State ex rel. Children, Youth & Families Dep't v. Melvin C.

• Citation: 350 P.3d 1251
• Decision Date: 27 April 2015
• Docket Number: 33,605.
• Parties: STATE of New Mexico ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner–Appellee, v. MELVIN C., Respondent–Appellant, and Samantha M., Respondent. In the Matter of Daevon Dre C., Child.
• Court: Court of Appeals of New Mexico

350 P.3d 1251

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

v. MELVIN C., Respondent–AppellantandSamantha M., Respondent.In the Matter of Daevon Dre C., Child.

33,605.

Court of Appeals of New Mexico.

April 27, 2015.

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.

Alex Chisholm, Albuquerque, NM, for Appellant.

Richard J. Austin, PC, Richard J. Austin, Farmington, NM, Guardian Ad Litem.

OPINION

KENNEDY, Judge.

{1} This case resides between our Opinion in State ex rel. Children, Youth & Families Dep't v. Christopher B., 2014–NMCA–016, 316 P.3d 918, and the Supreme Court's Opinion in In re Grace H., 2014–NMSC–034, 335 P.3d 746. In this case, we hold that, when a parent pleads no contest to abuse and neglect and the lower court proceeds with an adjudication on that basis, the court, if it terminates parental rights, must proceed under NMSA 1978, Section 32A–4–28(B)(2) (2005). The children's court (hereinafter, the court) erred here by ignoring its earlier adjudication and changing course, absent a dispositional hearing based on its finding of neglect. It erred by allowing termination of parental rights by presumptive abandonment under NMSA 1978, Section 32A–4–22(B)(1) and (B)(3) (2005) when it had already adjudicated neglect. Father wished to make efforts toward reunification by pursuing a treatment plan as the court and the Children, Youth and Families Department (CYFD) had discussed with him at the time of the adjudication of neglect. The court was obligated to proceed under Section 32A–4–22(B)(2) to resolve Father's case. We therefore reverse the court's termination of Father's parental rights.

I. BACKGROUND

{2} Child was born in March 2013 to Melvin C. (Father) and Samantha M. (Mother) and tested positive for illegal drugs. Following a Family Centered Meeting on March 5, 2013, where Father and Mother appeared telephonically, an amended neglect or abuse petition was filed by CYFD. The court entered an ex parte custody order on March 7, 2013, giving CYFD legal and physical custody of Child. A custody hearing was held on March 18, 2013, which Father did not attend. During that hearing, the court found that Child could not be safely returned to Father and Mother due to substance abuse and “the inability to provide safe housing.” A custody hearing order filed on April 8, 2013, provided notice of a subsequent adjudicatory and dispositional hearing. On August 6, 2013, CYFD filed a motion for termination of parental rights as to both Father and Mother, alleging abandonment, abuse and neglect, and presumptive abandonment as grounds for termination. Father had no contact with Child or CYFD from March 2013 until September 2013, when he was served with the petition for neglect and abuse in a prison in Colorado to which he had been sentenced a few months earlier. The court set a hearing for October 28, 2013, on CYFD's abuse/neglect petition and its motion to terminate parental rights (TPR). The court granted a continuance of that hearing, and counsel for Father requested that the court move forward with the adjudicatory hearing, but postpone the TPR hearing that had been scheduled. Accordingly, Father filed a motion to continue the TPR hearing. The motion stated, in particular, that Father “want[ed] to participate and work a treatment plan in an attempt to reunify with [Child].” The motion requested that the court vacate the portion of the upcoming November 4, 2013, hearing “pertain[ing] to the termination of [his] parental rights” so that Father has the “opportunity to work a treatment plan” and can “move toward[ ] reunification with ... [C]hild.” The motion was granted, and the court subsequently filed a notice of hearing, identifying the November hearing as an adjudicatory hearing as to Father only. As to Mother, however, the purpose of the November 4 hearing was to allow CYFD to pursue termination of Mother's parental rights.

{3} At the November 4 hearing that Father entered a no contest plea to an allegation of neglect under NMSA 1978, Section 32A–4–2(E)(2) (2009). The court questioned Father about the nature of his plea and explained “the possible dispositions for a finding of neglect.” In doing so, the court explained what would happen if there was a stipulation to neglect in the form of a plea: “The court will hear from [CYFD] and the court will enter a finding, pursuant to your agreement, to a finding of neglect.” Father pleaded no contest to neglect and abuse, and Child was so adjudicated as to Father.

{4} While CYFD pursued termination of Mother's parental rights based on abandonment during the November 4 hearing, Father's involvement was limited to the neglect and abuse adjudication. The court explained to Father that one of the consequences of its making a finding of neglect was the development of a treatment plan. Father stated that he understood the court's explanation. In the course of establishing the factual basis for the plea, CYFD made a short statement, concluding that, for a variety of reasons, Father was “unable to provide the needs of ... Child.” CYFD's only reference to abandonment by Father came in the context of the TPR hearing against Mother at that time. Despite CYFD's failure to mention abandonment as grounds for an adjudication of neglect as to Father, the court added: “I'm assuming also part of this is, you mentioned it, but also based on a failure to provide because he abandoned ... [C]hild,” to which CYFD answered simply, “yes.”

{5} Following CYFD's foundational statements, the court accepted Father's stipulation to neglect and made “a finding of neglect, pursuant to [Section 32A–4–2 ](E)(2).” Based on Father's stipulation and CYFD's statement, the court postponed the dispositional hearing, stating: “Let's try to set it out thirty days and, hopefully, we will have a better idea as to [Father's] position and what can be offered or what can be done.”

{6} On November 21, 2013, CYFD informally notified Father that it intended to pursue termination of his parental rights at the next hearing scheduled for December 9, rather than conduct a dispositional hearing. In response, on November 25, 2013, Father filed a motion to vacate the TPR hearing. The motion was denied. The notice of hearing issued on December 4, 2013, listed the nature of the December 9, 2013, hearing as “[d]ispositional [and] TPR.” Thirty-five days after the adjudicatory hearing, the court held a hearing, during which it characterized the previous adjudicatory hearing as a “little meeting.”

{7} At the beginning of the December 9 hearing, which occurred after the Rule 10–344(C) NMRA thirty-day deadline for conducting dispositional hearings, Father's counsel made the argument that, under the statutory scheme, Father possessed the “opportunity to have a dispositional order entered and be permitted to work a treatment plan” and that the TPR hearing therefore should have been vacated. Counsel also pointed out that Father's November 4 stipulation to neglect was made “in part because he believed he would be able to work a disposition plan” and that the statutory scheme of Section 32A–4–22(C) “provides the court shall order [CYFD] to implement a treatment plan whenever there has been a finding of neglect or abuse.” In response to CYFD's allegations of abandonment, counsel asserted that Father attempted to participate in the placement of Child and that Father did not abandon Child. These arguments were unavailing. After hearing arguments from the parties, the court ruled that it would proceed with a TPR hearing “based only on abandonment.” The court acknowledged the previous finding and adjudication of neglect.

The court [will] not use any findings made at previous hearings regarding any kinds of findings.... I know there was an entry of a stipulation based on some ... representations that ... there would be a treatment plan he would be entitled to work. The court will not consider that adjudication.

{8} CYFD then proceeded to establish the basis for termination of Father's parental rights based solely on an abandonment theory. Because CYFD intended to proceed only on the theory of abandonment, the court determined it would be appropriate to proceed. Relying on Christopher B., 2014–NMCA–016, ¶ 12, 316 P.3d 918, the court believed it was appropriate to allow CYFD to “move forward without even a finding of neglect or abuse prior to proceeding on the theory of terminating someone's parental rights based on a theory of abandonment.” The court emphasized that it was not considering a termination based on failure to follow a treatment plan because a treatment plan had not been adopted in the case, further stating that CYFD has a right, when claiming abandonment, to proceed on that theory at any time.

{9} After hearing testimony in the case, the court found that CYFD had proven, by clear and convincing evidence, Father abandoned Child. The court stated that “abandonment is a separate analysis in this case,” and “it is not necessary that [CYFD] develop a treatment plan when the allegation of abandonment is being made and pursued and proven.” In its findings of fact and conclusions of law, the court acknowledged that “[a d]ispositional [h]earing was not held” in the case, and it had allowed CYFD “to proceed only on the allegations of [a]bandonment.” The court concluded that “[c]lear and convincing evidence exists that Father abandoned Child pursuant to Section 32A–4–28(B)(1) of the Children's Code.” In its judgment, the court also added presumptive abandonment under Section 32A–4–28(B)(3) as grounds for termination. The court accordingly terminated Father's parental rights on February 10, 2014. Father filed a timely appeal.

II. DISCUSSION

{10} “This Court reviews issues of statutory interpretation de novo.” In re Grace H., 2014–NMSC–034, ¶ 34, 335 P.3d 746. The parties dispute whether the court...