State Ex Rel. Children, Youth & Families Department v. Athena H.

2006 NMCA 113, 142 P.3d 978, 140 N.M. 390
CourtNew Mexico Court of Appeals
DecidedAugust 3, 2006
Docket25,979
StatusPublished
Cited by30 cases

This text of 2006 NMCA 113 (State Ex Rel. Children, Youth & Families Department v. Athena H.) 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, Youth & Families Department v. Athena H., 2006 NMCA 113, 142 P.3d 978, 140 N.M. 390 (N.M. Ct. App. 2006).

Opinion

OPINION

WECHSLER, Judge.

{1} Athena H., Mother, appeals from the district court’s judgment terminating her parental rights to three of her children, Candice, Charles, and Tholie. She contends that the district court erred in finding that the causes and conditions of abuse and neglect had not been remedied and in finding that the Children, Youth & Families Department (CYFD) made reasonable efforts to assist her in adjusting the causes and conditions that rendered her unable to properly care for the children. She further contends that she was denied effective assistance of counsel. We conclude that, notwithstanding Mother’s compliance with the treatment plan prescribed for her to the best of her ability, the district court did not err in terminating Mother’s parental rights upon its finding that Mother was not capable of parenting her children within the foreseeable future. We therefore hold that the district court did not commit error and also hold that Mother has not demonstrated ineffective assistance of counsel. We affirm.

BACKGROUND

{2} The following facts, found by the district court in its findings of fact and conclusions of law, are not in dispute. Mother has four children, the oldest of whom, John, is not subject to this appeal. The parental rights of Mother’s first and second husbands have been terminated. Mother is remarried. Since 1993, Mother and all the children received services from Colorado Social Services and CYFD. In 1993, Mother learned that John, then age 3, was engaged in inappropriate sexual activity. In 1995, mother learned that John, then age 5, and Charles, then age 3, were involved in inappropriate sexual activity with each other. Mother acted sexually inappropriately with her children and did not react properly to the sexual abuse of her children (by her second husband) and the inappropriate sexual activity among her children that occurred while the children were in her care. All the children were in foster care in Colorado from 1994 to 1996 because of the sexual activity of the children, Mother’s mental health, lack of supervision, and physical and emotional abuse. By the time CYFD assumed custody of the children, on July 11, 2000, the children had “chronic and severe sexual involvement” with each other, with Mother’s knowledge.

{3} The children’s therapists continually recommended that contact with Mother was not in the children’s best interest. The children’s therapists testified that the termination of Mother’s parental rights was in the children’s best interest. Candice was diagnosed as suffering from reactive attachment disorder-disinhibited, major depression with psychotic features, post-traumatic stress disorder, communication disorder, physical symptoms of anal and vaginal penetration, physical abuse, sexual abuse, neglect, a chaotic family environment, and attachment trauma. In addition, Candice had been removed from Mother’s care on several occasions. Charles was diagnosed as suffering from reactive attachment disorder-disinhibited, depression, communication disorder, attachment trauma, physical abuse, and neglect, as well as being a sexual abuser and coming from a chaotic family environment. Charles was also removed from Mother’s care on several occasions. Tholie was diagnosed as suffering from reactive attachment disorder-disinhibited, post-traumatic stress disorder, cavities, lack of toilet training, and a severe history of neglect, physical abuse, and sexual abuse.

{4} In the course of the proceedings, the district court ordered a treatment plan for Mother to enable her to change the conditions and causes of her neglect of her children. The treatment plan included Mother’s obtaining a GED; submitting to a polygraph examination; participating in anger management counseling, relationship counseling, and mental health treatment; and completing parenting classes. The district court found that although Mother did not participate in anger management counseling or participate in mental health treatment or take medication for two years, she complied with the treatment plan to the best of her ability.

{5} Notwithstanding its finding that Mother had complied with the treatment plan to the best of her ability, the district court found that “due to her psychological infirmities and the fact [that] her children have been severely psychologically and emotionally damaged while in her care, [Mother] cannot safely parent her children and meet her children’s emotional and psychological needs in the foreseeable future.” It found that CYFD made reasonable efforts to assist Mother “in adjusting to the conditions which have led to her neglect of the children.” It further found that the children were “so emotionally and permanently damaged by the abuse and neglect inflicted on them by [Mother] and [her second husband], that further efforts by [CYFD] to assist [Mother] in educating herself as to her children’s mental condition, the causes of those conditions and her role in the children’s conditions[, her] own psychological makeup and parenting skills, and other conditions that rendered her unable to properly parent her children, were not going to make a difference.”

ACTIONS OF MOTHER AND REASONABLE EFFORTS OF CYFD TO REMEDY CAUSES AND CONDITIONS OF ABUSE AND NEGLECT

{6} Mother argues that termination was improper because CYFD did not meet its burden to prove by clear and convincing evidence that (1) the causes and conditions of the abuse and neglect had not been remedied, and (2) it made reasonable efforts to assist Mother in remedying such causes and conditions. We address Mother’s arguments by determining if substantial evidence of a clear and convincing nature exists to support the termination, giving evidentiary deference to the district court’s findings. State ex rel. Children, Youth & Families Dep’t v. Patricia H., 2002-NMCA-061, ¶ 22, 132 N.M. 299, 47 P.3d 859.

{7} The Abuse and Neglect Act states CYFD’s burden, as relevant to this case, in NMSA 1978, § 32A-4-28(B)(2)(a), (b) (2005), which provides:

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 ... 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 that render the parent unable to properly care for the child. The court may find in some cases that efforts by the department or another agency are unnecessary, when:
(a) there is a clear showing that the efforts would be futile; or
(b) the parent has subjected the child to aggravated circumstances____

{8} Mother does not contest that her children were abused and neglected as required by the Act.

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Cite This Page — Counsel Stack

Bluebook (online)
2006 NMCA 113, 142 P.3d 978, 140 N.M. 390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-children-youth-families-department-v-athena-h-nmctapp-2006.