State ex rel. Children, Youth & Families Dep't v. Paul R.

Decision Date21 September 2022
Docket NumberA-1-CA-39891
CourtCourt of Appeals of New Mexico
PartiesSTATE OF NEW MEXICO ex rel. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. PAUL R., Respondent-Appellant, and TYIA F., Respondent, and SARA K. and TRAVIS K., Intervenors, IN THE MATTER OF AALIYIAH F., Child.

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY William E Parnall, District Judge

Children, Youth & Families Department Mary McQueeney Chief Children's Court Attorney Santa Fe, NM Kelly P O'Neill, Children's Court Attorney Albuquerque, NM for Appellee

Susan C. Baker El Prado, NM for Appellant

Richmond L. Neely Albuquerque, NM for Intervenors Deborah Gray Law, LLC Deborah Gray Albuquerque, NM Guardian Ad Litem

MEMORANDUM OPINION

MEGAN P. DUFFY, Judge

{¶1} Father appeals from the termination of his parental rights to Child. We issued a calendar notice proposing to affirm. Father has filed a memorandum in opposition that includes a new argument we construe as a motion to amend the docketing statement, both of which we have duly considered. Unpersuaded, we affirm. {2} Father continues to argue that the district court erred in finding that there was clear and convincing evidence presented to support the termination of his parental rights to Child. [MIO 9-13] Specifically, Father asserts that he had been following his treatment plan and although there was a domestic violence incident in the summer of 2020 between himself and Mother, because he and Mother separated, the domestic violence incidents were no longer a threat to Child. [MIO 13] Father, however, does not dispute any of the other facts relied upon in the calendar notice- that Father has had ongoing issues with substance abuse and untreated mental health issues; Father's disinterest in participating with the permanency planning workers; Father failing to complete drug tests and other recommended appointments and psychological evaluations; and that Father has minimized the issues that brought Child into the custody of the Children, Youth, and Families Department (CYFD). [CN 3-6] Even assuming, as Father asserts, domestic violence was the only reason CYFD decided against Child's reunification with Father [MIO 12], there was other evidence presented at the hearing relied upon in the proposed disposition to support the termination of parental rights, which Father has not pointed to as an error in fact. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 ("Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law."); cf. State ex rel. Child., Youth & Fams. Dep't v. Brandy S., 2007-NMCA-135, ¶ 25, 142 N.M. 705, 168 P.3d 1129 (agreeing that an erroneous finding, not independently established by testimony at the hearing, is not grounds for reversal where the finding was not essential to the ultimate ruling on the termination of parental rights motion). To the extent Father seeks reversal so that he can be allowed a longer period of time to work towards reunification with Child [MIO 12, 13], that is not a proper basis for reversal. See State ex rel. Child., Youth & Fams. Dep't v. Maria C., 2004-NMCA-083, ¶ 53, 136 N.M. 53, 94 P.3d 796 ("[T]he district court need not place children in a legal holding pattern, while waiting for the parent to resolve the issues that caused their children to be deemed neglected or abused."). Accordingly, we are unpersuaded that the arguments asserted by Father in his memorandum in opposition impact our analysis or our proposed disposition of the case; as such, we affirm for the reasons stated in our notice of proposed disposition.

{¶3} Father also contends that he received ineffective assistance of counsel because his trial counsel failed to timely file the docketing statement. [MIO 13] Father maintains that he was prejudiced because had the docketing statement been timely filed, his case would also have been assigned to the general calendar as Mother's had. [MIO 14] Initially, Father's ineffective assistance of counsel claim was based on the contention that inadequate funding for court appointed attorneys resulted in ineffective assistance of counsel due to the disincentive to investigate and fully prepare for abuse and neglect cases. [DS PDF 13] We therefore construe this new argument as a motion to amend the docketing statement. Not having responded to the Court's proposed disposition on the initial grounds raised in the docketing statement, we deem that issue abandoned. See Griffin v. Thomas, 1997-NMCA-009, ¶ 7, 122 N.M. 826, 932 P.2d 516 ("[A]n issue is deemed abandoned where a party fails to respond to the calendar notice's proposed disposition of the issue[.]").

{¶4} As to the motion to amend the docketing statement, this Court will grant such a motion to include...

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