State of N.M. ex rel. Cyfd v. Amanda M.
| Decision Date | 07 September 2006 |
| Docket Number | No. 26,220.,26,220. |
| Citation | 144 P.3d 137,2006 NMCA 133 |
| Parties | STATE of New Mexico ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. AMANDA M., Respondent-Appellant, and In the Matter of Angelina S., a Child. |
| Court | Court of Appeals of New Mexico |
New Mexico Children, Youth & Families Dep't., 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.
{1} Amanda M. (Mother) appeals the trial court's judgment that she abused and neglected her daughter, Angelina S. We first address whether this Court should accept appellate jurisdiction where, as here, the notice of appeal of an adjudication of abuse and neglect is filed late. We next address Mother's contention that there was a lack of clear and convincing evidence that Mother abused and neglected Angelina.
{2} We affirm.
{3} Piecing together the testimony of this case, the following time line emerges. On February 8, 2005, the Children, Youth and Families Department (CYFD) took fourteen-month-old Angelina into custody after Angelina was taken to the hospital with a fractured skull, subdural hematoma, and multiple bruises to her chest, sternum, head, and back. At the time, Mother lived with her boyfriend, Eric Gore, who was not Angelina's father. Gore had been Angelina's primary caretaker since the previous August.
{4} On the morning of February 8, Mother got up at 7:30 a.m. to go to work. Angelina had awakened, so Mother gave her a bottle and put her back to bed before going to work. At this time, Mother said that Angelina looked fine and did not have any bruises on her forehead. She left Angelina in Gore's care at around 7:45 to 8 a.m.
{5} At around 8 to 8:30 a.m., Gore woke up Angelina. He did not feed her at that time because he was going to wait until they got to his sister Latasha Gore's house. Right before Gore and Angelina left, at about 8:45 to 9 a.m., Mother called Gore. Their conversation did not give her any concerns.
{6} At his sister's house, Gore fed Angelina around 11 a.m. and Angelina vomited up some of this food. A short while later, at 11 to 11:30 a.m., Gore told Mother about this incident. Gore also told Mother that Angelina appeared sick and was not quite herself, but that Angelina had played with another child well after the vomiting.
{7} Mother spoke to Gore again around 2 p.m. Gore told her that Latasha had watched Angelina and two other children (Destiny and Andrew) while Gore was out moving Latasha's belongings. Gore told Mother that when he returned about a half hour to an hour later, Latasha said that Angelina had vomited again. Gore did not question Latasha about the vomiting. Later in the day, Gore noticed a bruise on Angelina's forehead, and asked Latasha about it, but Latasha did not know how it happened. When Mother called Gore again at 4 p.m., Gore told her that Angelina seemed to be feeling slightly better.
{8} Mother picked up Gore and Angelina at approximately 5 to 5:30 p.m. Gore later told the social worker investigating the case that around this time, he noticed that Angelina was not herself and appeared sick. Mother told the social worker that she did not notice anything about Angelina except that Angelina was tired. Mother also testified that because Angelina was sleeping when Mother arrived, Angelina looked groggy, as if she had just woken up. Mother stated that Angelina typically took a nap around that time. Mother then testified that when she brought Angelina to her car, she brushed back Angelina's hair and discovered a small bruise on Angelina's forehead. She asked Gore what had happened, and he told her he did not know. Mother admitted that she looked at Angelina more upon noticing this bruise, but claimed it was all she noticed.
{9} Mother, Gore, and Angelina then went to store for ten to fifteen minutes. Mother testified that she brought Angelina into the store with her and that Angelina was still sleepy during this time. According to Mother's testimony, at some time between 5:45 and 6 p.m., the three arrived at the house of Anna Marie Castlow, who is Angelina's grandmother on Mother's side. (Mother told the social worker they arrived at 6 to 6:30 p.m.)
{10} When Castlow came home at 6:15 p.m., Mother and Gore were in the kitchen doing dishes. Castlow testified that the other children in the house rushed at her in greeting, but that due to the commotion, she only saw Angelina briefly and in passing. Castlow testified that Angelina was sitting on the floor by herself. Mother, on the other hand, testified that Angelina was playing with another child. Castlow went into the kitchen to greet Mother. When Castlow came back out, she sat on the couch and picked up Angelina. Castlow testified she looked at Angelina and then "double look[ed] again." Brushing Angelina's hair back, she saw that the side of Angelina's face was the "size of a grapefruit" and her eye was partially swollen. Castlow further stated that Angelina looked like she was not "all there," was glossy-eyed, that she looked "severely injured," and that her head was so swollen it was up against her ear. Castlow said that Angelina's appearance was "horrifying."
{11} Gore's statement to the social worker also confirmed Castlow immediately noticed the swelling on Angelina's head. Mother, however, was adamant in her testimony that Castlow had held Angelina for five to eight minutes before noticing the swelling, and only noticed it after commenting on the messiness of Angelina's hair and pulling it "all the way back." Mother also asserted that the swelling on Angelina's head was not the size of a grapefruit until later on at the hospital.
{12} Soon after calling a nurse hotline, Mother and Gore took Angelina to the hospital. Angelina arrived at the hospital with a fractured skull, subdural hematoma, and multiple bruises to her chest, sternum, head, and back. A detective interviewed Mother and Gore that evening, and Mother was unresponsive and would not answer questions. Gore answered the detective's questions, but could not explain Angelina's injuries.
{13} The next day, Angela Teertstra, a senior social worker with CYFD, sat in on the detective's next interview with Mother and Gore. Neither Mother nor Gore offered an explanation for Angelina's injuries at that time. During the interview, Mother did not state that she had noticed the swelling on Angelina's head before Castlow noticed it and Gore also denied seeing any swelling or bruising (other than the bruise on the forehead) during the day.
{14} When Teertstra spoke to Mother and Gore the day after that, on February 10, both stated that they did not know what had happened to Angelina. Teertstra also spoke to seven-year-old Destiny, Gore's younger sister. Destiny was with Latasha and Angelina most of the time that Angelina was at Latasha's house. Destiny told Teertstra that she did not see anyone hit Angelina or see Angelina fall, but that while she was in another room, she heard Angelina crying and calling for her, then heard Gore tell Angelina not to go. Destiny's mother stated that ever since the day Angelina was injured, Destiny had been jumpy and overly apologetic.
{15} After taking Angelina into custody, CYFD filed an abuse and neglect petition against Mother and Gore. At trial, Mother testified that Angelina had no significant prior injuries, but that she had once fallen out of her highchair while in Gore's care. Mother had come home and taken Angelina to the hospital. Mother further insisted that Angelina's head swelling was not as large as Castlow claimed and was not visible until the moment Castlow pulled back Angelina's hair. When asked what had happened to Angelina, Mother stated, "I wasn't there; I wouldn't know." When asked if she thought her daughter's injuries were accidental, Mother replied "I wouldn't know; I wasn't there." Mother also testified that only after Gore was taken in for questioning in a later interview with the detective, he informed her that Angelina's injuries were caused by a fall from a trampoline.
{16} The trial court, in ruling, found the trampoline story "a bunch of bologna" and Mother's testimony "absolutely unbelievable." The trial court accepted Gore's no contest plea to the abuse and neglect petition. In its written findings of fact and conclusions of law, it found that Angelina was an abused child within the purview of the Children's Code, NMSA 1978, §§ 32A-1-1 to 32A-23-8 (), and that:
6. There is clear and convincing evidence that [Mother] had care of the child early in the day before she went to work and that while she was at work she was told that the child was vomiting and was "not herself". The child suffered physical abuse pursuant to [S]ection 32A-4-2 B(2) of the Children's Code.
7. There is clear and convincing evidence that [Mother] did not respond appropriately to the child's injuries when she saw the child after work and it wasn't until the child's grandmother saw the child's injuries that the child was taken to the hospital. The child was at risk of further harm pursuant to [S]ection 32A-4-2 B(1) of the Children's Code.
8. There is clear and convincing evidence that [Mother] knew or should have known that the child could be injured in the care of ... Gore, pursuant to [S]ection 32A-4-2 E(3) of the Children's Code, since the child had previously been hurt when she reportedly fell out of her highchair when in his care.
9. There is clear and convincing evidence that the child was negligently endangered by [Mother] when she left the child with ... Gore and when the child was left without medical care for several hours after sustaining the injuries on February 8, 2005.
{17} Mother appeals from this judgment, and we affirm.
{18} We review de novo the question of whether this...
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