State of N.M. ex rel. Cyfd v. Jeremy N.

• Decision Date: 27 June 2008
• Docket Number: No. 27,397.,27,397.
• Citation: 2008 NMCA 145,195 P.3d 365
• Parties: STATE of NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. JEREMY N., Respondent-Appellant, and In the Matter of Bryce N., a Child.
• Court: Court of Appeals of New Mexico

195 P.3d 365

2008 NMCA 145

STATE of NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. JEREMY N., Respondent-Appellant, and In the Matter of Bryce N., a Child.

No. 27,397.

Court of Appeals of New Mexico.

June 27, 2008.

Certiorari Denied, No. 31,238, September 4, 2008.

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.

OPINION

VIGIL, Judge.

{1} This appeal arises out of an abuse and neglect petition filed by the Children, Youth and Families Department (Department) against Father and Mother. At the adjudicatory hearing, Mother's motion for a directed verdict was granted over Father's objection. The district court entered its judgment that Father abused child, and Father appeals, challenging only the directed verdict granted in Mother's favor. As we discuss more fully, Mother's motion was not, strictly speaking, a motion for directed verdict. Nevertheless, the district court order determined that the Department failed to produce sufficient evidence to proceed against Mother on the allegations contained in the petition. We affirm.

PROCEDURAL BACKGROUND

{2} The petition filed by the Department alleged that Father "caused the injuries" to Child, consisting of "a lacerated liver and other injuries, including an apparent clavical [sic] fracture and a posterior rib fracture, consistent with child abuse." See NMSA 1978, § 32A-4-2(B)(2) (1999) (including in the definition of an "abused child" a child "who has suffered physical abuse, emotional abuse or psychological abuse inflicted or caused by the child's parent, guardian or custodian") (internal quotation marks omitted). The petition further alleged that Father subjected Child to aggravated circumstances of child abuse in that he "caused the injuries" of "blunt trauma to the abdomen" of Child's twin brother, which resulted in the twin brother's death See § 32A-4-2(C)(1) (defining "aggravated circumstances" to include "those circumstances in which the parent, guardian or custodian has[] attempted, conspired to cause or caused great bodily harm to the child or great bodily harm or death to the child's sibling") (internal quotation marks omitted). The allegation made against Mother by the petition was that Mother neglected Child in that she "did not take reasonable steps" to ensure Child was protected, nor was she "capable of ensuring [Child's] safety and well being at this time." See § 32A-4-2(E)(3) (stating that a "neglected child" is a child "who has been physically or sexually abused, when the child's parent, guardian or custodian knew or should have known of the abuse and failed to take reasonable steps to protect the child from further harm") (internal quotation marks omitted).

{3} At the adjudicatory hearing, Father and Mother were represented by separate counsel. The Department first attempted to change Mother's status from respondent to intervenor, but Father objected, and the district court denied the motion as untimely. After the Department completed presenting its evidence and rested, Mother moved for a directed verdict in her favor. The Department conceded that it was unable to present sufficient evidence to substantiate the allegations against Mother, and agreed that the case against Mother should be dismissed. Father objected, arguing that the motion should not be granted before he presented his evidence, that much of his evidence was inculpatory as to Mother, and that granting the motion would deprive him of the opportunity to present evidence against her. The district court nevertheless concluded, "there is insufficient evidence to proceed on the matter against [Mother]," Mother's motion was granted, and Mother was dismissed from the case. The district court then recessed, and the hearing resumed two weeks later.

{4} At the continuation of the adjudication hearing, Father offered four witnesses: his sister, his father, Mother's former best friend, and a police officer, who had interviewed Father and Mother. Father also indicated that he might call Mother as a witness, but he did not subpoena her, and he never did call her as a witness. At the conclusion of the hearing, Father was adjudicated to have abused and neglected Child, but the allegation that Father caused the death of Child's twin brother as an aggravated circumstance was dismissed. See NMSA 1978, § 32A-4-20(G) (2005) ("If the petition alleges that the parent, guardian or custodian has subjected the child to aggravated circumstances, then the court shall also make and record its findings on whether the aggravated circumstances have been proven.").

DISCUSSION

{5} Father does not appeal the adjudication against him. Instead, he appeals only the district court order granting Mother's motion for a directed verdict. The Department contends that Father has no standing to contest the order granting Mother's motion. "The determination of whether a party has standing to sue is a question of law, which we review de novo." Forest Guardians v. Powell, 2001-NMCA-028, ¶ 5, 130 N.M. 368, 24 P.3d 803. The first element which must be satisfied before standing is present is an injury. Id. ¶ 16. We conclude that Father has failed to demonstrate an injury sufficient to confer standing to contest Mother's motion for a directed verdict, and we therefore affirm.

{6} Abuse and neglect proceedings are brought on behalf of children by the State through the Department. See State ex rel. Children, Youth & Families Dep't v. Michael T., 2007-NMCA-163, ¶ 11, 143 N.M. 75, 172 P.3d 1287. The Department is the only entity authorized to file a petition of abuse or neglect. See NMSA 1978, § 32A-4-4(A), (D) (2005) (stating that upon a report of abuse or neglect, the Department is responsible for "conduct[ing] an investigation to determine the best interests of the child"); NMSA 1978, § 32A-4-15 (1993) ("A petition alleging neglect or abuse shall not be filed unless the children's court attorney has determined and endorsed upon the petition that the filing of the petition is in the best interests of the child."). Father has no authority to initiate and prosecute an abuse and neglect petition, and he has no right to file a cross-claim against Mother in response to a petition filed by the Department. Stated another way, Father has no right to compel the initiation or continuation of an abuse and neglect case.

{7} We agree with the Department that the directed verdict for Mother was against the Department, and that it was based on a finding that the Department failed to present clear and convincing evidence in support of its allegation that Mother failed to protect Child. The Department is the only party against whom the directed verdict was entered, and Father cannot demonstrate he has suffered the requisite injury to acquire standing to assert on appeal that the directed verdict was erroneous. Nevertheless, Father attempts to persuade us he has suffered the requisite injury to confer standing for three different reasons.

{8} First, Father argues that Section 32A-4-20(G) was violated by granting Mother's directed verdict before Father was able to present evidence, which was potentially "inculpatory" as to Mother. Father asserts that the "inculpatory" evidence was to the effect that Mother, not Father, abused Child. Section 32A-4-20(G) of the Children's Code provides:

The court shall determine if the allegations of the petition are admitted or denied. If the allegations are denied, the court shall proceed to hear evidence on the petition. The court, after hearing all of the evidence bearing on the allegations of neglect or abuse, shall make and record its findings on whether the child is a neglected child, an abused child or both.

Father asserts that this statute does not limit the district court to considering only the evidence that the Department presents, and that by granting Mother's motion for a directed verdict before all the evidence, including Father's, was presented, the district court did not consider "all" the evidence. Father further asserts that the "best interests of the child" fell to "second place" when Mother was granted the directed verdict before Father presented his evidence in contravention of the statutory mandate that under the Children's Code, "[t]he child's health and safety shall be the paramount concern." NMSA 1978, § 32A-1-3(A) (1999).

{9} We disagree with Father's reading of Section 32A-4-20(G). The petition made an allegation of neglect or abuse against Father and it made a separate allegation against Mother. The allegation against Father was that he physically abused Child. Separately and distinctly, the allegation against Mother was that she neglected Child in that she failed to protect Child from Father's abuse. The question raised before the district court by Mother's motion for a directed verdict was whether the Department presented clear and convincing evidence that Mother knew or should have known about Father's abuse and failed to take reasonable steps to protect Child. See § 32A-4-2(E)(3) (stating that a "neglected child" is a child "who has been physically or sexually abused, when the child's parent, guardian or custodian knew or should have known of the abuse and failed to take reasonable steps to protect the child from further harm") (internal quotation marks omitted). Father's "inculpatory" evidence that Mother, rather than Father, allegedly abused Child neither proves nor disproves the allegation made against Mother. We therefore reject Father's argument that Section 32A-4-20(G) was violated.

{10} We also reject Father's argument that the "best interests of the child" fell to "second place." Again, Father's argument is based on the contention that he intended to present evidence inculpatory to Mother as to the injuries inflicted on Child. As we have stated, the allegation against...