STATE EX REL. CYFD

• Citation: 132 N.M. 299,47 P.3d 859,2002 NMCA 61
• Decision Date: 21 March 2002
• Docket Number: No. 21,913.,21,913.
• Court: Court of Appeals of New Mexico
• Parties: STATE of New Mexico ex rel. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, In the Matter of Elizabeth H. a/k/a Elizabeth Kelly H., A Child, and concerning Patricia H. a/k/a Patricia K. W., Respondent-Appellant.

47 P.3d 859

132 N.M. 299

2002 NMCA 61

STATE of New Mexico ex rel. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee,

In the Matter of Elizabeth H. a/k/a Elizabeth Kelly H., A Child, and concerning Patricia H. a/k/a Patricia K. W., Respondent-Appellant.

No. 21,913.

Court of Appeals of New Mexico.

March 21, 2002.

Certiorari Denied June 6, 2002.

Angela L. Adams, Chief Children's Court Attorney, Daniel J. Pearlman, Children's Court Attorney, Santa Fe, NM, for Appellee.

Jane Bloom Yohalem, Santa Fe, NM, for Appellant. Walter M. Hart, III, Los Lunas, NM, Guardian Ad Litem.

Certiorari Denied, No. 27,504, June 6, 2002.

OPINION

BOSSON, Chief Judge.

{1} Patricia H's parental rights in her child, Elizabeth (Child), were terminated by the district court, pursuant to NMSA 1978, Section 32A-4-28(B)(2) (2001). Patricia H. (Mother) contends that the record is not sufficient to support, by clear and convincing evidence, that: (1) the Children, Youth and Families Department (CYFD) made reasonable efforts to assist her in remedying the causes of her neglect of Child, and (2) further efforts would be futile. We affirm.

BACKGROUND

{2} CYFD took custody of Child in March of 1998, when she was 4½ years old. CYFD did so at the request of Mother who stated that she was no longer able to care for Child and expressed extreme frustration with Child's "defiant" behavior. CYFD had previously received referrals related to a lack of adequate supervision in Child's home. At the time she came into CYFD custody, Child was dirty, unkempt, and hungry. Mother pled no contest to Child being without proper parental care or control necessary to her well-being, and a stipulated judgment was entered on May 27, 1998, pursuant to NMSA 1978, Section 32A-4-2(C)(2) (1997), amended by NMSA 1978, Section 32A-4-2(E)(2) (1999).

{3} At the time Child was taken into CYFD custody, Mother was experiencing serious health problems, including a thyroid disorder, which reportedly caused her to be unusually irritable. Shortly thereafter, Mother was diagnosed with breast cancer, and underwent a mastectomy in April 1998, followed by a course of radiation therapy, which was completed in July 1998. A psychological evaluation of Mother was completed in June 1998, and CYFD developed a treatment plan based on that evaluation.

{4} During the first three months that Child was in CYFD custody, CYFD arranged visits between Child and Mother, but Mother did not engage well with Child at that time. Mother had little contact with Child between June and December of 1998. In October 1998, Mother was hospitalized twice for additional surgeries related to her mastectomy, and subsequently received home-based support and case management services until February 1999.

{5} Following a permanency hearing on December 7, 1998, the court found that Mother had made some efforts to comply with treatment, but ordered that Child was to remain in CYFD custody until further order of the court. The permanency plan at that time was for Child eventually to return home with Mother. The CYFD treatment plan included goals related to improving Mother's parenting skills, and called for individual therapy for Mother, as well as work with Child's therapist. The treatment plan was incorporated by reference into the court's order.

{6} Between December 1998 and January 1999, Mother and Child were seen jointly by a therapist, Ms. Krauss, who halted this course of treatment after only five sessions. Ms. Krauss was highly unsatisfied with Mother's efforts to engage Child and felt the sessions had become detrimental to Child. Ms. Krauss believed that Mother had a schizoid personality disorder, concluded that treatment of Mother's parenting deficits would be futile, and recommended that Mother's parental rights be terminated. In February 1999, CYFD terminated Mother's visitation rights with Child, based largely on Ms. Krauss's impressions, as well as the observations of the CYFD social worker and Child's foster mother. Mother's visitation rights with Child were never reinstated thereafter.

{7} During the month following the sessions with Ms. Krauss, a CYFD social worker offered to arrange a bonding study and parenting training for Mother. Mother did not agree to these services at the time, due to CYFD's policy of forwarding previous records, including the report done by Ms. Krauss, to any new providers. Mother disagreed with the Krauss report and did not want it forwarded.

{8} In January 1999, Dr. Snyder, a Board-certified family psychologist at the Veteran's Administration who had been seeing Mother for individual therapy, offered to meet jointly with Mother and Child to work on parenting issues. Dr. Snyder suggested that the success of such treatment should be evaluated independently by another professional and not by him. He believed it could impede the development of a therapeutic relationship with Mother and Child if he were asked to testify as to whether Child should be returned to Mother. CYFD did not respond to Dr. Snyder's offer. Nonetheless, Mother pursued individual therapy with Dr. Snyder, which included work on interpersonal issues and parenting skills.

{9} After the sessions with Ms. Krauss, and Mother's failure to cooperate in the CYFD referrals for a bonding study and parenting classes, CYFD requested a second permanency hearing seeking to change the permanency plan to a termination of parental rights. Following the hearing, which began in March 1999, and continued to May 1999, the court decided not to terminate Mother's parental rights at that point because the court was not persuaded that further efforts to treat Mother would be futile. The court ordered CYFD to "make referrals as appropriate" in an effort to continue to implement the treatment plan, which called for individual therapy, parenting education, and work with Child's therapist. Child's guardian ad litem objected to any resumption of visitation with Child until it could be determined that Mother had made sufficient progress that the visits would not cause emotional harm to Child.

{10} At a status conference in July 1999, Mother asked the court to permit visitation and postpone a termination of parental rights (TPR) hearing, which had been scheduled for August 1999. The court agreed to the postponement and stated that it was "not going to order [CYFD] to cease their efforts in assisting Ms. [H]." Instead of ordering visitation, the court indicated that it would like Mother and Child to be seen together by an expert to "see how things [were] progressing."

{11} Another status conference was held in August 1999. Mother reported that her therapy with Dr. Snyder was progressing well and requested that she be allowed to arrange some form of parenting training that involved contact with Child. CYFD objected to any contact between Mother and Child because of Ms. Krauss's earlier impressions, as well as the well-founded concerns of both the foster mother and the guardian ad litem about the potential effects of such contact on Child. The court adopted CYFD's suggestion that a bonding study be conducted by a Rule 11-706 NMRA 2002 expert (Rule 706 expert) before resuming contact between Mother and Child. The court's understanding was that the Rule 706 expert would observe Mother and Child in a "controlled environment" to "see how they interact with each other." The court stressed that this evaluation should be conducted by "someone that is available to get on this as soon as possible." Mother did not object to this course of action.

{12} In October 1999, Dr. Kenney, a Rule 706 expert, was appointed to evaluate Child's needs, the potential damage of removing Child from her foster home, and Mother's ability to parent and form a bond with Child. However, Dr. Kenney's report was delayed because of an unforeseen surgery, and the report was not submitted until March 2000.

{13} In February 2000, there was a brief hearing to extend CYFD's jurisdiction. The order that issued from this hearing indicated that the Rule 706 expert's report was still pending. Although CYFD did indicate at the hearing that it would continue to refer Mother to programs as she requested, the treatment plan, which was adopted by the court's order, stated that there was "no active treatment plan" for Mother.

{14} The court conducted a termination hearing in August 2000. At the termination hearing, Dr. Kenney testified that Child meets the diagnostic criteria for reactive attachment disorder (RAD), attention deficit hyperactivity disorder (ADHD), and oppositional-defiant disorder. Because of these conditions, particularly RAD which is common in children who have been neglected, Child needs a very high level of care, supervision, and stability. Dr. Kenney testified that it could be traumatic to Child to be removed from her foster parents because she has bonded with them and has come to view them as her "psychological parents." Dr. Kenney cautioned that any change is difficult for Child because her diagnosis make her much less resilient than other children.

{15} Although Dr. Kenney met once with Mother, and also saw Child individually, he did not conduct a bonding interview with Mother and Child because of the length of time that had elapsed since Mother and Child had been in contact. Dr. Kenney felt that the results of any such bonding interview would be inconclusive.

{16} Dr. Kenney cautioned that, if the court were to order Child returned to Mother, any reintroduction should not be sudden. He emphasized the need for a carefully monitored "easing in" process, including specialized counseling. Dr. Kenney testified that he "[could] not imagine it taking less than a year" to complete a process of gradual reintroduction, including about three to six months of preparing Mother to begin visitation with Child, and then about six months of supervised visitation. We reject as inaccurate CYFD's representations to this Court, at oral argument and in its briefing,...