State of N.M. ex rel. Cyfd v. John R.

• Decision Date: 02 February 2009
• Docket Number: No. 27,880.,No. 27,985.,27,880.,27,985.
• Citation: 203 P.3d 167,2009 NMCA 025
• Parties: STATE of NEW MEXICO, ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. JOHN R., Respondent-Appellant, and Berlinda R., Respondent, and In the Matter of Sabrina R., Child.
• Court: Court of Appeals of New Mexico

203 P.3d 167

2009 NMCA 025

STATE of NEW MEXICO, ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. JOHN R., Respondent-Appellant, and Berlinda R., Respondent, and In the Matter of Sabrina R., Child.

No. 27,880.

No. 27,985.

Court of Appeals of New Mexico.

February 2, 2009.

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

Caren I. Friedman, Santa Fe, NM, for Appellant John R.

Scott M. Davidson, Albuquerque, NM, for Appellant Berlinda R.

Pat Anderson, Bosque Farms, NM, Guardian ad Litem.

OPINION

BUSTAMANTE, Judge.

{1} John R. (Father) and Berlinda R. (Mother) (collectively Parents) each appeal from the judgment of the district court terminating their parental rights to their daughter, Sabrina R. (Child). Parents' rights were terminated based on a finding that Child had been subject to abuse and neglect, the causes of which were unlikely to change in the foreseeable future.

{2} On appeal, Father asserts that the district court committed reversible error by failing to appoint separate counsel for Child when she reached age fourteen during the pendency of the termination proceeding. Mother's separate appeal asserts that (1) CYFD failed to make reasonable efforts to assist her in alleviating the causes and conditions of neglect, (2) CYFD failed to prove that Mother was unable to alleviate the causes and conditions of neglect, and (3) the termination of parental rights cannot rest only on the best interests of Child.

{3} We consolidate Parents' appeals and conclude that Father has standing to assert the right-to-counsel issue and that the district court committed reversible error by not appointing separate counsel for Child when she reached the age of fourteen. Furthermore, we reaffirm our adherence to our statutory mandate to give primary consideration to the best interests of the child in a proceeding to terminate parental rights. Having found reversible error, we do not address any of Parents' evidentiary arguments.

BACKGROUND

{4} This termination of parental rights (TPR) case deals with the alleged inability of two developmentally disabled persons to properly care for their physically and mentally disabled child. CYFD took Child into custody on October 14, 2005, based on a report that Child was being physically abused/neglected by Parents. The basis for the abuse/neglect allegations was that Child had significant medical needs not being met at home.

{5} Child was twelve years of age when she was taken into CYFD's care and was suffering from complex medical problems and interrelated psycho-social issues. Specifically, Child was suffering from hypothyroidism, obtrusive sleep apnea, enuresis, encopresis, mental retardation, ADHD, a necrotic hip, and morbid obesity. Child was virtually immobile because her weight made it difficult for her to walk, even with a walker, and her wheelchair was broken. Child was also incontinent, her Parents were not using Child's C-Pap machine to treat her sleep apnea, and they were not regularly administering her thyroid medication. Child's untreated health problems placed her at risk for brain damage or mortality unless drastic measures were taken.

{6} Based on the foregoing facts, the district court found that Child was neglected and that Child's safety and welfare could not be ensured if she were returned to Parents. Custody of Child was ordered to remain with CYFD for up to two years while Parents continued with an ongoing treatment plan aimed at reunifying the family. As part of the treatment plan, Parents were ordered to participate in parenting classes, relationship therapy, weekly semi-supervised visits with Child, nutritional training, and in all of Child's medical and therapeutic appointments.

{7} As of March 2006, Parents were compliant with their treatment plan and made "great progress" toward learning new parenting and nutritional skills. Child was also progressing under her treatment plan, having lost 120 pounds while in foster care. She was continent, receiving proper medical care, and able to walk without using a walker.

{8} As a result of Parents' compliance and cooperation, in May 2006 CYFD arranged for Parents to take Child for a trial home visit. Upon returning home, Child's medical condition quickly deteriorated. Child began to gain weight at a rate of two to three pounds per week, her C-Pap machine was not being used to treat her sleep apnea, and she again became incontinent. She also missed health appointments, stopped taking her thyroid medication, began having temper tantrums, and refused to exercise or follow her diet plan.

{9} Several factors contributed to Child's regression and diminished health and well-being. While Child was in foster care, Parents' relationship had deteriorated and they moved to separate residences. Mother went to live with a new female partner whom Child disliked, and Father moved in with his brother. As a result, Child was going back and forth between Parents. Incidents of domestic violence also took place between Mother, Father, and Child's older brother. These conditions led to a recommendation that Child be put back in foster care. Child was once again removed from Parents in September 2006 and placed back in treatment foster care.

{10} Upon returning to foster care, Child once again began making strong progress. She began losing weight again, was more continent, and was getting proper nutrition and medical treatment. At first, CYFD's permanency plan remained to continue working toward reunification of the family while keeping Child in temporary foster care. But by January 2007, CYFD changed its recommendation from reunification to "TPR/Adoption," citing Parents' continued inability to appropriately care for Child's physical, medical, and emotional needs.

{11} A TPR motion was filed in January 2007, a two day TPR hearing took place during June, and a final order terminating parental rights was filed on July 2, 2007. In March, approximately three months before the TPR hearing, Child turned fourteen years old. During the proceeding, Father and Mother were each represented by separate counsel, and Child was represented by a guardian ad litem (GAL), but at no point did she have her own attorney.

{12} At the commencement of the second day of the TPR hearing, Child's GAL pointed out that Child had the right to representation by separate counsel upon reaching age fourteen. The GAL summarized the relevant statute as follows: "[w]hen a child reaches [fourteen] years of age, a child's guardian ad litem shall continue as the child's attorney, provided that the [c]ourt shall appoint a different attorney for the child if the child requests a different attorney or the guardian ad litem requests to be removed." (internal quotation marks omitted). The GAL then informed the court that Child was already fourteen years old and that she didn't feel that she could do the job of both GAL and counsel, stating "I don't feel I can be her attorney, due to her ... mental capacity and ... all my past work as the GAL."

{13} Alerted to the potential issue posed by Child's having reached fourteen before the hearing, the district court decided to meet with Child before making any determination as to what should be done. Upon meeting with Child and her GAL, the district court recognized Child's position as desiring reunification with Parents and also recognized that such a position was inconsistent with the recommendation of the GAL. But the district court noted Child's "extreme immaturity and developmental delays," explaining its concern that Child's maturity level was not that of an average fourteen-year-old, and that the TPR motion was filed before Child's fourteenth birthday. The district court reasoned that it would be inappropriate to appoint separate counsel because the GAL had been on the case since its inception, and it would be difficult for anyone else to come up to speed in the case.

{14} Ultimately, the district court decided against appointing separate counsel for Child. The court's finding on the issue was as follows: "The [c]ourt has also considered the child's expressed opinion on reunification, notes the fact that the child turned fourteen during the pendency of this case and, notwithstanding those facts, finds that it is not appropriate to appoint an attorney for the child."

DISCUSSION

Father's Standing

{15} As a preliminary matter, we address CYFD's assertion that Father lacks standing to argue the right-to-counsel issue. Whether a party has standing to sue is a question of law, which we review de novo. See Forest Guardians v. Powell, 2001-NMCA-028, ¶ 5, 130 N.M. 368, 24 P.3d 803.

{16} CYFD argues that because the right to counsel does not belong to Father, he has suffered no injury in fact, and therefore lacks standing to argue the right-to-counsel issue. In support of its assertion, CYFD cites Rio Grande Kennel Club v. City of Albuquerque, 2008-NMCA-093, 144 N.M. 636, 190 P.3d 1131, for the standing requirement of "an injury in fact."

{17} CYFD is correct in its assertion that the right to counsel at issue here belongs to Child and not to Father. However, we do not agree with CYFD's conclusion that Father has not been injured in fact. An "injury in fact" is "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Forest Guardians, 2001-NMCA-028, ¶ 24, 130 N.M. 368, 24 P.3d 803 (internal quotation marks and citations omitted). A litigant need not suffer the actual effects of the challenged action, but need only show that there was a real risk of injury. Rio Grande Kennel Club, 2008-NMCA-093, ¶ 11, 144 N.M. 636, 190 P.3d 1131.

{18} Here, Father has a sufficient injury and a sufficiently concrete interest in the outcome of this matter to satisfy the injury in fact requirement. Father has a legally protected interest in his rights as...