanger the child's life or health.... [A] ‘neglected child’ means a child ... who is without proper parental care and control or subsistence, education,

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medical or other care or control necessary for the child's well-being because of the faults or habits of the child's parent, guardian or custodian or the failure or refusal of the parent, guardian or custodian, when able to do so, to provide them [.]"). In Mother's appeal in the first case, this Court concluded that the district court abused its discretion in admitting 911 dispatch logs and that without these logs there was insufficient evidence to support the district court's conclusion that Child was abused or neglected. State ex rel. Children, Youth & Families Dep't, No. 31,151, mem. op. 2, 10 (N.M.Ct.App. Sept. 18, 2012) (non-precedential).We remanded the case to the district court to determine whether Mother should regain custody of Child. Id. at 12.

{3} On remand, the district court adopted a permanency plan for reunification. Mother participated with CYFD in the reunification plan over the next several months; however, CYFD subsequently filed a motion for leave to file a supplemental abuse and neglect petition on the basis of Section 32A–4–2(E)(4) (stating that one basis of determining that a child is neglected is when the "parent, guardian or custodian is unable to discharge that person's responsibilities to and for the child because of incarceration, hospitalization or physical or mental disorder or incapacity"). In support of CYFD's allegation that Mother suffers from a mental disorder or incapacity, CYFD stated that Mother had submitted to a "mind map assessment" by Dr. Craig Pierce, a psychologist. The petition alleged that the mind map determined Mother's mental capacity to be functionally equivalent to an eight-to ten-year-old child. CYFD moved to consolidate the two cases. Although the district court did not specifically rule on this motion, an adjudicatory hearing was scheduled to determine whether Child was neglected pursuant to the allegations in CYFD's supplemental petition.

{4} At the hearing, Dr. Pierce was qualified as an expert in child and family psychology. Dr. Pierce described the mind map as a non-diagnostic therapeutic tool to assess an individual's developmental history. Dr. Pierce described the process as "relatively simple" and includes gathering information regarding the individual's family history and adverse childhood events that may have impacted the individual's brain development. Dr. Pierce testified that the mind map relies on a nine-page questionnaire to gather this information. He further testified that the mind map uses this self-reported information to evaluate cognitive and relational brain development, as well as sensory integration and self-regulation, and compares the results in those categories to "age typical" results. Dr. Pierce testified that Mother's results showed her to be in the fortieth percentile for people her age. Dr. Pierce concluded that, based on the mind map, Mother's brain development in the areas covered by the mind map were "significantly compromised" and that she functioned mentally at a lower age range to comparably aged adults. Dr. Pierce testified that, based on the results, Mother's ability to parent a small child was affected by her limitations, such as her ability to exercise sound judgment and prioritize the needs of Child. On cross-examination, however, Dr. Pierce clarified that the purpose of the mind map was to direct therapy and assist Mother in learning parenting skills, not to diagnose a mental disorder or condition or to act as a standardized test for determining an individual's intelligence, such as an IQ test.

{5} Child's therapist, Brenda Lee, also testified at the hearing. Lee testified that while Mother showed aptitude in learning about Child's various mental diagnoses, Lee was frustrated by Mother's resistance to the "understanding training" Lee attempted to impart. Lee testified that Mother attempted to speak secretly to Child during supervised visits despite CYFD's instruction to Mother not to discuss Child's foster situation with Child. Lee testified that Mother's visits incited Child to exhibit reactive behaviors when he returned to his foster parents. Lee also testified that Mother threatened her on one occasion.

{6} Testimony by CYFD representatives echoed Lee's testimony. One representative testified that, although Mother was eager to meet with CYFD representatives, she had difficulty accepting constructive feedback and focusing on treatment goals. Mother also withdrew during meetings where she disagreed

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with discussions. Mother became resistant to further training by Lee after she was instructed on the results of the mind map.

{7} Sarah Blackwell, a CYFD representative, further testified regarding her concerns arising from a home assessment at Mother's residence. Blackwell noted that at the time of the visit, she observed that Mother had five dogs and a number of pet rats living at the residence. She testified that due to these animals, the home smelled of urine or feces. Blackwell also noted overflowing trash cans and general clutter throughout the home. Blackwell also expressed concern for the way in which Mother stored her medications and the presence of alcohol stored near Mother's bed.

{8} Mother also testified at the hearing. Pertinent to her testimony was the introduction of certificates showing Mother's successful completion of various parenting classes, including certificates awarded by Lee.

{9} Finally, although psychological evaluations of Mother were performed by Dr. Christopher Alexander and Dr. Nesha Morse, neither was called to testify. A CYFD representative was questioned regarding the findings of the psychological evaluations but...