State ex rel. Children, Youth & Families Department v. Jerry K.

2015 NMCA 047, 7 N.M. 654
CourtNew Mexico Court of Appeals
DecidedApril 15, 2015
DocketNo. 35,150; Docket No. 33,341
StatusPublished
Cited by5 cases

This text of 2015 NMCA 047 (State ex rel. Children, Youth & Families Department v. Jerry K.) 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. Jerry K., 2015 NMCA 047, 7 N.M. 654 (N.M. Ct. App. 2015).

Opinion

OPINION

SUTIN, Judge.

Jerry K. (Father) appeals the termination of his parental rights as to his two daughters (Children). The Children, Youth and Families Department (the Department) gained legal custody of Children who were held to be “neglected” by virtue ofFather’s incarceration for crimes unrelated to Children. • Father’s parental rights were terminated after he was sentenced to thirty-five years in prison.

Father argues that his fundamental right to parent Children was violated by the Department’s refusal to place Children according to his expressed preference of an adoptive home. He also argues that the district court improperly terminated his parental rights after erroneously excluding evidence of his efforts to effectuate his desired placement for Children and of the Department’s failure to place Children according to his wishes. In Father’s view, had the excluded evidence been admitted, it would have established that Father was able to remedy the causes and conditions of neglect but that the Department did not make reasonable efforts to assist him in doing so. Underlying Father’s argument is his desire to have his parental rights restored and to regain legal custody so that he may consent to Children’s adoption by a couple that Father considers to be akin to his and Children’s family.

We hold the record does not support Father’s argument that the district court’s order to terminate his parental rights was affected by the allegedly erroneous evidentiary ruling. We conclude that, under the circumstances of this case, the Department’s decision to not place Children according to Father’s recommendation does not warrant reversal of the district court’s judgment terminating his parental rights. We affirm.

BACKGROUND

Father had sole custody of Children; Children’s mother was, at all times relevant to this appeal, not involved in Children’s lives (with the exception of having sent Children one letter), and she is not a party in this appeal. On April 8,2009, Father was arrested in Clovis, New Mexico, pursuant to a warrant issued by the State of Missouri for having allegedly perpetrated a number of sex crimes against his ex-girlfriend’s fourteen-year-old daughter. According to a St. Louis, Missouri police detective with whom Donald Graves, a Department social worker, spoke to on the phone, Father had fled Missouri, thereby evading investigation. Because law enforcement in Clovis who arrested Father learned from Steven Schultze that Children had “no family members in the local area” that could care for Children, they placed Children in the Department’s custody.

At the time of Father’s arrest, Father and Children lived in the home of Mr. Schultze, who was working in a temporary job as an Administrator/Director for the Clovis ChristianSchool. Mr. Schultze and his wife, Lois (who did not live in Clovis while her husband was temporarily employed there), had a long-standing relationship with Father, and although they were not biologically related, the Schultzes considered themselves Father’s “family,” and Father described the Schultzes as his former legal guardians. While Father and Children lived with Mr. Schultze in Clovis, Father’s ex-girlfriend contacted Mr. Schultze via e-mail regarding Father’s alleged criminal sexual activity perpetrated against her daughter; however, Mr. Schultze did not believe that Father had committed the crimes. Despite a criminal investigation and a temporary suspension from his job in connection with having allowed Father to stay at his house in Clovis while he was a “fugitive,” Mr. Schultze was not criminally charged, nor was his employment terminated as a result of having allowed Father to live with him during that time.

On the day ofFather’s arrest, Mr. Graves interviewed Father regarding placement options for Children. Father told Mr. Graves that Mr. Schultze, whom Children knew and called “uncle,” had a letter written by Father that granted Mr. Schultze guardianship of Children in the event that something happened to Father or he was unable to care for Children; however, this letter was never found, and later, Mr. Schultze claimed to have no knowledge of it. Father also provided Mr. Graves with information about Father’s brother and sister-in-law in Colorado with whom Children could stay while Father returned to Missouri to “clear up the situation” of the then-pending criminal charges. Additionally, Father provided the name of another couple, Dean and Dezra Turvaville, as possible caretakers for Children.

After his interview with Father, Mr. Graves contacted Father’s brother and sister-in-law who explained thatFather’s “plan when he was staying with them” was that they would “get. . . [Cjhildren as long as [Father] gives ... permission.” Regarding the other possible caretakers for Children, namely Mr. Schultze and the Turvavilles, Mr. Graves stated in his affidavit for an ex parte custody order that the Department could not place Children in their homes without “more information.” Mr. Graves also stated in his affidavit that he explained to Fatherthat Children “were placed in custody because there were no family members in the local area and Mr. Schultze is not a [blood] relative[.]”

On November 3, 2009, the district court concluded its adjudicatory hearing. Father pleaded no contest to neglect pursuant to NMSA 1978, Section 32A-4-2(E)(4) (1999, amended 2009), which defines a “neglected child” as one whose parent “is unable to discharge that person’s responsibilities to and for the child because of incarceration[.]” At the adjudicatory hearing, the district court adopted the Department’s treatment plan that included, in relevant part, the following information. The Department had located Children’s mother and was awaiting the results of an assessment to determine whether she could care for Children. Until that assessment was done, Children would remain with their Department-chosen foster home instead of with Father’s brother and sister-in-law, who wished to “gain custody” of Children and who had been approved as “a viable placement option[.]” The Department’s treatment plan also noted that Father had been trying to assist the Department in finding permanence for Children while he was incarcerated and that Father “seemfed] to have a strong concern and care for . . . [C]hildren.”

Children’s mother sent one letter to Children, in August 2009, upon the Department’s request, but beyond that she failed to respond to the Department’s attempt to assess the viability of placing Children with her; ultimately the Department was unable to locate her, and her rights were later terminated. In December 2009, Children were placed with Father’s brother and sister-in-law in Colorado. In September 2010, Father was sentenced to thirty-five years in a Missouri prison. After Father was sentenced, Father’s brother and sister-in-law advised the Department that they did not intend to serve as a permanent placement option for Children and that they would only keep Children until the Department was able to find a new placement.

In October 2010, the district court held a permanency review hearing.

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Bluebook (online)
2015 NMCA 047, 7 N.M. 654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-children-youth-families-department-v-jerry-k-nmctapp-2015.