STATE EX REL. CYFD v. MARIA C.

Decision Date30 April 2004
Docket NumberNo. 23,789.,23,789.
Citation94 P.3d 796,136 N.M. 53,2004 NMCA 83
PartiesSTATE of New Mexico, ex rel., CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. MARIA C., Respondent-Appellant, and In the Matter of Rudolfo L., Roberto C., Alvaro C., Cassandra L., and Anthony M., Children.
CourtCourt of Appeals of New Mexico

Ernest O. Pacheco, Santa Fe, for Petitioner.

Jane Bloom Yohalem, Santa Fe, for Respondent.

Caroline Bass, Santa Fe, Guardian ad Litem.

OPINION

BUSTAMANTE, J.

{1} This is an appeal from a decision by the district court to terminate the parental rights of Maria C. (Mother), pursuant to NMSA 1978, § 32A-4-28(B)(2) (2001). Mother argues that the order should be set aside as a matter of due process because she was denied any opportunity to be present at the two permanency hearings that preceded the final termination hearing (TPR hearing). We address two issues: (1) whether the initial and subsequent permanency hearings merit due process protection; and (2) if so, whether the procedures afforded Mother in the neglect and abuse proceedings denied her due process.

FACTS AND PROCEDURES

{2} Maria C. is the natural mother of Roberto C., Alvaro C., Cassandra L., and Anthony M. On August 25, 2000, Mother and the biological father (Father) of Anthony M. were arrested at their home by federal authorities on charges of drug possession and drug trafficking. The children, who ranged in age from nine months to eleven years, were taken into the custody of the Children, Youth and Families Department (CYFD). During the entire abuse and neglect proceedings, Mother and Father were incarcerated as federal prisoners. Although the children are United States citizens, both parents are Mexican Nationals.

{3} Following the arrest, CYFD filed petitions against Mother and Father alleging they had abused and neglected their children. At the custody hearing, the district court found both parents were unable to care for the children due to their incarceration. The district court ordered CYFD to retain legal custody, arrange for regular visitation, explore relative placement, and conduct a psychosocial evaluation of Mother and a paternity test on Father who denied being the natural father of Anthony M.

{4} At the adjudicatory hearing on October 16, 2000, Mother was represented by counsel and appeared by telephone, with the assistance of an interpreter. Mother pleaded no contest to the allegation of neglect based on Mother's incarceration, under NMSA 1978, Section 32A-4-2(E)(4) (1999), and on concerns about substance abuse. The district court subsequently entered a judgment, finding that the children were neglected and ordering that legal custody remain with CYFD. A disposition order was entered on December 7, 2000; the district court adopted the findings of the predisposition study and treatment plan, but withdrew its previous order allowing Mother to have contact with the children, apparently in response to their wishes.

{5} On February 27, 2001, after the children were placed in relative foster care in Santa Fe, venue was transferred to the First Judicial District Court, and Mother was transferred from the Sandoval County Detention Center to the Santa Fe County Detention Center. Dennis Quintana was appointed as Mother's new counsel on April 30. The first judicial review hearing was held on July 24, 2001. Although Quintana filed an order to transport Mother and appeared on her behalf, Mother was not present at the hearing. The permanency plan for the children through this time was reunification.

{6} The first permanency hearing was held on August 21, 2001. Once again, Mother was not present, and although Quintana was present, he never spoke on her behalf. Instead, Father's counsel, Art Michael, represented that he was speaking on behalf of both parents. Michael explained that Quintana had filed a transport order, but because both parents were in federal prison, they needed a writ of habeas corpus for their release to the hearing. He also stated that the social worker had provided him information to contact the federal marshal, and indicated that he would prepare the necessary paperwork so they could attend the next hearing. CYFD informed the court that it intended to change the permanency plan to adoption, since both parents were expected to serve long sentences in federal prison, and CYFD wanted them present for relinquishment counseling. CYFD also alerted the court that telephonic appearances might be necessary if the parents were moved to federal prison. A continuance was granted and the hearing was reset for September 18, 2001, to afford counsel more time to arrange for transporting the parents.

{7} Despite this accommodation, counsel failed to obtain a writ, and as a result, neither parent appeared at the September permanency hearing either. Speaking on behalf of both parents, Michael stated that he talked to the marshal, obtained the writs and instructions on how to prepare them, and that he understood the steps he needed to take to accomplish the task, but he did not do it. The court suggested that the parents could appear by telephone, but Michael rejected this alternative because "they want to be here," and he assured the court that he would get them transported; "I've ... just got to get the stuff done.... So there is no excuse not to bring him here." Without admonishing counsel or addressing the issue, the court reset the hearing for November 18, 2001. Although this Court was not provided a transcript of the November hearing, there is no indication that the situation improved: no writ was filed, counsel were not admonished, and the hearing was continued.

{8} Even by the fourth setting on January 8, 2002, nearly nine months after Quintana was appointed, Mother was still not present. In fact, counsel admitted he had never spoken to her and did not even know where she was incarcerated. Nor was Father present. Michael advised the court that Father had recently been sentenced to thirty-two months, had served roughly sixteen months of that sentence, and was incarcerated at La Tuna federal prison in Anthony, New Mexico-Texas. Astoundingly, even though he admitted that he had never talked to her federal defense attorney, Michael also represented that Mother pleaded to the same charges, and, while she was not yet sentenced, it was her second conviction, so she would be serving "a pretty good sentence." The record indicates that Mother actually pleaded guilty on June 22, 2002, and was later sentenced to five years in federal prison, followed by four years probation, with credit for time served. Father was actually sentenced to thirty-seven months in federal prison.

{9} CYFD moved the district court to find that the presumption for return was rebutted due to incarceration and requested the court to change the plan to adoption, because Father had at least sixteen months to serve and Mother could get more time because she was facing a second conviction. Michael stipulated that the presumption was sufficiently rebutted, but asked that the reunification plan be continued because Father would be out in sixteen months. Quintana, who remained silent during most of the hearing, agreed with Michael's representations and made no attempt to argue on behalf of his client. Based on counsels' stipulation, the court found that the presumption was rebutted because both parents were incarcerated and changed the permanency plan to adoption; "[a]lthough 16 months is not very long in adult life, it is very long in a child's life."

{10} On March 7, 2002, CYFD filed a Motion for TPR. In the interim, a second permanency hearing was held on April 2, 2002, addressing the futility issue. Once again, counsel filed a transport order but neglected to file a writ of habeas corpus. Not surprisingly, neither parent was present. Quintana attempted to get Mother on the telephone at the hearing, but to no avail. Quintana then requested a continuance; his reason, self-evident, was that "the transport order is not adequate," and "evidently what's needed is a writ." The district court denied the continuance, and for the first time, admonished counsel for their inability to secure their clients' presence at the hearings, despite knowing for months that a writ was necessary. The district court found that Mother was unable to rebut the presumption for adoption because she was absent and that CYFD was not required to make further efforts to reunite the family. After the ruling, Quintana, who met with Mother for the first time on March 25, made an offer of evidence: Mother and the older children had exchanged letters; she had participated in several jail programs to improve her parenting skills; and she was trying to get into an early release program.

{11} A pretrial hearing was held on May 7, 2002. Quintana finally successfully obtained a writ of habeas corpus and Mother appeared at the hearing. Father appeared by telephone. The district court advised the parties of its primary concern that the children have permanency and stability in their lives. Mother informed the district court that she was not yet sentenced; she also requested visitation, submitted documentation of the several programs she had completed in jail, related that she and the children had exchanged cards and letters, and requested the district court to consider placing the baby with Father's brother. As a result, the district court reinstated written contact between Mother and the children and ordered CYFD to make an individual assessment of whether visitation was appropriate for each child and to determine whether relative placement of the baby was viable.

{12} The TPR hearing for Mother was held on July 22, 24, and August 20, 2002. Mother was present and testified extensively over a three day period. CYFD called two witnesses, both social workers who were assigned to the case. The district court issued its decision, along with findings of fact and conclusions of law on September...

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