State ex rel. Cyfd v. Lance K.

• Decision Date: 11 February 2009
• Docket Number: No. 26,632.,26,632.
• Citation: 209 P.3d 778,2009 NMCA 054
• Parties: STATE of New Mexico ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. LANCE K., Respondent-Appellant. and In the Matter of Emily K., Ariel K., and Zachary K., Children.
• Court: Court of Appeals of New Mexico

209 P.3d 778

2009 NMCA 054

STATE of New Mexico ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. LANCE K., Respondent-Appellant. and In the Matter of Emily K., Ariel K., and Zachary K., Children.

No. 26,632.

Court of Appeals of New Mexico.

February 11, 2009.

Certiorari Denied, No. 31,591, April 22, 2009.

Children, Youth & Families Department, Simon Romo, Chief Children's Court Attorney, Rebecca J. Liggett, Children's Court Attorney, Santa Fe, NM, for Appellee.

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

Karen Cantrell, Placitas, NM, Guardian Ad Litem.

OPINION

FRY, Chief Judge.

{1} The opinion filed in this case on December 18, 2008, is withdrawn, and the following opinion is filed in its place.

{2} Father appeals from a judgment terminating his parental rights to his children Ariel and Zachary. He also appeals from the trial court's order requiring him to submit to a paternity test with respect to a third child, Emily, and, upon DNA testing establishing that he is not Emily's biological father, the order denying him continued visitation with Emily. We reverse the termination of Father's parental rights and affirm the orders related to Emily.

BACKGROUND

{3} The Children, Youth & Families Department (CYFD) filed a petition alleging abuse and neglect on April 2, 2002, and alleged that the family had been the subject of several prior referrals, that the family had been unable to eradicate an ongoing problem daughters Emily and Ariel had with lice, that Emily had serious mental health needs that the parents had been unable to address, and that both parents had substance abuse problems. The affidavit filed with the petition included details regarding the prior referrals. When the children were taken into custody, Emily was eight years old, Ariel was six, and Zachary was ten months old.

{4} Father pleaded no contest to the allegations of abuse and neglect in November 2002. Also in November 2002, the parents were divorced. CYFD's report at the time, which the trial court incorporated into its dispositional judgment, alleged that Emily disclosed that a friend of Father had digitally penetrated her, that she had numerous sexual encounters with boys, that Father had showed her an X-rated movie, and that she had overheard Mother having sex with a boyfriend. The report further alleged that Emily had been exhibiting increased aggression toward her siblings and increased sexual behavior.

{5} The report also maintained that Father would not "take any responsibility or acknowledge that there is a problem with the decisions he has made concerning his children," and alleged that Father had "compromised the best interest of his children" by distributing leaflets at Ariel's school apparently accusing CYFD of wrongfully holding the children in custody. The treatment plan required Father to provide CYFD with a list of relatives who would be willing to care for the children, pay $50 per month in child support, attend AA meetings three times per week, participate in an evaluation for psychiatric medication, participate in counseling, submit to a paternity test, have weekly visits with the children, participate in a domestic violence assessment, complete a drug/alcohol assessment, participate in the children's therapy sessions as recommended by the therapists, participate in parenting classes, and submit to random urinalyses (UAs).

{6} By April 2003, the trial court approved changing the permanency plan from reunification to permanent guardianship with the children's maternal aunt. Father had complied with his treatment plan's requirements for counseling, visitation, psychological evaluations, AA attendance, clean UAs, and parenting classes, but his counselor reported that Father "is not committed to changing, [and] he does not engage in treatment sessions." On several occasions when Father and Mother were supposed to bring the children's lunch to a visitation session, the parents brought junk food. In addition, Father had apparently told Emily that she should not trust anyone at CYFD and that there were cameras set up in the visitation rooms. He also told Ariel not to tell anyone that she had lice and implied that having lice was her fault.

{7} Mother ultimately relinquished her parental rights to the children in May 2003. At the next permanency hearing in May 2003, the court approved changing the permanency plan to termination of parental rights and adoption. CYFD reported that Father had not had any positive UAs since the last hearing, he had paid $300 in child support, attended counseling sessions, successfully completed the required parenting classes, had a domestic violence assessment, and attended all visitation sessions. However, the counseling service "continue[d] to report that [Father] has no desire to change" and that "[i]t is difficult for [Father] to make substantial progress when he is unwilling to even admit that he might have some areas of his life that need `work'." Emily reported that Father's friend had sexually assaulted her and that Father knew about it but allowed it. CYFD was going to investigate the allegations.

{8} CYFD filed a motion to terminate Father's parental rights in July 2003. As grounds for termination, the petition alleged that the children had been neglected or abused and that "the conditions and causes of the neglect or abuse are unlikely to change in the foreseeable future despite reasonable efforts by [CYFD]." These allegations constitute a claim under NMSA 1978, § 32A-4-28(B)(2) (2005). The petition then reviewed the progress of the case and repeated the allegations from the original April 2002 petition for custody regarding the girls' lice and Emily's mental health issues, Father's failure to participate in previous services provided to Mother, Father's alcohol and marijuana abuse problem, and Father's distribution of fliers at the children's school. At about the same time, the parties stipulated to a paternity test to determine the identity of Emily's father. The test revealed that Emily's biological father was someone other than Father, and her biological father relinquished his parental rights to Emily.

{9} At the next permanency hearing in November 2003, the court adopted CYFD's report, which stated that Father had made three child support payments, provided proof of his attendance at AA meetings, attended all visitation sessions, completed the victims' group for domestic violence, underwent a substance abuse assessment, and participated in a neuropsychological evaluation. However, the report noted that it had not yet received a report on Father's medication evaluation, that Father gave hard candy to Zachary despite being told not to, and that Zachary choked on it. The report reiterated comments from the May 2003 report that the therapist had reported that Father was attending counseling but not engaging and that Father had told the girls not to report that they had lice.

{10} In February 2004, Father filed a motion to re-establish visitation with Emily. The trial court first ruled that Father does not have a liberty interest in a relationship with Emily because he is not Emily's biological father. However, the court ruled that Father would be allowed to prove that it would be in Emily's best interest to have a relationship with him. The trial court conducted thirteen hearings on the issue from December 2004 to December 2005.

{11} Meanwhile, CYFD filed an amended motion for termination of Father's parental rights, which added allegations that, if true, would establish that Father had presumptively abandoned the children in accordance with Section 32A-4-28(B)(3).

{12} Following the permanency hearing in November 2004, the special master found in his order that Father had not paid child support since October 2003, he was bringing high-sugar snacks to visits with the children, he had been providing the required UAs, and he had consistently visited the children. CYFD's report, which was incorporated into the order, stated that Father had provided all UAs, which were negative, that Father was attending psychotherapy sessions, and that his therapist reported that Father was "doing very well." The therapist further reported that Father "is able to recognize that he has made some poor choices regarding his personal life that have affected his children."

{13} The final permanency hearing orders from May 2005 and December 2005 contained similar findings. The May order found that Father attended AA meetings at least once a week and was approaching nine months of sobriety and that Father attended all visitation sessions, provided clean UAs, and participated in psychotherapy. The December order stated that CYFD had not received proof of Father's attendance at AA meetings in September and October and that Father had missed a few UAs. In both the May and December orders, the only negative findings regarding Father related to Father's refusal to accept responsibility for CYFD's having to take the children into custody in the first place. Also in December 2005, the trial court denied Father's motion for contact with Emily.

{14} The trial court held seven hearings on the motion for termination of parental rights from December 2005 through January 2006. On February 28, 2006, nearly four years after the children were taken into custody, the court entered its judgment finding that "[t]here is clear and convincing evidence that [Father's] parental rights to and of Ariel and Zachary ... should be terminated." The court did not file findings of fact and conclusions of law on the issue of termination. This appeal followed.

DISCUSSION

{15} Father makes four arguments on appeal, contending that: (1) there was not clear and convincing evidence to support a determination that the causes and conditions of neglect were unlikely to change in the foreseeable future; (2) the trial court abused its discretion when it applied...