STATE EX REL. CY & F. v. VANESSA C., 20181.
| Decision Date | 09 February 2000 |
| Docket Number | No. 20181.,20181. |
| Parties | STATE of New Mexico ex rel. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. VANESSA C., Respondent-Appellant. |
| Court | Court of Appeals of New Mexico |
Angela L. Adams, Chief Children's Court Attorney, Roy E. Stephenson, Children's Court Attorney, Santa Fe, for Appellee.
Robert Waterworth, Nancy L. Simmons, Law Offices of Nancy L. Simmons, Albuquerque, for Appellant.
Certiorari Denied, No. 26,220, March 22, 2000.
{1} Mother appeals the termination of her parental rights to Brittany and Alisha. On appeal, Mother raises five issues: (1) the trial court violated her right to due process by making a finding of futility ( that additional efforts to engage her in a treatment plan to reunify her with her children would be futile) at an informal judicial review hearing, even though no party asked for a full evidentiary hearing; (2) the trial court's finding of futility was erroneous because it relied on hearsay in violation of Rule 11-802 NMRA 2000, even though Mother did not object to the use of hearsay; (3) there was not clear and convincing evidence to support the trial court's finding of futility; (4) there was not clear and convincing evidence to support the trial court's finding that the causes and conditions of abuse or neglect were unlikely to change in the foreseeable future; and (5) she received ineffective assistance of counsel, in part due to the failures to object noted in the first two issues. We consolidate the issues into three areas for discussion and affirm.
{2} On May 31, 1996, the Children, Youth & Families Department (the Department) took Brittany and Alisha into custody after Mother was arrested on a charge of receiving and transporting a stolen vehicle. Three days later, the Department filed a petition alleging Mother had abused and neglected her children. The trial court held a hearing on the Department's petition on September 6, 1996.
{3} About three weeks later, the trial court entered judgment in which it concluded that Mother's children had been neglected and that they should remain in the custody of the Department. On that same date, the trial court adopted the Department's proposed disposition and treatment plan. Under the treatment plan, Mother had to (1) participate in weekly random drug screening tests, (2) meet with a psychotherapist to address the issues specified in her psychological evaluation and the parenting issues identified by her social worker, (3) maintain regular visitation with her children, and (4) continue in her efforts to obtain suitable housing for her and the children. The Department proposed psychological therapy and drug treatment as part of Mother's treatment plan because she had neglected her children "due to [her history of] substance abuse and domestic violence in California and New Mexico."
{4} In March 1997, the trial court performed the first of several judicial reviews regarding Mother's compliance with the treatment plan. The trial court's review was generally favorable. The trial court found that Mother had made sincere efforts to find a stable place to live, was employed, and had consistently attended her therapy sessions with her psychotherapist. The only unfavorable finding the trial court made was that Mother had not compiled with the drug screening part of her plan. The trial court adopted the Department's proposed amended treatment plan to address Mother's continuing drug issues.
{5} In August 1997, the trial court conducted its second judicial review. At the hearing, the Department advised the trial court that Mother had made significant progress toward completing the treatment plan. In particular, the Department informed the trial court that Mother had submitted five of the eight drug tests required of her, only one of which tested positive for amphetamine or methamphetamine; Mother had completed all of her scheduled psychotherapy sessions; Mother had consistently attended her weekly supervised visits with her children; and Mother had worked hard at developing a stable and secure environment for her children. Based in large part on the Department's judicial review report, the trial court returned Mother's children to her physical custody on August 14, 1997.
{6} Two weeks later, Mother's children were returned to the Department's physical custody after Mother was arrested for violating the terms of her probation. As a result of this arrest, Mother's original probation was revoked and a new probation was ordered. During the two-week time period that Mother had physical custody of her children, Mother's social worker attended a Citizen Review Board (CRB) hearing. At the hearing, the CRB recommended that the trial court not place Mother's children in her physical custody. The CRB based its opinion on Mother's failure to comply with the terms of her probation, her failure to attend substance abuse counseling, her failure to acknowledge that Brittany had been sexually abused, and the unknowns of her living situation at the time. Mother's social worker also learned that during the two-week period, Brittany had gone home to an empty home on one occasion and that she had been transported to school by two men unknown to her on another occasion.
{7} In March 1998, the Department submitted to the trial court a very unfavorable judicial review report regarding Mother's compliance with the treatment plan. In particular, the Department informed the trial court that in October 1997, Mother had been arrested again for violating the terms of her probation. At about the same time, Mother and her partner were involved in a domestic violence altercation during which Mother bit her partner's forearm three or four times and cut his thumb with a razor. The trial court also learned at the hearing that in December 1997 and January 1998, Mother had taken several drug tests, both for her social worker and for her probation officer. During the course of these two months, Mother's urine tested positive for methamphetamine on at least five occasions. Mother's probation officer stated that when he visited Mother at her house to administer the drug tests, he observed that her house was in bad condition, that it was "gross." The Department stated in its judicial review report that it intended to ask the trial court to enter a finding of futility.
{8} In June 1998, the trial court conducted its third judicial review. At the hearing, the Department formally asked the trial court to enter a finding of futility. In support of its request, the Department reiterated the information contained in its March 1998 judicial review report and, in addition, informed the trial court that Mother had failed to produce documentation regarding the steps she had taken to comply with the treatment plan. The Department advised the trial court that Mother's unwillingness to produce such documentation obstructed the Department's ability to assess whether Mother was drug free. The Department also produced letters from the children's guardian ad litem, as well as their therapists. The letters indicated that the children loved Mother and that she loved them, but that Mother appeared incapable of recognizing or changing the "aspects of her life (poor choice of domestic partners, drug use, living on the `edge' of the law) which place her children at serious risk of neglect or abuse."
{9} In her defense, Mother stated, through her attorney, that she had attended drug rehabilitation programs at Turquoise Lodge and the Milagro program. Mother indicated that she had signed forms to release this information to the Department and that she had continued providing urinalysis throughout the course of her probation. Finally, Mother claimed that she continued to visit her children and continued to make efforts to comply with the treatment plan. At the end of the hearing, the trial court found that the Department had made reasonable efforts to reunite Mother and her children and that further efforts to do so would be futile. As a consequence of the trial court's ruling, the Department no longer assisted Mother.
{10} Two months later, in August 1998, the Department filed a motion to terminate Mother's parental rights to Brittany and Alisha. The trial court held the termination hearing in December 1998. The trial court heard a great deal of testimony which either clarified or corroborated the issues that had been addressed at the June judicial review hearing. At the end of the hearing, the trial court terminated Mother's parental rights to Brittany and Alisha. The trial court asked counsel to submit proposed findings of fact and conclusions of law. The Department complied with the trial court's request, while Mother did not. In January 1999, the trial court wholly adopted the Department's proffered findings and conclusions, and it entered an order terminating Mother's parental rights.
I. & II. DUE PROCESS & HEARSAY
{11} On appeal, Mother claims the trial court's reliance on hearsay evidence and oral argument and its corresponding failure to swear in witnesses and take formal testimony deprived her of a fair hearing at the futility hearing. In support of her claim, Mother relies on State ex rel. CYFD v. Erika M., 1999-NMCA-036, 126 N.M. 760, 975 P.2d 373. In Erika M., the trial court terminated the mother's parental rights by summary judgment. See id. ¶ 1. We reversed the trial court's decision because the mother presented evidence that raised genuine issues of material fact, thus defeating summary judgment. See id. ¶ 29.
{12} In spite of our holding, we addressed the mother's claim that her due process rights had been violated because the trial court's decision was based exclusively on facts developed at judicial review hearings. See id. ¶¶ 26-28. We noted that the termination of parental rights implicates a liberty...
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