State of N.M., ex rel. Cyfd v. Brandy S.

• Decision Date: 24 August 2007
• Docket Number: No. 26,814.,26,814.
• Citation: 168 P.3d 1129,2007 NMCA 135
• Parties: STATE of New Mexico ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. BRANDY S., Respondent-Appellant, and Ramon L., Respondent, and In the Matter of Nicholas S. and Cipriana L., Children.
• Court: Court of Appeals of New Mexico

168 P.3d 1129

2007 NMCA 135

STATE of New Mexico ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. BRANDY S., Respondent-Appellant, and Ramon L., Respondent, and In the Matter of Nicholas S. and Cipriana L., Children.

No. 26,814.

Court of Appeals of New Mexico.

August 24, 2007.

New Mexico Children, Youth & Families Department, Daniel J. Pearlman, Santa Fe, NM, for Appellee.

Jane B. Yohalem, Santa Fe, NM, for Appellant.

Pittman Law Firm, P.C., Judy A. Pittman, Roswell, NM, Guardian ad Litem.

OPINION

BUSTAMANTE, Judge.

{1} Brandy S. (Mother) appeals from the judgment of the district court terminating her parental rights as to her children, Nicholas S. (Son) and Cipriana L. (Daughter) (collectively, Children). At the close of the termination of parental rights (TPR) hearing, the district court took judicial notice of the case file, apparently in its entirety, which encompassed information from prior judicial review and permanency hearings, as well as the pleadings in the case. Mother presents two issues on appeal: (1) whether the district court relied on matters not properly in evidence at the TPR hearing in violation of her due process rights, and (2) whether the district court's consideration of evidence outside of the record constitutes structural error requiring automatic reversal. Although we disapprove of the practice of taking judicial notice of the entire case file in TPR proceedings especially following the close of evidence, we conclude that the record in this case does not support the basic premise of Mother's claims, i.e., that the district court actually relied on material facts that were not independently proved at the TPR hearing. We therefore hold that no aspect of the TPR proceedings violated Mother's due process rights or constituted structural error. Accordingly, we affirm.

BACKGROUND

{2} The New Mexico Children, Youth and Families Department (CYFD) took Son into custody on March 16, 2004, one day following his birth. Mother had been using methamphetamines during her pregnancy and Son was born addicted to methamphetamines. Mother also failed to seek care when her water broke, which resulted in Son developing an infection. On March 17, 2004, CYFD filed an abuse/neglect petition against Mother. The district court clerk issued a summons to Mother indicating that "these proceedings could ultimately result in termination of your parental rights." Mother entered a plea of no contest to the allegations in the abuse/neglect petition, acknowledging that Son was without proper parental care and supervision. The district court entered a stipulated judgment and disposition against Mother on May 13, 2004.

{3} CYFD took custody of Daughter on June 15, 2004, following Mother's arrest on domestic violence charges. Mother again pled no contest and the court entered a judgment and disposition against her with regard to Daughter on August 31, 2004. Mother did not appeal either adjudication or dispositional order. The cases were consolidated by stipulation on November 29, 2004.

{4} CYFD filed a motion to terminate Mother's parental rights regarding Children on July 19, 2005. Among the allegations set forth in the motion are: (1) Mother neglected or abused Children; (2) the district court ordered Mother to cooperate with CYFD and to comply with court-ordered treatment plans; (3) the district court held several judicial review hearings in which the court found Mother non-compliant with her treatment plan and in her efforts to maintain contact with Children; (4) on June 21, 2005, the district court concluded that any further efforts by CYFD to reunify Children with Mother would be futile and thus changed Children's permanency plan from reunification to adoption; (5) Children had lived in the home of a family wishing to adopt them since November 15, 2004; and (6) termination of Mother's parental rights would promote Children's physical, mental and emotional needs. The district court held an evidentiary hearing on the motion on March 1, 2006.

{5} In presenting its case-in-chief, CYFD called several witnesses that testified regarding Mother's compliance with her treatment plan. The first witness, Steven Bran, testified that he conducted drug screening on Mother pursuant to her treatment plan from March 29, 2004, through April 18, 2005. Mother tested positive for methamphetamines and amphetamines 26 times, tested negative 54 times, and failed to show up for testing 62 times. Mother's counsel did not challenge Mr. Bran's testimony in any respect.

{6} The district court qualified CYFD's second witness, Will Parsons, as an expert in psychological evaluations and assessments. Dr. Parsons testified that he conducted a psychological evaluation of Mother on December 1, 2004, and concluded that Mother's "major problems" were methamphetamine dependence and "a personality disorder with a number of mixed characteristics consistent with narcicisstic and borderline personality disorder." Dr. Parsons had recommended that Mother attend a long-term, residential substance abuse treatment program, and testified that a 21-day program would not be a significant benefit to her. Dr. Parsons described the symptoms of methamphetamine addiction as including restlessness, nervousness, "difficulty contacting reality" and difficulty setting goals. According to Dr. Parsons, Mother's personality disorder exacerbated the impact of her methamphetamine dependence on her ability to attend to the needs of others, especially small children. In order for Mother to be capable of properly parenting Children, she would first need to address her substance abuse problem. Next, she would need to focus on her personality issues by seeking cognitive behavioral therapy. Finally, she would need to focus on parenting issues so that she could set up a structured life in order to properly care for Children.

{7} Scott Wright, a drug and alcohol counselor for CYFD, was the next witness to testify. Dr. Wright assessed Mother for drug and alcohol dependence on March 25, 2004, and concluded that she had a high probability of having a substance dependence disorder and that she needed treatment. Dr. Wright initially recommended that Mother see him weekly for individual and group therapy. Dr. Wright also read Dr. Parsons' report and recommended long-term, inpatient therapy for Mother; Dr. Wright agreed that "21-day programs very seldom have very beneficial effects for methamphetamine use." Mother began individual visits with Dr. Wright on April 15, 2004, and continued the visits through February 21, 2005. However, Mother only attended 15 individual appointments and missed 33 others in that time frame. Over a similar time frame, Mother attended 9 group therapy sessions and missed 39 others. Dr. Wright testified that Mother would need three to six months of inpatient therapy, followed by a solid outpatient program. Mother's counsel did not cross-examine Dr. Wright.

{8} The final witness to testify regarding Mother's compliance with her treatment plan was Art Otero, a senior treatment social worker for CYFD. Mr. Otero testified that the treatment plan ordered for Mother on May 13, 2004, required her to: (1) arrange for an initial screening and assessment with Dr. Wright and follow all recommendations, (2) visit with Son at least three times a week, (3) complete the court-ordered drug screen, (4) maintain a clean and safe home for Children and become financially stable, and (5) complete parenting classes at Casa & Associates. Mr. Otero testified that Mother had lost her HUD subsidy and her home, and that he did not believe she had acquired a new home. Mr. Otero had spoken with Mother about incidents in which police were called to her home and that resulted in her arrest. Mr. Otero further testified that Mother failed to follow through with court-ordered treatment at the New Mexico Rehabilitation Center (NMRC) on October 21, 2004. Mr. Otero noted that Mother eventually did complete the 21-day program at NMRC, but that she did so on September 20, 2005, after the permanency plan changed from reunification to adoption.

{9} Mr. Otero next testified about a permanency hearing before the district court on March 22, 2005. The district court found that Mother had not been compliant with any aspect of her treatment plan at that time. Mr. Otero had arranged for Mother to attend a long-term, inpatient program in Arizona two days following the hearing. Mr. Otero and others had impressed upon Mother the importance of attending the program and that it would probably be her last chance to get her children back. After missing the first bus that Mr. Otero had arranged for her, Mother took the bus to Arizona the following day. However, after Mother arrived in Arizona, she did not make it to the program. Instead, she took the next bus back to New Mexico. Mother's failure to attend the program resulted in her arrest for a probation violation.

{10} Mr. Otero testified that CYFD decided to change Children's permanency plan to adoption following Mother's arrest. CYFD made this decision because there had been no progress in Mother's treatment plan, Mother was still testing positive for drug use, and she had been in and out of jail 13 times. Mother had not found a job and had not followed Dr. Parsons' recommendation that she attend individual therapy. Mr. Otero felt that he had done everything he could to assist Mother in complying with her treatment plan. Mr. Otero testified that Children were adoptable and that they were currently placed in foster care with Mother's uncle and his wife, who wished to adopt Children. Mr. Otero opined that, after two years of proceedings, it was time for Children to have some permanency, and that they had bonded with their foster parents. Mother's counsel cross-examined Mr. Otero and confirmed that Mother had completed her psychological evaluation with Dr. Wright, and that she completed a court-ordered women's issues group at...