Termination of Parental Rights of Eventyr J., Matter of
| Decision Date | 07 July 1995 |
| Docket Number | No. 15574,15574 |
| Citation | 902 P.2d 1066,120 N.M. 463,1995 NMCA 87 |
| Parties | In the Matter of the TERMINATION OF the PARENTAL RIGHTS OF EVENTYR J., Gilbert C., Keith (last name unknown), Douglas B., and John Doe, Respondents, with respect to Melissa C., Christopher C., Michael P., and Anastasia B., Children. STATE of New Mexico, Petitioner-Appellee, v. EVENTYR J., Respondent-Appellant. |
| Court | Court of Appeals of New Mexico |
Respondent appeals from the district court's decision to terminate her parental rights to her four children. She raises three issues on appeal. First, Respondent argues that the district court's findings of abuse and neglect were not supported by clear and convincing evidence. Second, Respondent argues that the admission, in the district court proceeding, of statements she made to the Citizen's Review Board deprived her of due process. Third, Respondent argues that she was further deprived of due process by the district court's reliance on a nolo contendere plea that she entered in a previous abuse and neglect case where she was not accorded procedural due process. Based on our review of the record, we conclude that there was clear and convincing evidence to support the district court's order terminating Respondent's parental rights and that Respondent's due process rights were not violated. We affirm.
The standard of proof in cases involving the termination of parental rights is whether the grounds relied upon by the district court in terminating a respondent's parental rights have been proven by clear and convincing evidence. Reuben & Elizabeth O. v. Department of Human Servs., 104 N.M. 644, 647-48, 725 P.2d 844, 847-48 (Ct.App.), cert. denied, 104 N.M. 84, 717 P.2d 60 (1986); see NMSA 1978, § 32A-4-29(J) (Repl.Pamp.1993) (). Our Supreme Court has described the clear and convincing evidence test as follows: "For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true." In re Sedillo, 84 N.M. 10, 12, 498 P.2d 1353, 1355 (1972).
On appeal, this Court may not reweigh the evidence. In re R.W., 108 N.M. 332, 335, 772 P.2d 366, 369 (Ct.App.), certs. denied, 108 N.M. 273, 771 P.2d 981 (1989). Instead, we must view the evidence in the light most favorable to support the district court's findings. Reuben & Elizabeth O., 104 N.M. at 647-48, 725 P.2d at 847-48. The district court was in a better position to assess the live testimony than we are. It is for this reason that our scope of review is a narrow one. R.W., 108 N.M. at 335, 772 P.2d at 369. Our standard of review is therefore whether, viewing the evidence in the light most favorable to the prevailing party, the fact finder could properly determine that the clear and convincing evidence standard was met. See id. at 334-36, 772 P.2d at 368-70; In re Estate of Fletcher, 94 N.M. 572, 575, 613 P.2d 714, 717 (Ct.App.), cert. denied, 94 N.M. 674, 615 P.2d 991 (1980).
On December 30, 1992, the New Mexico Children, Youth and Families Department (CYFD) filed an application seeking the termination of Respondent's parental rights to her four children: Melissa, Christopher, Michael, and Anastasia. The CYFD filed the application after several years of involvement with Respondent and her children.
On December 18, 1987, Respondent was found intoxicated and passed out in front of her house in La Bajada, a rural community south of Santa Fe. The Sandoval County Sheriff's Department took Respondent's three children (Anastasia was not yet born) into custody, and the children remained in emergency custody over the weekend. The CYFD did not file a custody petition at that time but did begin monitoring Respondent's home situation.
After receiving additional referrals regarding Respondent's neglect of the children, the CYFD took custody of the children on March 18, 1988. Respondent reportedly learned of the children being in custody on March 24, 1988, but did not contact the CYFD until March 28, 1988. In the interim, the CYFD filed an abuse and neglect petition against Respondent. The children were then placed in foster care. After Respondent's eventual compliance with the approved treatment plan, the children were returned to Respondent, one at a time, in late 1989 and early 1990. The legal custody proceeding was dismissed in July 1990, but protective supervision of the children continued until March 6, 1991.
In October 1991, the CYFD received new complaints about Respondent and her children. It was reported that Melissa was "fending for herself" and had spent the night in a car outside her grandmother's house in Santa Fe, and that Michael, not yet five years old, was found walking alone on the street outside the grandmother's house. The CYFD filed a second abuse and neglect petition against Respondent on October 11, 1991, and placed Melissa and Christopher in custody.
After the two older children were placed in the custody of the CYFD, Respondent was held in contempt of court and jailed for failing to reveal the whereabouts of the two younger children. Respondent remained in jail for approximately three months and finally disclosed the location of the two younger children only after the CYFD agreed to physically place them with her.
Under the treatment plan in the 1991 case, Respondent was evaluated and eventually entered individual therapy. Respondent and the children also attended family therapy sessions. At a periodic review hearing held on July 15, 1992, the two younger children were removed from Respondent and placed in foster care.
An application seeking the termination of Respondent's parental rights to her four children was filed on December 30, 1992. The CYFD discontinued visitation between Respondent and the children on July 15, 1993, following an argumentative family therapy session after which Respondent told the children to "go and get [them]selves adopted and there won't be any more visits."
The grounds for the termination of parental rights are currently codified at NMSA 1978, Section 32A-4-28 (Repl.Pamp.1993). 1 Subsection A of the statute directs the court in termination proceedings to "give primary consideration to the physical, mental and emotional welfare and needs of the child." Section 32A-4-28(A). Subsection B sets forth the specific grounds for termination:
B. The court shall terminate parental rights with respect to a child when:
....
(2) the child has been a neglected or abused child as defined in the Abuse and Neglect Act [this article] and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts by the department or other appropriate agency to assist the parent in adjusting the conditions which render the parent unable to properly care for the child; provided, the court may find in some cases that efforts by the department or another agency would be unnecessary, when there is a clear showing that the efforts would be futile....
Section 32A-4-28(B)(2).
Before terminating Respondent's parental rights, the district court was therefore required to make three separate findings: (1) that the children were abused or neglected, (2) that the conditions and causes of the abuse and neglect were unlikely to change in the foreseeable future, and (3) that the CYFD made reasonable efforts to assist Respondent in adjusting the conditions which rendered her unable to properly care for the children. See id. The district court found that these three elements had been proven by clear and convincing evidence, as required under Section 32A-4-29(J), and terminated Respondent's parental rights. Respondent now challenges several of the district court's findings, as well as its decision to terminate her parental rights.
We note at the outset that this Court's decision in In re Adoption of J.J.B., 117 N.M. 31, 868 P.2d 1256 (Ct.App.1993), cited by Respondent in her brief, has since been partially reversed by our Supreme Court. See In re Adoption of J.J.B., 119 N.M. 638, 894 P.2d 994 (1995). To the extent Respondent argues that her parental rights should not be terminated without a specific finding of unfitness, the Supreme Court's decision in J.J.B. is dispositive. The Supreme Court held that "parental unfitness is inherent in a finding by the [district] court that any of these conditions [i.e., abuse or neglect] exist, and no separate showing or finding by the court with reference to unfitness is necessary." Id. at 647, 894 P.2d at 1003. A separate finding of parental unfitness was therefore not necessary in the present case.
An abused child is one "who has suffered physical abuse, emotional abuse or psychological abuse inflicted by the child's parent[.]" NMSA 1978, § 32A-4-2(B)(1) (Repl.Pamp.1993). A neglected child is one "who is without proper parental care and control or subsistence, education, medical or other care or control necessary for the child's well-being because of the faults or habits of the child's parent ... or the neglect or refusal of the parent, ... when able to do so, to provide them[.]" NMSA 1978, § 32A-4-2(C)(2) (Repl.Pamp.1993). The district court found, by clear and convincing evidence, that Respondent's children were abused and neglected under these definitions. More specifically, the district court found that Respondent...
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