STATE EX REL. CHILDREN v. Hector

185 P.3d 1072
CourtNew Mexico Court of Appeals
DecidedMarch 4, 2008
Docket26,807
StatusPublished
Cited by55 cases

This text of 185 P.3d 1072 (STATE EX REL. CHILDREN v. Hector) 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
STATE EX REL. CHILDREN v. Hector, 185 P.3d 1072 (N.M. Ct. App. 2008).

Opinion

185 P.3d 1072 (2008)
2008-NMCA-079

STATE of NEW MEXICO, ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee,
v.
HECTOR C., Respondent-Appellant.
In the Matter of Magdalena M., Hector C. JR., and Xavier C., Children.

No. 26,807.

Court of Appeals of New Mexico.

March 4, 2008.
Certiorari Denied April 30, 2008.

*1074 New Mexico Children, Youth and Families Department, 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.

Certiorari Denied, No. 31,012, April 30, 2008.

OPINION

KENNEDY, Judge.

{1} Father's parental rights to his two biological children, Xavier and Hector Jr., were terminated by the district court pursuant to NMSA 1978, §§ 32A-4-28(B)(2), (B)(3) (2005). A third child, Magdalena, shares a biological mother with Xavier and Hector Jr. but is not Father's biological daughter. The district court determined that Father had no parental rights to Magdalena and terminated any of Father's remaining rights to her. We refer to Xavier, Hector Jr., and Magdalena collectively as the children. Father appeals the termination, arguing that the record is insufficient to support, by clear and convincing evidence, that (1) the causes and conditions of the neglect were unlikely to change in the future, (2) the New Mexico Children, Youth and Families Department (CYFD) made reasonable efforts to assist him in remedying the causes of his neglect of the children, and (3) he presumptively abandoned his children. Our review of the evidence does not support the district court's findings of fact that the causes and conditions of neglect were unlikely to change in the foreseeable future. However, we affirm the termination of Father's parental rights based on presumptive abandonment.

FACTS AND PROCEDURAL HISTORY

{2} CYFD took custody of the children on January 13, 2004, after Kristy M. (Mother) left them with a friend. The friend then left the children with a neighbor, who called CYFD because she was unsure of how to deal with Xavier's physical condition. Xavier was taken to the hospital, exhibiting red *1075 sores, scabs, bruises, redness, and swelling; he was also vomiting and suffering from diarrhea.

{3} The next day, CYFD filed a petition alleging that Mother and Father had abused or neglected the children. Father was incarcerated at the time the children were taken into CYFD custody, and he was served with the petition for abuse or neglect on May 4, 2004. At that time, Father expressed a preference that Xavier and Hector Jr. be placed with his sister. Father was incarcerated for receiving stolen property and tampering with evidence when Xavier was four months old and Hector Jr. was two years old. Father had not been with the children since one month before Xavier was born. Magdalena was placed with her maternal grandmother, and Xavier and Hector Jr. were placed with a foster family.

{4} On May 26, 2004, an initial judicial review hearing was held, and a treatment plan was approved. The treatment plan sought reunification between Xavier, Hector Jr., Magdalena, and Mother and Father. The treatment plan noted that Father was incarcerated but willing to work the treatment plan in order to get the children back. The treatment plan further noted that CYFD was working to place Xavier and Hector Jr. with a paternal aunt but that such placement had not yet happened. It was later determined that placing Xavier and Hector Jr. with the paternal aunt would put them in danger. The family treatment plan noted that Father was to have visits with the children while he was incarcerated but that the visits would be at CYFD's discretion. Father's treatment plan consisted of a psychological exam, a goal of becoming a law-abiding citizen upon release, a goal of remaining drug-free upon release, increasing parenting skills while incarcerated by completing parenting classes, attending individual and/or family counseling while incarcerated and upon release, and providing a stable and safe home for the children.

{5} The district court held an adjudicatory hearing on the neglect petition on July 21, 2004. Prior to the hearing, CYFD amended the original petition to remove any allegation of abuse, alleging only neglect as to Father. The court found that Father was unable to discharge his responsibilities for the children because of his incarceration and that the children were neglected under NMSA 1978, § 32A-4-2(E)(4) (1999).

{6} During his incarceration and after the adjudication of neglect, Father asked about the welfare of his children. CYFD had a counselor contact Father to determine if CYFD could provide services to assist in Father's compliance with his treatment plan. CYFD did not provide services relating to the reunification of Father and his children because of Father's isolation, depression issues, and gang issues. Father was in segregation from the rest of the prison population because he was in danger from the prison gangs, having been labeled a "snitch." Father was in counseling for his depression and substance abuse issues. Because of Father's segregated status, depression, and substance abuse, the services that CYFD could have provided for Father were not appropriate.

{7} According to a pre-dispositional report and treatment plan for Father entered on August 4, 2004, Father had not seen the children since before CYFD had taken them into custody. The report also noted that Xavier and Hector Jr. had bonded well with the foster family and that Xavier's health-related conditions were improving. According to a treatment plan entered on September 24, 2004, and findings contained in an initial judicial review order entered on November 10, 2004, Father was noncompliant with the treatment plan because of his incarceration.

{8} CYFD provided for two visits between Father and Xavier and Hector Jr. while Father was incarcerated. These visits were discontinued when CYFD determined that the visits were traumatic for Xavier and Hector Jr. Father wrote to Xavier and Hector Jr. a total of five times from January 2004 until his release in November 2005.

{9} Before Father's release from prison, the children's permanency plan was changed from reunification to adoption. On the same day, CYFD filed a motion for termination of parental rights. Father filed a motion opposing the termination of his parental rights. After Father's release, another periodic judicial review performed on January 18, 2006, found that Father had not made any progress *1076 on his treatment plan "[d]ue to incarceration and gang affiliation" and attributed such lack of progress to his depression. Father's parental rights were terminated on April 21, 2006.

DISCUSSION

Magdalena

{10} Father does not argue that the district court erred in determining that Father did not have any rights, parental or otherwise, to Magdalena, pursuant to A.C. v. C.B., 113 N.M. 581, 829 P.2d 660 (Ct.App.1992) and In re Adoption of Francisco A., 116 N.M. 708, 866 P.2d 1175 (Ct.App.1993). We do not address arguments not raised on appeal. See In re Doe, 98 N.M. 540, 541, 650 P.2d 824, 825 (1982). Accordingly, we affirm the district court's disposition as to Magdalena.

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Cite This Page — Counsel Stack

Bluebook (online)
185 P.3d 1072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-children-v-hector-nmctapp-2008.