State ex rel. CYFD v. SHAWNA C.

• Decision Date: 20 April 2005
• Docket Number: No. 24625.,24625.
• Parties: STATE of New Mexico ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. SHAWNA C., Respondent-Appellant, and In the Matter of Lakota C., a Child.
• Court: Court of Appeals of New Mexico

114 P.3d 367

137 N.M. 687

STATE of New Mexico ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. SHAWNA C., Respondent-Appellant, and In the Matter of Lakota C., a Child.

No. 24625.

Court of Appeals of New Mexico.

April 20, 2005.

Rebecca J. Liggett, Children's Court Attorney, N.M. CYFD, Santa Fe, for Appellee.

Nancy L. Simmons, The Law Offices of Nancy L. Simmons, P.C., Albuquerque, for Appellant.

OPINION

FRY, J.

{1} Both Shawna C. (Mother) and Benjamin O. (Father) appeal the district court's adjudication that each parent abused and neglected their infant daughter (Child). We combined the appeals due to the shared record and related issues and in order to resolve Child's status in one opinion. We conclude that the district court properly could have determined that clear and convincing evidence showed Mother neglected Child. We conclude that there was insufficient support for a finding of abuse or neglect as to Father. Finally, we hold that the abuse and neglect statute is not so vague as to violate substantive due process protections under the United States Constitution.

BACKGROUND

{2} We requested that the parties brief the issue of whether an abuse and neglect adjudication is a final, appealable order that would provide this Court with jurisdiction to hear such an appeal. Recently, we confirmed that this Court does have jurisdiction to hear appeals of abuse and neglect adjudications because such determinations are sufficiently final to justify our review. State ex rel. Children, Youth & Families Dep't v. Frank G., 2005-NMCA-026, ¶ 39, 137 N.M. 137, 108 P.3d 543, cert. granted, Sup.Ct. No. 29,042 [Vol. 44, No. 11 SBB 21, 2005 WL 937479 (Feb. 21, 2005)]. While we review the initial determination of abuse and neglect, the district court retains continuing jurisdiction for the required periodic reviews of the child's custody. Id. ¶ 42; see NMSA 1978, § 32A-4-25.1 (1997) (providing that a permanency hearing shall take place within six months of the initial review with subsequent hearings to be held every three months as needed). Therefore, we have jurisdiction to consider both Mother's and Father's appeals as long as this appeal is not made moot by further actions of the district court.

{3} The Children, Youth and Families Department (CYFD) initiated the present action by filing a petition alleging abuse and neglect and an affidavit for an ex parte custody order. The following basic facts are set out in CYFD's abuse and neglect petition, CYFD's affidavit for custody, CYFD's pre-dispositional study, and testimony at the adjudication hearing held in late 2003. Mother and Father are not married, do not live together, and by Child's birth were no longer in an ongoing relationship. Child was born at a hospital in early 2003. The day after Child's birth, the hospital staff notified CYFD of concerns for Child's safety due to heated arguments between Mother and Father, Mother's odd behavior and apparent inability to care for Child, and Mother's revelation that several of her prior children had been removed from her involuntarily. A CYFD social worker responded but opted not to file an abuse and neglect petition and released Child to Father, pending a mental health evaluation of Mother.

{4} When Child was one month old, Mother apparently contested custody before the domestic relations court. The domestic relations court gave legal custody to Child's paternal grandmother (Grandmother), concluding that Father was not a suitable caretaker based in part on the court clinician's view that he lacked empathy and parenting ability and had a criminal record. That court reportedly ordered that Grandmother take drug tests and not leave Child unattended with Father, and that both Mother and Father attend a consultation at the Court Clinic.

{5} Child then lived with Grandmother and Father from April 2003 to August 2003, during which time no reports of abuse or neglect were received by CYFD; Child attended day care and was being seen by a pediatrician during this time. After a home visit by CYFD to Grandmother's home, the social worker reported that the "house was suitable" for Child. During these four months, Mother was not living with Child and was preparing to move out of New Mexico.

{6} Grandmother tested positive in August 2003 for use of controlled substances and, although the details are not clear from the record, the matter again came before the domestic relations court. That court determined that Child should be placed in protective custody and initiated an emergency referral to CYFD. Child has been in foster care since that time, with visitation provided for both parents. Additional facts relating to Mother and Father are set out below in connection with analysis of the adjudication of each parent.

ANALYSIS

Sufficiency of the Evidence to Support Adjudication

{7} Both parents challenge the sufficiency of the evidence underlying the district court's adjudication that they abused or neglected Child. To meet the standard of proof in an abuse or neglect proceeding, the fact finder must be presented with clear and convincing evidence that the child was abused or neglected. NMSA 1978 § 32A-4-20(H) (1999); In re Melissa G., 2001-NMCA-071, ¶ 12, 130 N.M. 781, 32 P.3d 790. "For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true." In re Termination of Parental Rights of Eventyr J., 120 N.M. 463, 466, 902 P.2d 1066, 1069 (Ct.App.1995) (internal quotation marks and citation omitted). Our standard of review "is a narrow one" and we may not re-weigh the evidence. Id. "Our standard of review is therefore whether, viewing the evidence in the light most favorable to the prevailing party, the fact finder could properly determine that the clear and convincing evidence standard was met." Id. Although the record in this appeal contains descriptions of events taking place after the adjudication of abuse and neglect, such as permanency plan hearings, our review is limited to a determination of whether the district court could have found that the parents abused or neglected Child based upon the evidence before it. We therefore disregard any of the evidence contained in the record that arose after the adjudication of abuse and neglect.

{8} In adjudicating Child as abused or neglected at the hands of both parents, the court found that three statutory definitions of abuse or neglect were shown by clear and convincing evidence: NMSA 1978, § 32A-4-2(B)(1) (1999) (stating that "[an] `abused child' [is one] ... who is at risk of suffering serious harm because of the action or inaction of the child's parent" (internal quotation marks omitted)); Section 32A-4-2(E)(2) (stating that "[a] `neglected child' [is one] who is without proper parental care and control or subsistence, education, medical or other care or control necessary for the child's well being because of the faults or habits of the child's parent" (internal quotation marks omitted)); and Section 32A-4-2(E)(4) (stating that "[a] neglected child [is one] whose parent ... is unable to discharge his responsibilities to and for the child because of ... mental disorder or incapacity"). We summarize the evidence before the district court as to each parent and then assess the findings made by the district court in light of that evidence.

Mother

{9} In its petition alleging abuse and neglect and its affidavit for custody, CYFD stated that its investigation showed that "[M]other has serious mental health problems to the extent that the staff at the hospital ... did not believe that ... [M]other could appropriately respond to the needs of the baby," and that Mother "continues to have serious mental health issues and is unstable." The petition recounted the fights at the hospital and Mother's departure from New Mexico to Missouri. The affidavit detailed Mother's "extensive criminal history and mental health concerns" as the reason why the domestic relations court decided not to place Child with Mother. CYFD's investigative social worker reported that in his interview with Mother, she was visibly upset, discussed moving away, and disclosed that several of her older children had been taken away from her, but that she "could not give specifics" about those instances. Mother later stated that five of her older children had been removed from her involuntarily. The social worker reported that Mother refused to meet with a therapist at the hospital, as requested by the staff, that she inappropriately entered other patients' rooms, and that the hospital staff believed Child would be in danger if left with Mother. CYFD concluded that Mother's mental health history would endanger Child. Finally, the petition recounted the domestic relations hearing at which the guardian ad litem (GAL) and court clinician recommended that Child be placed with CYFD.

{10} CYFD ordered a psychological evaluation of Mother, particularly to assess any impact of her mental health on her ability to parent. The psychologist met with Mother in one session to evaluate her by means of a diagnostic interview and selected tests, but he did not observe Mother interacting with Child. The psychologist testified at the adjudication hearing that due to Mother's limitations, he was not able to administer some of the test instruments, which require a sixth-grade reading level. He testified that Mother functions at the "extremely low range of intellectual functioning" and had "serious risk factors" in terms of "overall cognitive and neurological functioning." The psychologist related Mother's IQ scores as 55 for verbal, 62 for performance, and 55 for post-scale IQ. He testified that such scores would not necessarily render a person generally, nor Mother in particular, incompetent to parent, but he would have "reservations" about such a...