State v. Raquel M. (In re North)
| Decision Date | 24 May 2013 |
| Docket Number | No. 31,869.,31,869. |
| Citation | 303 P.3d 865 |
| Parties | STATE of New Mexico ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner–Appellee, v. RAQUEL M., Respondent–Appellant, In the Matter of Angel N., n/k/a Cisco N., Child. |
| Court | Court of Appeals of New Mexico |
OPINION TEXT STARTS HERE
Children, Youth & Families Department, Oneida L'Esperance, Chief Children's Court Attorney, Rebecca J. Liggett, Children's Court Attorney, Santa Fe, NM, for Appellee.
Jane B. Yohalem, Santa Fe, NM, for Appellant.
Pittman Law Firm, P.C., Judy A. Pittman, Roswell, NM, for Guardian ad Litem.
{1} Raquel M. (Mother) appeals the district court's judgment terminating her parental rights to Angel N., now known as Cisco N. (Child). Based upon its finding that Child had been subjected to aggravated circumstances—specifically, that Mother's parental rights to Child's sibling had previously been terminated—the district court relieved the Department of its obligation to make further reasonable efforts to reunify the family. Mother contends that because the prior termination was the subject of a pending appeal in this Court, her right to due process was violated by the aggravated circumstances finding. We conclude that Mother's due process rights were not violated, and we affirm.
{2} When a child is found to be neglected or abused, the district court must order the Children, Youth and Families Department (the Department) to design and implement a treatment plan that reflects “reasonable efforts” on behalf of the Department to preserve and reunify the family. NMSA 1978, § 32A–4–22(C) (2009); see also State ex rel. Children, Youth & Families Dep't v. Amy B., 2003–NMCA–017, ¶ 2, 133 N.M. 136, 61 P.3d 845 (). Subject to court approval of the treatment plan, the child's parent is ordered to cooperate with its dictates. Section 32A–4–22(C). In some circumstances, however, the court may relieve the Department of its obligation to employ reasonable efforts at reunification, including its obligation to implement a treatment plan. Id. One such circumstance is a finding, by the court, that the parent has subjected the child to aggravated circumstances. Section 32A–4–22(C)(2). By definition, “aggravated circumstances” includes those circumstances in which the parent has had parental rights over a sibling of the child terminated involuntarily. NMSA 1978, § 32A–4–2(C)(4) (2009).
{3} A finding of aggravated circumstances also plays a role in the termination of parental rights. “The Children's Code gives the [district] court the authority to terminate the parental rights of an abusive or neglectful parent.” State ex rel. Children, Youth & Families Dep't v. Mafin M., 2003–NMSC–015, ¶ 18, 133 N.M. 827, 70 P.3d 1266. Ordinarily, the court may not terminate parental rights unless the court determines “that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts by the [D]epartment ... to assist the parent in adjusting the conditions that render the parent unable to properly care for the child.” NMSA 1978, § 32A–4–28(B)(2) (2005) (emphasis added). In cases where the parent has subjected the child to aggravated circumstances, however, the district court may find that efforts by the Department are unnecessary. Section 32A–4–28(B)(2)(b). Under those circumstances, where the Department is excused of its reasonable-efforts obligation, in order to succeed on a motion to terminate parental rights, the Department must still prove that the conditions and causes of the abuse and neglect would not change in the foreseeable future. Amy B., 2003–NMCA–017, ¶ 18, 133 N.M. 136, 61 P.3d 845.
{4} On December 16, 2010, the district court entered a judgment terminating Mother's parental rights to a sibling of Child. Mother appealed the December 16 judgment to this Court. See In re Isiah M., No. 31,057, slip op. (N.M.Ct.App. March 27, 2012). On February 4, 2011, while Mother's appeal to this Court was pending, the Department filed an abuse and neglect petition alleging that Mother had abused and/or neglected Child.1
{5} The abuse and neglect petition alleged the following facts in support of its request that the district court find that Child was neglected and/or abused. On January 31, 2011, the Department responded to an emergency law enforcement referral alleging physical neglect of Child. Law enforcement had entered a residence due to outstanding warrants for the adult residents. When they entered the residence, the officers “observed what they believed to be adults trying to place [Child, who was less than three months old at the time] into a hole in the floor.” There was drug paraphernalia throughout the residence. Mother was arrested pursuant to outstanding warrants. Child was taken into the custody of the Department. As of the filing date of the petition, Mother was incarcerated. Based on a mouth swab, Child tested positive for methamphetamine, indicating that Child had been exposed to the drug within thirty-six hours prior to being tested.
{6} The petition also alleged that Mother had subjected Child to aggravated circumstances based on the December 16, 2010, judgment that terminated her parental rights to Child's sibling, Isiah. Owing to the aggravated circumstance of the December 16, 2010, termination of Mother's parental rights to Isiah, the Department requested to be relieved of its obligation to make reasonable efforts to preserve and reunify the family as to Child, pursuant to Section 32A–4–22(C)(2).
{7} Also on February 4, 2011, the Department filed its affidavit in support of an ex parte custody order. In greater detail and with additional facts, the affidavit essentially expanded upon the facts presented in the abuse and neglect petition. Among other facts, the affidavit alleged that there was a bottle, a blanket, and a cell phone in one of two holes in the floor. Further, law enforcement officers were said to have observed a marijuana pipe and two methamphetamine pipes in the living room, as well as a purse containing foil and plastic baggies, which the officers suspected to be related to drugs. Mother had approximately fifteen warrants for her arrest.
{8} On February 7, 2011, the district court filed an ex parte custody order, mandating that Child remain in the Department's custody “until further order of the [c]ourt.” On March 8 and April 19, 2011, the district court held an adjudicatory hearing on the Department's abuse and neglect petition. In its disposition order, the court found by clear and convincing evidence that Mother's parental rights to a sibling of Child's had been involuntarily terminated on December 16, 2010. Based on that prior termination of parental rights, the district court found aggravated circumstances as to Mother. The court also found that “further treatment efforts by [the Department] would be futile”; accordingly, the court relieved the Department of making further efforts to work a treatment plan with Mother.
{9} On May 17, 2011, the district court held an initial permanency hearing. The court noted that owing to its April 19 finding of aggravated circumstances, it had relieved the Department of making reasonable efforts and implementing a treatment plan. The court found that “[t]he permanency plan proposed by the Department is adoption[,]” which plan the court found appropriate. The court ordered that Child's permanency plan would be adoption.
{10} On July 11, 2011, the Department moved to terminate Mother's parental rights to Child. In its motion, the Department stated that the “facts and circumstances supporting ... termination” were that Child was subjected to aggravated circumstances in that the parental rights to a sibling had been terminated involuntarily and that termination of parental rights would promote the physical, mental, and emotional welfare needs of Child.
{11} A hearing on the Department's motion to terminate Mother's parental rights was held on September 23, 2011. On October 20, 2011, the district court entered its decision to terminate Mother's parental rights. On appeal, Mother does not challenge the district court's factual findings. In pertinent part, those findings included that Mother has a chronic illegal drug abuse problem; Mother's parental rights were involuntarily terminated in regard to Isiah; when Child was taken into Department custody, “he had a high level of methamphetamine in his system”; and Mother had been “in and out of jail since the beginning of this case.” Specifically, the court found that Mother was incarcerated from January 31, 2011, through early May 2011; and on September 13, 2011, Mother was arrested again for allegedly violating the conditions of her probation.
{12} The court found that after Mother was released from jail in early May 2011, she requested visitation with Child, and while she was incarcerated, she had some limited visitation, but none after May 17, 2011, and beyond her initial request for visitation, Mother made no further contact with the Department. The court also found that Mother took advantage of services that were available to her during her January to May 2011 incarceration, but after her release she did nothing to eliminate the causes and conditions that brought Child into custody. In the court's view, those causes and conditions included:
A. Mother has never had a home.
B. Mother has never had employment.
C. Mother continues to use illegal drugs (the alleged probation violation is for the use of illegal drugs).
D. Mother has never entered, let alone completed, any drug treatment plan.
E. Mother did not follow up on working on her GED.
In addition, the court found that “[t]he only progress Mother has ever made has been when she has been incarcerated[,]” and it is unknown when Mother will be released from incarceration....
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