Matter of Doe

636 P.2d 888, 97 N.M. 69
CourtNew Mexico Court of Appeals
DecidedNovember 3, 1981
Docket5159
StatusPublished
Cited by4 cases

This text of 636 P.2d 888 (Matter of Doe) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Doe, 636 P.2d 888, 97 N.M. 69 (N.M. Ct. App. 1981).

Opinion

OPINION

WALTERS, Chief Judge.

On December 11, 1980, the Human Services Department (HSD), appellee, filed an application to terminate parental rights in the district court in Otero County. After a hearing on the merits, the trial court terminated respondent’s parental rights and she now appeals. We affirm the trial court’s decision.

I.

Respondent challenges numerous of the trial court’s findings of fact. Her brief, in large part, sets forth the evidence most favorable to her arguments, contrary to Rule 9(d), N.M.R.Civ.App.P. The Supreme Court has held that appellant’s failure to comply with this rule bars consideration of the appeal. Lacy v. Holiday Management Co., 85 N.M. 460, 513 P.2d 394 (1973). We would be justified in following that course in this matter; however, because the issue here is concerned with termination of parental rights and the welfare of a minor, we choose to decide the appeal on its merits. We do not approve violation of the appellate rules. See Henderson v. Henderson, 93 N.M. 405, 600 P.2d 1195 (1979).

II.

These findings are attacked by respondent:

5. [Respondent] has failed to provide [minor child] with proper subsistence in that her feeding practices over an extended period of time failed to provide the child with proper food in adequate quantities.
7. As a direct and proximate result of [respondent’s] feeding practices, the child . .. suffered malnourishment, exhibiting a variety of symptoms such as vomiting and diarrhea.
8. [Minor child’s] symptoms of gastrointestinal problems disappeared during hospital stays when he was fed by hospital personnel but returned when [respondent] was allowed to feed him unsupervised.
11. [Minor child’s] gastrointestinal problems cleared up after he entered foster care in the home of ... State licensed foster parents.
15. The Human Services Department has provided social services to [respondent] and her family including coordinating the services of appropriate agencies who offered nutrition and feeding practices instruction, counseling and therapy.
21. The Human Services Department and other agencies made reasonable efforts to assist [respondent] in adjusting to the conditions which render her unable to care for [minor child], and she is unlikely to change in the foreseeable future and be able to care for the child.
23. [Grandmother] failed to supervise her daughter’s care of her grandchild and failed to prevent [minor child] from suffering malnourishment.
26. The natural parent/child relation^ ship has developed between the foster family and the child.
27. A psychological parent/child relationship has developed between the foster family and the child.
29. Human Services Department has refused to guarantee that the child will be placed for adoption with his present foster parents, because of their age.

It is significant to note at the outset that the perspective of the trial judge, in determining the matter before him, was enhanced by the foregone acknowledgment of respondent’s mental retardation by all of the parties and witnesses. The direct and cross-examination of the 27-year-old respondent demonstrates, from her responses to questions asked, a degree of incoherence, inconsistency and child-like lack of understanding. The trial court had the benefit of hearing the witnesses, including respondent, and of observing their demeanor at trial. Our review in that respect is hampered by a “cold record”; nevertheless, the suggestion of respondent’s mental limitations is present in the record.

(1) Findings 5, 7, and 21 are supported by the testimony of the pediatrician and the general practitioner who periodically attended and examined the respondent and the minor child, and by the social workers assigned to the case. Dr. Starr attributed the child’s cachexia (profound ill health and malnutrition), present when he first examined him, to be the primary cause of the child’s substantially underdeveloped physical and mental condition. He was concerned about respondent’s poor feeding practices and attempted to instruct her how the baby should be fed. Both medical witnesses and one of the caseworkers expressly doubted respondent’s capacity to properly care for the child’s needs in the future. The other caseworker had some reservations whether she could ever be trained to do so.

We decline to hold that the substantial evidence supporting these findings was not clear and convincing to the trial court. Our view of the evidence, in a light most favorable to appellee, is to determine whether the factfinder could properly have reached an abiding conviction of the truth of the facts found. Duke City Lumber Co., Inc. v. Terrel, 88 N.M. 299, 540 P.2d 229 (1975). The evidence convincingly establishes the respondent’s inability to comprehend and retain the medical advice given to her on how to care for her child; there is equally convincing evidence that her inattention to the child’s needs was a contributing cause of his continued ill health and “failure to thrive.” There was no error in the trial court’s Findings 5, 7, or 21.

(2) Respondent contends that deficiencies in support of Findings 15 and 21 exist because there was no evidence that HSD had ever psychologically tested respondent to learn the severity of her mental retardation or the extent of her capability to learn parenting techniques.

Section 40-7-4 B(3), N.M.S.A.1978, implies that HSD must make “reasonable efforts to assist the parent in adjusting the conditions which render the parent unable to properly care for the child.” There is evidence that for a period a home health nurse visited respondent’s home twice a week to train respondent in feeding the child; that arrangements were made with Zia Therapy Center and the foster parents to teach child care to respondent; that transportation was arranged for her by HSD for those “learning” sessions. For one reason or another respondent failed to participate in most of the training program HSD attempted to put into effect.

The statute speaks of “reasonable efforts” to assist the parent. Viewing the evidence on this issue in the light most favorable to the prevailing party, Adoption of Doe, 89 N.M. 606, 555 P.2d 906 (Ct.App.1976), we are satisfied that there is clear and convincing evidence of HSD’s reasonable attempts to train this mother to care for her child. It must be remembered that the Department’s first and paramount concern was for immediate daily attention to a severely undernourished child who also suffered with chronic gastro-intestinal problems.

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Related

Helen F. v. State Ex Rel. Human Services Department
786 P.2d 699 (New Mexico Court of Appeals, 1990)
State ex rel. Department of Human Services v. Peterson
711 P.2d 894 (New Mexico Court of Appeals, 1985)
Matter of CP
711 P.2d 894 (New Mexico Court of Appeals, 1985)

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Bluebook (online)
636 P.2d 888, 97 N.M. 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-doe-nmctapp-1981.