State ex rel. Children, Youth & Families Department v. Browind C.

2007 NMCA 023, 152 P.3d 153, 141 N.M. 166
CourtNew Mexico Court of Appeals
DecidedDecember 22, 2006
DocketNo. 26,196
StatusPublished
Cited by26 cases

This text of 2007 NMCA 023 (State ex rel. Children, Youth & Families Department v. Browind C.) 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. Browind C., 2007 NMCA 023, 152 P.3d 153, 141 N.M. 166 (N.M. Ct. App. 2006).

Opinion

OPINION

CASTILLO, Judge.

{1} Appellant, Browind C. (Mother), appeals the trial court’s judgment terminating her parental rights to her daughter, Lovina B. (Child). This case requires us to evaluate the procedure due parents under the Abuse and Neglect Act (Act), NMSA 1978, §§ 32A-4-1 to -34 (1993, as amended through 2005), when a permanent guardianship is revoked. After review of the pertinent statutes and relevant case law, we conclude that Mother’s due process rights were not violated. Mother had adequate opportunities to be heard, and substantial evidence supported the trial court’s determinations regarding efforts by CYFD to reunify Mother with Child. Accordingly, we affirm.

I. BACKGROUND

{2} We begin with a chronology of the proceedings, organized by the months and years in which three sets of factual allegations were filed in regard to the abuse or neglect of Child.

A. June 1999 Allegations

{3} The Children, Youth and Families Department (CYFD) initially filed a neglect and abuse petition regarding Child against Mother in June 1999, when Child was almost two and a half years old. The affidavit supporting the petition alleged that Mother, who was five to six months pregnant, was using illegal drugs, which affected her ability to parent. The affidavit recommended that legal and physical custody of Child be granted to CYFD, particularly in light of CYFD’s previous involvement with Mother and her alleged neglect of Child’s older siblings, which began in 1992. The trial court ordered that custody of Child be given to CYFD in an ex parte custody order. See § 32A-4-16. After the requisite ten-day custody hearing, the court found probable cause to believe that no parent, guardian, custodian, or other person was able or willing to provide the necessary supervision and care for Child and that her remaining in the home would be contrary to Child’s best interest. See § 32A-4-18. The court ordered that legal custody remain with CYFD.

{4} Mother entered a voluntary plea of no contest at the adjudicatory hearing as to the allegations that Child was without proper parental care, control, and supervision. See § 32A-4-19. In the stipulated adjudication judgment filed September 1999, the trial court found that Child was neglected and/or abused, as defined in the Children’s Code, on the basis of the facts alleged in the affidavit supporting the ex parte custody order. The court ordered legal custody to remain with CYFD and further ordered CYFD to implement, and Mother to participate in, the proposed treatment plan. After a dispositional hearing, the trial court found that CYFD made and continued to make reasonable efforts to reunify Child with Mother but that it was in the best interest of Child to remain in the custody of CYFD. See § 32A-4-22(A)(9).

{5} In January 2000, CYFD filed a motion asking the trial court to appoint Child’s maternal grandmother (Grandmother) as Child’s permanent guardian. See §§ 32A-A-31, -32. Mother supported Grandmother’s appointment as permanent guardian. In the order granting guardianship, the court adopted the findings in CYFD’s motion for permanent guardianship. The court further found that reasonable efforts had been made to reunite the family, that further efforts by CYFD would be unproductive at that time, and that neither reunification nor termination of parental rights was in Child’s best interests at that time. The court granted legal custody of Child to Grandmother who was “vested with all the rights and responsibilities of a parent with respect to [Child].” The court expressly retained jurisdiction to enforce, revoke, or modify its order. See § 32A-4-32(H)-(K). The court found that the reasons for CYFD’s intervention had been addressed by the granting of permanent guardianship to grandmother, and the court therefore relieved the attorneys of further responsibility in the matter by dismissing the abuse and neglect petition without prejudice.

B. November 2001 Allegations

{6} More than twenty months after Grandmother was appointed Child’s permanent guardian, CYFD filed a new petition, alleging neglect and/or abuse of Child and naming Mother, Father, and Grandmother as respondents. The affidavit supporting the petition in the new cause alleged that Grandmother “was using heroin and nodding off while driving with [Child] in the truck” and that Mother was living in the home and using illegal drugs in the Child’s presence. The affidavit further stated that Grandmother admitted to using heroin and methadone, admitted that Mother had been using drugs in Child’s presence, and admitted that Mother left “drug paraphernalia [lying] around where [Child could] get hold of it.” The trial court issued an ex parte custody order transferring custody from Grandmother to CYFD. The court found that probable cause existed to believe Child was abused or neglected and that her remaining in Grandmother’s home would be contrary to Child’s welfare because of Grandmother’s drug use.

{7} After a ten-day custody hearing, at which Mother’s attorney was present, the trial court issued a custody hearing order providing that legal and physical custody of Child should remain with CYFD. The court found that CYFD was excused from making reasonable efforts to prevent Child’s removal from Grandmother’s home because of her operation of a vehicle while under the influence of heroin with Child in the vehicle. The court also found that CYFD was excused from making reasonable efforts to place the child with Mother because (1) Mother had “no current legal right to care for the child” as a result of Grandmother’s appointment as Child’s permanent guardian, (2) Mother continued to use drugs, and (3) CYFD planned to move for revocation of Grandmother’s permanent guardianship and then move for termination of parental rights because Mother had failed to participate in treatment plans ordered by the court in the first abuse and neglect cause concerning Child. The trial court incorporated the facts alleged in the affidavit supporting the ex parte custody order and the facts pleaded in the abuse and neglect petition. Subsequently, CYFD filed an amended petition, which included additional facts supporting allegations of abuse and neglect. One week later, CYFD filed a motion to revoke Grandmother’s permanent guardianship, see § 32A-4-32(I), and a motion to revive and reinstate the first neglect and abuse cause of action, pursuant to NMSA 1978, § 32A-1-18(A) (1995) (“When it appears from the facts during the course of any proceeding under the Children’s Code that some finding or remedy other than or in addition to those indicated by the petition or motion are appropriate, the court may, either on motion by the children’s court attorney or that of counsel for the child, amend the petition or motion and proceed to hear and determine the additional or other issues, findings or remedies as though originally properly sought.” (citation omitted)). Counsel for all parties stipulated to the filing of both motions.

{8} In the petition for extension of time filed in mid-January 2002, CYFD explained its actions in filing a new cause of action and the reasons for the motion to revive and reinstate the original cause. The new cause of action was mistakenly filed by another children’s court attorney while the regularly assigned attorney was on vacation.

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Cite This Page — Counsel Stack

Bluebook (online)
2007 NMCA 023, 152 P.3d 153, 141 N.M. 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-children-youth-families-department-v-browind-c-nmctapp-2006.