State ex rel. Children, Youth & Families Dep't v. Josie G.
| Decision Date | 19 July 2021 |
| Docket Number | No. A-1-CA-39128,A-1-CA-39128 |
| Citation | 499 P.3d 658 |
| Parties | STATE of New Mexico EX REL. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. JOSIE G., Respondent-Appellant, and Julian G., Interested Party, In the Matter of Eliese G., Child. |
| Court | Court of Appeals of New Mexico |
Children, Youth & Families Department, Rebecca J. Liggett, Chief Children's Court Attorney, Robert Retherford, Children's Court Attorney, Santa Fe, NM, for Appellee
Law Offices of Nancy L. Simmons, P.C., Nancy L. Simmons, Albuquerque, NM, for Appellant
Julie M. Saiz, Albuquerque, NM, Guardian Ad Litem
{1} Josie G. (Mother) appeals the termination of her parental rights to her daughter, Eliese G. (Child).1 Mother advances three arguments: (1) the proceedings constituted fundamental error that violated Mother's statutory rights under the Abuse and Neglect Act, (2) the proceedings violated Mother's procedural due process rights, and (3) insufficient evidence supported termination of Mother's parental rights. Unpersuaded, we affirm.
{2} Child was brought into Children, Youth and Families Department (CYFD) custody in January 2016, less than a month before her third birthday. In March 2016, Mother pleaded no contest to neglecting Child due to her domestic violence, substance abuse, and mental health issues.
{3} Child was initially diagnosed with disinhibited social engagement disorder, an attachment related disorder, and unspecified trauma related disorder, which manifested as hypervigilance, expressions of bad memories, angry outbursts, and refusal to cooperate with adult directives. Child's treating psychologist described Child as very angry and traumatized, hypervigilant, demanding, and exhibiting behaviors consistent with abuse. Child's treating psychologist testified that children as young as two years old can recall traumatic memories, and recommended that visits with Mother should begin as family therapy, maintained on the pace recommended by Child's therapist. In 2017, Child was additionally diagnosed with unspecified disruptive behavior disorder and later with oppositional defiant disorder.
{4} Before visitation began, Child talked about her fear of Mother and exhibited behavioral issues, including hurting herself and others. Child's therapist and treatment team believed that Child's acts of self-harm needed to be reduced before starting visitation with Mother because of the risk that contact with Mother would increase those harmful behaviors.
{5} When Child's behaviors had improved, the first round of visits began in November 2016 with Child's therapist facilitating family therapy sessions with Mother and Child. Mother behaved appropriately during the first visit and the visit went well. Mother had additional visits in January and February 2017 and Mother's behavior was appropriate during these visits.
{6} After these visits with Mother, however, Child's harmful behavioral issues increased. A few weeks after the November visit, Child attacked her therapist by throwing things and hitting and scratching her. Child's negative behavior continued following the January and February visits. Child was aggressive, impulsive, hyperactive, lashed out unexpectedly, and engaged in behaviors that required therapeutic holds. Child's behavior included throwing herself to the ground, scratching at her face, punching herself in the face, pulling out her hair, and kicking the ground with such force that Child's therapist worried Child would break her feet. Child's treatment team decided to suspend visitation with Mother in order to stabilize Child, and within a few months after visits with Mother ended, Child's behavior improved; Child continued to exhibit some behavioral issues, such as screaming and crying on the floor, but Child did not attempt to harm herself and did not require therapeutic holds.
{7} The second round of visitation consisted of three visits beginning in September 2017 and continuing through November 2017. Child's therapist conferred with Mother's therapist regarding family therapy sessions, which occurred monthly during this time. In September, when Child's therapist was attempting to prepare Child for the upcoming visits with Mother, Child stated that Mother was mean; Mother did not feed her; Mother was evil; and she was afraid of Mother. Even so, Mother's behavior was appropriate during these visits, and Mother effectively incorporated feedback from Child's therapist about how to engage with Child.
{8} After these visits with Mother, Child yet again became more irritable, angry, and once again began hurting herself by pulling out her hair and scratching her face. During the November visit, Child was irritable, agitated, and stated that she did not want to see Mother, but Child's therapist proceeded with the family therapy session. During the November session, Child ran from the therapy room where she was visiting with Mother. Visitation was then suspended for two reasons: at the recommendation of Child's treatment team, and due to Child's disclosure of sexual abuse by Mother.
{9} Following the suspension of visitation, Child began to stabilize after a few months. However, in early 2018 Child began describing "Mr. Sink," a tall dark person with a black hat and red eyes, who, according to Child, did not like Child's therapist and would stand behind Child's therapist during discussions of Mother. During therapy, when first discussing Child's disclosure of sexual abuse by Mother, Child said "no no no no no" under her breath and deepened her voice, addressing the therapist as Mr. Sink. After this event, Child took longer to stabilize than previously, and Child refused to enter her therapy room until her therapist showed her that there was no one else in the room. Child's self-harming behavior continued, but lessened over time. By the end of 2018, Child was not hurting herself and no longer discussed Mr. Sink.
{10} The third and final attempt at visitation occurred in February 2019. At that time, Child was stable, was not hurting herself, and would enter her therapy room without difficulty. A plan was developed to restart visits with Mother, beginning with phone contact, sharing of photos, discussions of Mother in Child's therapy sessions, and then family therapy with Mother. During the February 2019 treatment team meeting, Child spoke with Mother by phone, and Child's therapist told Child during a therapy session about the plan to restart visits with Mother.
{11} The following week, Child refused to enter the room for her weekly therapy session and stated that her stomach was hurting; Child asked to go to the bathroom, where she was found masturbating. Child's negative behaviors increased in the weeks that followed—she was irritable, aggressive, discussed two voices in her head that told her to be angry, and described seeing shadows on her wall that were mean to her. The plan to restart visitation with Mother was abandoned due to concern that Child's increased behavioral issues would require residential treatment.
{12} Although it was uncontested that Mother completed her treatment plan, CYFD moved to terminate Mother's parental rights and following a five-day TPR hearing, the district court terminated Mother's parental rights.
{13} Mother alleges that the proceedings violated her rights under the Abuse and Neglect Act because: (1) CYFD "permanently suspended" her visits with Child in November 2017, and "unilaterally" decided to keep Child in custody without a plan to return home; and (2) the district court failed to dismiss the case, change the permanency plan, or return Child to Mother by July 31, 2017, which Mother alleges violated the six-month timeline outlined in NMSA 1978, Section 32A-4-25.1(D) (2009, amended 2016).
{14} As Mother concedes, she failed to preserve her arguments regarding alleged violations of her statutory rights, and we therefore review for fundamental error. "[T]ermination of parental rights cases can be candidates for fundamental error analysis[,]" and State ex. rel. Children, Youth & Families Dep't v. Paul P., Jr. , 1999-NMCA-077, ¶ 14, 127 N.M. 492, 983 P.2d 1011 (internal quotation marks and citation omitted).
{15} To the extent that Mother claims that CYFD "permanently suspended" her visits with Child in November 2017 and "unilaterally" kept child in custody, without a plan to return home, we note that Mother fails to direct us to evidence in the record to support these allegations, and where a party fails to cite any portion of the record to support its factual allegations, this Court need not consider its argument on appeal. See Santa Fe Expl. Co. v. Oil Conservation Comm'n , 1992-NMSC-044, ¶ 11, 114 N.M. 103, 835 P.2d 819 ; see also Rule 12-318(A)(3) NMRA ().
{16} Nonetheless, our own review of the record demonstrates that, contrary to Mother's claims, the November 2017 suspension of visits was neither unilateral nor permanent, and Child's permanency...
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