STATE EX REL. CYFD v. Anne McD.

• Decision Date: 15 February 2000
• Docket Number: No. 19449.,19449.
• Citation: 128 N.M. 618,995 P.2d 1060
• Parties: STATE of New Mexico, ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. ANNE McD., f/k/a Anne L., Respondent-Appellant. In the Matter of Megan L., a child.
• Court: Court of Appeals of New Mexico

995 P.2d 1060

128 N.M. 618

STATE of New Mexico, ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. ANNE McD., f/k/a Anne L., Respondent-Appellant.

In the Matter of Megan L., a child.

No. 19449.

Court of Appeals of New Mexico.

February 15, 2000.

Angela L. Adams, Chief Children's Court Attorney, Roy E. Stephenson, Children's Court Attorney, Santa Fe, for Appellee.

Jane Bloom Yohalem, Santa Fe, for Appellant.

OPINION

ARMIJO, Judge.

{1} Upon a motion filed by the Children, Youth and Families Department pursuant to NMSA 1978, §§ 32A-4-28 and 29 (1997), the parent-child relationship was terminated between Anne L. (Mother) and Megan L. (Child), her daughter born on June 22, 1985. Mother presents two issues for consideration. First, she contends that her procedural due process rights were violated when the Children's Court allowed six out of seven of the Children, Youth and Families Department's (CYFD, or the Department) witnesses to appear by telephone. The second issue is whether the motion to terminate parental rights should have been dismissed because the trial was not held within the time prescribed by NMSA 1978, § 32A-4-29(H) (1997). Determining there were no violations of time requirements or Mother's procedural rights to due process and further determining that the judgment terminating her parental rights is supported by clear and convincing evidence, we affirm the judgment of the Children's Court.

FACTUAL AND PROCEDURAL BACKGROUND

I. THE UNDERLYING NEGLECT/ABUSE PROCEEDING

{2} On August 28, 1995, CYFD received a referral that Child had been sexually abused by her stepfather. CYFD took emergency custody of Child on August 30, 1995. On September 5, 1995, CYFD filed a petition therein alleging that Child had been neglected and/or abused by Mother and stepfather. An adjudicatory hearing was scheduled for December 8, 1995. On that date, Mother and her stepfather waived their respective rights to a trial and advised the court that they would not contest the allegations of the petition. Mother admitted that Child had been subjected to sexual abuse by the stepfather. On January 18, 1996, the Children's Court formally entered judgment adjudicating Child as abused. The Court found that Mother was not aware that the sexual abuse was occurring. Also, on December 8, 1995, a dispositional hearing was held, and on February 19, 1996, the Children's Court formally entered its dispositional order.

{3} The following treatment plan was adopted by the court as a part of its disposition: (1) Child was to remain in the custody of CYFD; (2) Child was not to be returned to an environment that included the stepfather until he completed sex offender treatment and until Child's therapist and social worker gave approval; (3) Mother was to participate in individual therapy to address issues deemed appropriate by her therapist. Therapy was to be provided by a therapist skilled in sexual abuse issues and approved by CYFD; (4) Child was to be referred to treatment foster care; (5) Mother was to participate in family therapy with Child only as deemed appropriate by the treatment team; (6) any visits between Mother and Child were to be supervised and at the discretion of CYFD; and (7) Child was to have no physical or verbal contact with her stepfather.

Mother's Compliance with Treatment Plan

{4} Doctor Marc Caplan performed the initial psychological evaluation of Mother in October 1995. At that time, she advised him that she did not need therapy. Doctor Caplan noted that Mother was more concerned with her relationship with her husband (the abuser) than with Child.

{5} On October 27, 1995, Child was admitted to the acute care unit of Children's Psychiatric Hospital in Albuquerque. Her behavior included the following: self-injurious behavior; sexually-inappropriate behavior; suicidal ideation; physical aggression; oppositional behavior; and hording of food and eating out of the trash. Child remained in the acute care unit of Children's Psychiatric Hospital until December 11, 1995, when she was transferred to a residential unit within the hospital. She remained in a residential treatment unit until April 12, 1996, when she was discharged into a therapeutic foster care setting.

{6} While Child was in Children's Psychiatric Hospital, Mother participated in weekly visits and family therapy. During Mother's first visit, Child became out of control and Mother had to be escorted off the premises. During other visits, Mother told Child that she should not talk about the sexual abuse issues and was generally negative toward therapy, advising Child it was a family issue that should be dealt with within the family.

{7} In April 1996, after Child's discharge from Children's Psychiatric Hospital and placement in therapeutic foster care, Mother was required to wait sixty days before any contact with Child. Two weeks after Child's discharge, Mother announced that she was moving to the Wyoming-Montana border because she obtained employment near there. She directed that any contact be arranged through her father in Alamogordo, New Mexico, CYFD advised Mother of Child's mailing address and stated that funds were available for visitation if she requested.

{8} In December 1996, Melissa Lippold, treatment coordinator for Namaste, the Child's therapeutic foster care program, met with Mother after Mother expressed an interest in establishing contact with her daughter. Mother was presented with a letter from Child, stating that Child did not wish to see her. Among the reasons cited were Mother's refusal to begin therapy, her continued relationship with the stepfather, and her refusal to talk to Child about the abuse that Child had endured.

{9} In December 1996, Mother entered into therapy with a CYFD-approved therapist to address her own issues regarding abuse as well as the current situation. According to Mother's therapist, progress was slowly being made. In June and July 1997, there were two supervised visits between Mother and Child. During the visits, Mother and Child became very secretive. Thereafter, Child refused to talk about issues with the therapist, stating that it was "private stuff." Child's foster mother reported that Child's behavior worsened, becoming controlling and angry.

II. THE TERMINATION PROCEEDING

{10} A motion to terminate parental rights was filed on July 15, 1997, some two years after the initial placement of Child into the Department's custody. The motion alleged that Child was abused and that the causes and conditions of abuse were unlikely to change in the foreseeable future despite reasonable efforts by CYFD to assist Mother in overcoming the conditions which led to the abuse. Trial on the merits was scheduled to be held at the Grant County Courthouse in Silver City, New Mexico. Silver City is located in the extreme southwest part of the state. CYFD sought to elicit trial testimony of six of its seven witnesses, telephonically, pursuant to NMSA 1978, § 32A-1-18(E) (1995). These witnesses resided or were located in northern New Mexico: Dolores Herr, Child's current therapeutic foster mother who resided in Questa; Pamela Naugle, Child's first therapeutic foster mother who resided in Los Alamos; Melissa Lippold, Child's Namaste treatment coordinator who was based in Espanola; Sharon Lewis Chacon, Child's therapist who was also based in Espanola; and Nancv Futran, a clinical social worker who oversaw Child's treatment while she was receiving in-patient treatment at Children's Psychiatric Hospital based in Albuquerque. Doctor Marc Caplan, who performed the initial psychological evaluation of Mother in 1995, was currently based in Las Cruces. The one witness CYFD was to have physically available in the courtroom was Susan Mills, the social worker in charge of the case. Mother did not subpoena any of these witnesses.

{11} Mother objected to the proposed telephonic testimony. At the hearing on the objections held on November 25, 1997, the Department argued that it would be "convenient" for its witnesses if they could appear by telephone. After considering Mother's objections, the Children's Court ruled that although telephone testimony was not the ideal means of receiving testimony at the termination trial, allowing the testimony was not inconsistent with Mother's rights under the circumstances because Mother had not demonstrated any prejudice. The court did, however, reserve the right to revisit and reconsider the matter as the trial proceeded. Mother did not raise the matter further during the course of the trial.

{12} At that same hearing, Mother moved to dismiss the petition, contending that NMSA 1978, § 32A-4-29(H) (1997) required that the hearing on the motion to terminate parental rights be held between thirty and sixty days after service of the motion on the interested parties, and that the requirement was violated. She requested that the motion to terminate be dismissed without prejudice. She also argued that the trial should be conducted in a forum closer to her place of residence, that of Child, and the majority of witnesses. The trial court denied the motion, finding that the time limit contained in the statute did not apply because the abuse and neglect petition was filed prior to the effective date of the statute and further finding that if it were to dismiss the motion and force CYFD to refile, the matter could not be scheduled until late spring or mid to late summer and it would be in Child's best interest to hold the hearing as soon as possible.

DISCUSSION

{13} We note for purposes of our review that Mother does not directly challenge the sufficiency of the evidence in support of the termination of her parental rights. And, although this is therefore not an issue before us, we nonetheless elect to review the evidence presented at trial because of the specific nature of Mother's due process claims. In undertaking such a review, we are mindful of the requisite standard of proof to...