State Ex Rel. Children, Youth & Families Department v. Benjamin O.

2009 NMCA 39, 2009 NMCA 039, 146 N.M. 60
CourtNew Mexico Court of Appeals
DecidedMarch 13, 2009
Docket28,790
StatusPublished
Cited by17 cases

This text of 2009 NMCA 39 (State Ex Rel. Children, Youth & Families Department v. Benjamin O.) 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. Benjamin O., 2009 NMCA 39, 2009 NMCA 039, 146 N.M. 60 (N.M. Ct. App. 2009).

Opinion

OPINION

CASTILLO, Judge.

{1} This is the third in a series of appeals dealing with Father’s parental rights to his daughter. Father’s arguments on appeal fall into two categories. First, he asserts that the Children, Youth, and Families Department (CYFD) failed to prove abandonment by clear and convincing evidence. Second, Father contends that the district court failed to comply with the procedure outlined by this Court in its last opinion on this matter, State ex rel. Children, Youth & Families Dep’t. v. Benjamin O. (Benjamin 0.2007), 2007-NMCA-070, 141 N.M. 692, 160 P.3d 601. We hold that CYFD proved by clear and convincing evidence that Father abandoned Child and, further, that the district court followed our direction in Benjamin O.2007. Accordingly, we affirm the district court’s judgment terminating Father’s parental rights.

I. BACKGROUND

{2} This case has an extensive history, both with the district court and this Court. The two previous opinions filed by this Court have presented this history in detail. See Benjamin O.2007, 2007-NMCA-070, ¶¶ 2-22, 141 N.M. 692, 160 P.3d 601; State ex rel. Children, Youth & Families Dep’t v. Shawna a, 2005-NMCA-066, ¶¶2-6, 137 N.M. 687, 114 P.3d 367. We nevertheless begin with an overview of the procedural background of the case in order to place the current appeal in the context of past proceedings.

{3} In August 2003, CYFD filed an abuse and neglect petition against Father and Mother, and Child was taken into CYFD custody. The district court adjudicated Child to be abused or neglected as to both parents and ordered CYFD to implement a treatment plan. Both parents appealed that judgment. In the meantime, the matter proceeded, and the district court held the initial judicial review.

{4} As of July 2004, CYFD was still working toward reunification, but in October 2004, the district court approved CYFD’s change of plan to termination of parental rights and adoption. The change in plan was followed by a motion for termination of the parental rights of both parents. Father responded to the motion and argued that CYFD did not make reasonable efforts to assist him to change the circumstances that led to the abuse or neglect. During the termination of parental rights trial, this Court issued its opinion in Shawna C., which affirmed the adjudication of abuse or neglect as to Mother but reversed the adjudication as to Father. 2005-NMCA-066, ¶ 1, 137 N.M. 687, 114 P.3d 367.

{5} After Shawna C. reversed the adjudication of abuse or neglect, in May 2005 CYFD filed a motion for temporary custody of Child to allow further investigation, the reopening of the trial, and amendment of the motion for termination of parental rights. In June 2005, CYFD filed supplemental allegations (2005 supplemental allegations) against Father. The district court held a hearing and ordered that CYFD continue to implement the treatment plan and that Child remain in CYFD custody. Soon after this order, in September 2005 Child moved to Georgia to live with Father’s sister (Aunt).

{6} Six months after the filing of Shawna C. in November 2005, the trial for the termination of parental rights continued. CYFD reported to the district court that Father had not been in contact with Child since the previous July. In its proposed findings of facts and conclusions of law, CYFD stated that “[a]fter July[ ] 2005, [Father] ceased any contact with CYFD, ceased his visitation with [C]hild, ceased any efforts to maintain adequate housing for [C]hild and ceased any efforts to demonstrate the stability needed to care for [C]hild.” In addition, CYFD argued that it would be futile to make further efforts.

{7} On February 15, 2006, the district court entered an order terminating the parental rights of both parents. Father appealed the judgment; Mother did not. In April 2007, this Court filed Benjamin O.2007 and reversed the district court’s termination of Father’s parental rights. 2007-NMCA-070, ¶ 33, 141 N.M. 692, 160 P.3d 601. The case was remanded to the district court “to determine whether CYFD’s efforts with respect to Father’s housing and employment issues were reasonable, to determine whether CYFD made any efforts after the adjudication was reversed to facilitate any sort of reunification between Father and Child, and to make additional findings as necessary to comply with the procedure outlined” in the opinion. Id. ¶ 48.

{8} In July 2007, the district court issued an order addressing the mandate from this Court. The order required (1) that if CYFD chose to pursue termination against Father, it was to file a motion for retrial on the amended motion for termination of parental rights; (2) that if the district court did not find clear and convincing evidence of neglect by Father, CYFD should expedite the transition of Child to Father; and (3) that a permanency hearing be held within 30 days. CYFD filed a request for a retrial and a permanency hearing. Although CYFD presented the district court with an interim permanency hearing report dated August 1, 2007, the permanency hearing was not held until February 12, 2008.

{9} Before an order was filed based on the February 12 permanency hearing, CYFD filed a motion for leave to amend its earlier motion for the termination of Father’s parental rights and indicated that it would include allegations of abandonment. The district court granted CYFD’s motion to amend. In addition, the district court entered a permanency order and approved CYFD’s February 12 treatment plan, which designated “adoption” as the permanency plan for Child.

{10} On April 2, 2008, CYFD filed the amended motion for the termination of Father’s parental rights. The motion realleged the original allegations and the 2005 supplemental allegations. The motion also included new allegations of abandonment or presumptive abandonment. A trial was held from April 14 through April 16. The district court received written closing arguments from the parties and, thereafter, on May 27, 2008, entered judgment terminating Father’s parental rights. In support of the judgment, the district court also entered extensive findings of fact and conclusions of law, which we will review throughout our analysis. Father appeals the judgment. With this procedural history as background, we turn to Father’s arguments on appeal.

II. DISCUSSION

{11} We reorganize Father’s contentions for the purposes of discussion. As a preliminary matter, we address the standard of review — an issue disputed by the parties. We then turn to Father’s argument that he did not abandon Child within the meaning of “abandonment” under NMSA 1978, Section 32A-4-2(A) (1999). We conclude by directing our attention to Father’s assertion that the requirements of Benjamin 0.2007 were not followed by the district court in the final termination proceedings.

A. Standard of Review

{12} There is no dispute that Benjamin 0.2007 required the district court to make a series of findings by clear and convincing evidence. 2007-NMCA-070, ¶¶ 42-43, 141 N.M. 692, 160 P.3d 601. “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.” State ex rel.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State Ex Rel. CYFD v. Brandy A.
New Mexico Court of Appeals, 2021
State Ex Rel. CYFD v. Elisa L.
New Mexico Court of Appeals, 2020
State v. Michael H. (In Re Jayda'Mae S.)
417 P.3d 1130 (New Mexico Court of Appeals, 2017)
State ex rel. CYFD v. William C., Jr.
New Mexico Court of Appeals, 2017
State Ex Rel. Children, Youth & Families Department v. Keon H.
2017 NMCA 004 (New Mexico Court of Appeals, 2016)
State ex rel. CYFD v. Keon H.
2017 NMCA 4 (New Mexico Court of Appeals, 2016)
State Ex Rel. Children, Youth & Families Department v. Yodell B.
2016 NMCA 029 (New Mexico Court of Appeals, 2015)
State ex rel. Children, Youth & Families Department v. Maurice H.
2014 NMSC 034 (New Mexico Supreme Court, 2014)
In the Matter of Grace H.
New Mexico Supreme Court, 2014
State ex rel. CYFD v. Christopher B.
2014 NMCA 16 (New Mexico Court of Appeals, 2013)
State Ex Rel. Children, Youth & Families Department v. Christopher B.
2014 NMCA 016 (New Mexico Court of Appeals, 2013)
State of Nm Ex Rel. Cyfd v. Benjamin O.
206 P.3d 171 (New Mexico Court of Appeals, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
2009 NMCA 39, 2009 NMCA 039, 146 N.M. 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-children-youth-families-department-v-benjamin-o-nmctapp-2009.