32A-4-28.  Termination of parental rights; adoption decree.

Amendment Notes. 

The 2005 amendment, effective June 17, 2005, deleted Paragraph B(2)(c), which formerly read: “the parental rights of the parent to a sibling of the child have been terminated involuntarily”.

Notes to Decisions

      Generally.

      Abandonment.

Termination of the father's parental rights based on a finding of abandonment was improper, because the record supported a finding that the father was present prior to termination and that he expressed a legitimate desire to take responsibility for the child. State ex rel. Children, Youth, & Families Dep't v. Alfonso M.-E. (In re Uriah F.-M.), 2016-NMCA-021, 366 P.3d 282, 2015 N.M. App. LEXIS 129 (N.M. Ct. App. 2015).

      Abuse of children.

Trial court’s decision to terminate a couple’s parental rights as to four of their eight children was proper under 32A-4-28B(2) NMSA 1978 where there was clear and convincing evidence that the parents abused and neglected the four children. State ex rel. Children, Youth & Families Dep't v. David F. (In re Annette F.), 1996-NMCA-018, 121 N.M. 341, 911 P.2d 235, 1995 N.M. App. LEXIS 165 (N.M. Ct. App. 1995), cert. denied, 121 N.M. 242, 910 P.2d 318, 1996 N.M. LEXIS 44 (N.M. 1996).

      Aggravated circumstances.

Mother’s right to due process was not violated by the termination of her parental rights based on the district court’s finding that her child had been subjected to aggravated circumstances because the mother’s parental rights to a sibling child had already been terminated by the court; the mother continued to use drugs and remained unemployed and without a home during the pendency of the case. There was no risk of an erroneous deprivation of her parental rights while her appeal in the prior termination case was pending, as the mother did not dispute the clear and convincing evidence that supported the court’s decision to terminate her parental rights under Subsection B(2) of this section. State ex rel. Children, Youth & Families Dep't v. Raquel M., 2013-NMCA-061, 303 P.3d 865, 2013 N.M. App. LEXIS 30 (N.M. Ct. App.), cert. quashed, 308 P.3d 134, 2013 N.M. LEXIS 342 (N.M. 2013).

Father’s parental rights were properly terminated on the basis of aggravated circumstances because the department introduced into the record the previous judgment terminating the father’s parental rights to another child and argued that it occurred under similar circumstances involving drugs and criminal activity. The father left the children in the care of another, was involved in criminal activity, and became unavailable due to his subsequent incarceration. State ex rel. Children, Youth and Families Dep't v. William M., 2007-NMCA-055, 141 N.M. 765, 161 P.3d 262, 2007 N.M. App. LEXIS 36 (N.M. Ct. App.), cert. denied, 141 N.M. 762, 161 P.3d 259, 2007 N.M. LEXIS 219 (N.M. 2007).

      Applicability.

      Authority of court.

      Authority of department of human services.

Mother’s affidavit, by raising the concern that the youth and families department set her up for failure by keeping her from the children and by holding treatment meetings where she could not attend them, put the department’s reasonable efforts under 32A-4-28B(2) NMSA 1978 in dispute. State ex rel. Children, Youth & Families Dep't v. Erika M. (In re R.C.), 1999-NMCA-036, 126 N.M. 760, 975 P.2d 373, 1999 N.M. App. LEXIS 12 (N.M. Ct. App. 1999).

Mother’s claim that the New Mexico Children, Youth, and Families Department failed to offer clear and convincing evidence in support of termination of her parental rights, 32A-4-28B(2) NMSA 1978, was without merit where she did not seek domestic counseling as recommended and while the court recognized the difficulty of her situation, the focus in termination proceedings was on the children’s needs and welfare, 32A-4-28A NMSA 1978. State ex rel. Children,Youth & Families Dep't v. Tammy S., 1999-NMCA-009, 126 N.M. 664, 974 P.2d 158, 1998 N.M. App. LEXIS 169 (N.M. Ct. App. 1998).

      Best interests.

Language disparity between the father, who spoke Spanish, and the 18-month old child, who spoke English, was not an insurmountable obstacle to reunification making termination of the father's parental rights in the child's best interest, and the failure of the Children, Youth and Families Department to make sufficient reasonable efforts to reunify precluded a proper best interest finding. State ex rel. Children, Youth, & Families Dep't v. Alfonso M.-E. (In re Uriah F.-M.), 2016-NMCA-021, 366 P.3d 282, 2015 N.M. App. LEXIS 129 (N.M. Ct. App. 2015).

      Burden of proof.

Under 32A-4-28B(2) the state is required to prove that the child in question is neglected or abused and that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future; based on the mother’s continued abuse of drugs, and her incarceration both for forgery to obtain money to buy drugs and for giving birth to this child with cocaine in his system, there was sufficient evidence to support termination of parental rights. State ex rel. Children, Youth & Families Dep't v. Amy B., 2003-NMCA-017, 133 N.M. 136, 61 P.3d 845, 2002 N.M. App. LEXIS 102 (N.M. Ct. App. 2002).

Before parental rights may be terminated, the New Mexico children, youth, and families department must demonstrate that the causes of the neglect or abuse are unlikely to change in the foreseeable future, despite the reasonable efforts of the department to assist the parent pursuant to 32A-4-28B(2) NMSA 1978. State ex rel. Children, Youth & Families Dep't, 2002-NMCA-061, 132 N.M. 299, 47 P.3d 859, 2002 N.M. App. LEXIS 46 (N.M. Ct. App. 2002).

      Child custody and visitation.

      Child support.

New Mexico Legislature had no intent to change the fundamental nature and effect of an order terminating rights when it amended the New Mexico Children’s Code in 1985; the fundamental and terrible act of severing the parent-child relationship cuts off all connection between them except as specifically excepted by the Legislature. Therefore, a father was improperly ordered to pay child support after his parental rights were terminated. Aeda v. Aeda, 2013-NMCA-095, 310 P.3d 646, 2013 N.M. App. LEXIS 71 (N.M. Ct. App.), cert. quashed, 313 P.3d 251, 2013 N.M. LEXIS 432 (N.M. 2013).

      Children.

Mother’s due process rights were not violated when a district court denied a motion to continue a termination of parental rights proceeding; the district court attempted to ensure the mother’s participation in the proceedings, it was not in the best interest of the minor children to continue the proceedings indefinitely, and there was clear and convincing evidence to support the termination. State ex rel. Children, Youth & Families Dep't v. Mafin M. (In re Chance M.), 2003-NMSC-015, 133 N.M. 827, 70 P.3d 1266, 2003 N.M. LEXIS 172 (N.M. 2003).

Because the Children’s Court erred in not ascertaining, as required by 32A-5-21A(5) and (6) NMSA 1978, whether a mother voluntarily, knowingly, and intelligently waived her right to contest a proposed termination of her parental rights, and because the use by the Children, Youth, and Families Department (New Mexico) of a proffer of evidence was an improper means of meeting its burden of establishing grounds for termination by clear and convincing proof, 32A-4-28A and B, and 32A-4-29J NMSA 1978, the termination of the mother’s parental rights was reversed and remanded. State ex rel. Children, Youth & Families Dep't v. Stella P. (In re Diamond-Jerome P.), 1999-NMCA-100, 127 N.M. 699, 986 P.2d 495, 1999 N.M. App. LEXIS 70 (N.M. Ct. App. 1999).

      Construction.

The term “foreseeable future” in 32A-4-28B(2) NMSA 1978 refers to corrective change within a reasonably definite time or within the near future. State ex rel. Children, Youth & Families Dep't, 2002-NMCA-061, 132 N.M. 299, 47 P.3d 859, 2002 N.M. App. LEXIS 46 (N.M. Ct. App. 2002).

In assessing the duration of time during which reasonable efforts must be made to assist a parent before that parent’s rights to a child are terminated, the time period of 15 months described in the Adoption and Safe Families Act for “time-limited reunification services” as described in 42 U.S.C.S. §§ 629a(a)(7)(A), (B) provides New Mexico state courts with some guidance; in so doing, a court must keep in mind that the use of such a guideline needs to remain flexible and must be harmonized with the requirements of New Mexico law. State ex rel. Children, Youth & Families Dep't, 2002-NMCA-061, 132 N.M. 299, 47 P.3d 859, 2002 N.M. App. LEXIS 46 (N.M. Ct. App. 2002).

In a proceeding to terminate parental rights, what constitutes reasonable efforts to assist a parent may vary with a number of factors, such as the level of cooperation demonstrated by the parent and the recalcitrance of the problems that render the parent unable to provide adequate parenting. State ex rel. Children, Youth & Families Dep't, 2002-NMCA-061, 132 N.M. 299, 47 P.3d 859, 2002 N.M. App. LEXIS 46 (N.M. Ct. App. 2002).

      Constitutionality.

New Mexico Abuse and Neglect Act explicitly provides for terminating parental rights, but not kinship guardianships. Therefore, a district court erred by dismissing a kinship guardian from a case where her status had not yet been terminated. State ex rel. Children, Youth & Families Dep't v. Djamila B., 2014-NMCA-045, 322 P.3d 444, 2014 N.M. App. LEXIS 11 (N.M. Ct. App.), aff'd on other grounds, 2015-NMSC-003, 342 P.3d 698, 2014 N.M. LEXIS 393 (N.M. 2014).

Termination of a kinship guardianship must be one of the prerequisites to a valid adoption because of the guardian's legal relationship to the child, and, absent termination of the kinship guardianship, the guardian has a right to be heard about whether adoption is in the best interest of the children. Since the result of an adoption is the creation of the legal relationship of parent and child, any existing kinship guardianship relation with children must necessarily be terminated before the adoption can be completed; even if the adoption takes place under the authority of the New Mexico Abuse and Neglect Act, the requirements have to be satisfied. State ex rel. Children, Youth & Families Dep't v. Djamila B., 2014-NMCA-045, 322 P.3d 444, 2014 N.M. App. LEXIS 11 (N.M. Ct. App.), aff'd on other grounds, 2015-NMSC-003, 342 P.3d 698, 2014 N.M. LEXIS 393 (N.M. 2014).

The provision of 32A-4-2C, 32A-4-22C and 32A-4-28B(2), that the fact of a previous termination of parental rights is an aggravating factor in subsequent actions for termination of parental rights, did not deny the mother due process; the provision is only one of several factors found by the court in exercising discretion to relieve the agency of reunification efforts. State ex rel. Children, Youth & Families Dep't v. Amy B., 2003-NMCA-017, 133 N.M. 136, 61 P.3d 845, 2002 N.M. App. LEXIS 102 (N.M. Ct. App. 2002).

      Construction with other law.

      Counsel.

In proceedings to terminate parental rights due to adoption or for abuse and neglect, a court must advise a parent that he or she is entitled to have counsel appointed if indigency can be established. Chris L. v. Vanessa O., 2013-NMCA-107, 320 P.3d 16, 2013 N.M. App. LEXIS 82 (N.M. Ct. App. 2013).

      Custody.

Although a mother corrected some parenting problems, she continued to use drugs, commit crimes, and choose partners who committed domestic violence; thus, in accordance with 32A-4-28A and B(2) NMSA 1978, the trial court properly terminated a mother’s parental rights to her two daughters. State ex rel. Children, Youth & Families Dept. v. Vanessa C., 2000-NMCA-025, 128 N.M. 701, 997 P.2d 833, 2000 N.M. App. LEXIS 13 (N.M. Ct. App.), cert. denied, 128 N.M. 690, 997 P.2d 822, 2000 N.M. LEXIS 119 (N.M. 2000).

      Definitions.

Meaning of “serious harm” under former 40-7-4A(3) NMSA 1978 is an injury as would give rise to apprehension or attended with danger; whether “serious harm” exists must be determined according to the particular facts of each case. State Health & Social Servs. Dep't v. Smith, 1979-NMCA-004, 93 N.M. 348, 600 P.2d 294, 1979 N.M. App. LEXIS 858 (N.M. Ct. App.), cert. denied, 92 N.M. 532, 591 P.2d 286, 1979 N.M. LEXIS 1442 (N.M. 1979).

      Disabled parents.

To preserve issues concerning violations of the  42 U.S.C.S. § 12132 of the Americans with Disabilities Act in a termination of parental rights proceeding, the parent bears the initial burden of asserting that the parent is a qualified individual with a disability under  42 U.S.C.S. § 12131(2).  State ex rel. Children, Youth & Families Dep't v. Johnny S., 2009-NMCA-032, 145 N.M. 754, 204 P.3d 769, 2009 N.M. App. LEXIS 6 (N.M. Ct. App. 2009).

Determining what accommodation may be reasonable once 42 U.S.C.S. § 12132 of the Americans with Disabilities Act is found to apply in a termination of parental rights case calls for a collaborative effort between the parents, the New Mexico children, youth & families department, and the district court. But the initial burden to raise and argue the issues, as early in the case as possible, lies with the parents and their counsel. State ex rel. Children, Youth & Families Dep't v. Johnny S., 2009-NMCA-032, 145 N.M. 754, 204 P.3d 769, 2009 N.M. App. LEXIS 6 (N.M. Ct. App. 2009).

On appeal of the order terminating the father’s parental rights based on findings of both abuse/neglect and presumptive abandonment, the court of appeals of New Mexico could not review the father’s claim that the New Mexico Children, Youth & Families Department failed to adequately accommodate his mental impairments, as required by 42 U.S.C.S. § 12132 of the Americans with Disabilities Act (ADA). The father failed to preserve the issue in the district court. State ex rel. Children, Youth & Families Dep't v. Johnny S., 2009-NMCA-032, 145 N.M. 754, 204 P.3d 769, 2009 N.M. App. LEXIS 6 (N.M. Ct. App. 2009).

      Discretion.

It was reasonable for the trial court to have found, pursuant to 32A-4-28B NMSA 1978, that further efforts on the part of the New Mexico Children, Youth, and Families Department regarding a father in a parental termination proceeding were futile where the father did not establish a stable residence or employment as prescribed in the treatment plan, lived in four states while the children were in custody, was arrested twice, the mother had a restraining order placed on him, and his location was unknown. State ex rel. Children,Youth & Families Dep't v. Tammy S., 1999-NMCA-009, 126 N.M. 664, 974 P.2d 158, 1998 N.M. App. LEXIS 169 (N.M. Ct. App. 1998).

      Due process.

Father’s due process rights were not violated by the district court’s termination of his parental rights without first providing him with a notice and an opportunity to participate at the permanency stage of the abuse and neglect proceedings because under the Mathews v. Eldridge analysis, the father failed to demonstrate that the outcome of the termination, based on abandonment, might have been different had he been present at the permanency hearing. State ex rel. Children v. Christopher B., 2014-NMCA-016, 316 P.3d 918, 2013 N.M. App. LEXIS 112 (N.M. Ct. App. 2013).

In a parental rights termination case, a father’s right to due process was not denied for failure of the State to provide him with written materials in Spanish because the father was represented by a court-appointed attorney who spoke Spanish and could discuss the case with him, counsel translated portions of the documents for him, the father had the assistance of a certified interpreter, and the parties and the trial court specifically discussed the treatment plan, the children’s acute problems, and the father’s need to become more involved in the children’s lives if he wanted to regain custody. State ex rel. Children, Youth and Families Dep't v. William M., 2007-NMCA-055, 141 N.M. 765, 161 P.3d 262, 2007 N.M. App. LEXIS 36 (N.M. Ct. App.), cert. denied, 141 N.M. 762, 161 P.3d 259, 2007 N.M. LEXIS 219 (N.M. 2007).

In a parental rights termination proceeding pursuant to 32A-4-28A NMSA 1978, a father’s due process rights were not violated where he was incarcerated; he was given an opportunity to participate by telephone, but he insisted on being present in the courtroom. State ex rel. Children,Youth & Families Dep't v. Christopher L., 2003-NMCA-068, 133 N.M. 653, 68 P.3d 199, 2003 N.M. App. LEXIS 23 (N.M. Ct. App. 2003).

      Evidence.

Evidence that the New Mexico Children, Youth and Families Department offered a mother numerous and various treatment modalities recommended by trained professionals, and that she indicated assent to the proposed treatment plan, was sufficient to satisfy 32A-4-28B(2) NMSA 1978 in a parental rights termination case. State ex rel. Human Servs. Dep't v. Penny J., 1994-NMCA-143, 119 N.M. 328, 890 P.2d 389, 1994 N.M. App. LEXIS 134 (N.M. Ct. App.), cert. denied, 119 N.M. 20, 888 P.2d 466, 1994 N.M. LEXIS 449 (N.M. 1994).

           —Insufficient.

Trial court erred in terminating the father's parental rights, because there was insufficient evidence the conditions of neglect were unlikely to change, as the Children, Youth And Families Department could not rely on a lack of evidence that conditions, including substance abuse and mental health issues, changed to support termination. State ex rel. Children, Youth, & Families Dep't v. Alfonso M.-E. (In re Uriah F.-M.), 2016-NMCA-021, 366 P.3d 282, 2015 N.M. App. LEXIS 129 (N.M. Ct. App. 2015).

In an adoption proceeding, where there was no determination that a father was unfit, that the child was neglected under former 32-1-3L(2) NMSA 1978, that the father presumptively abandoned the child under former 32-1-54B(3), (4) NMSA 1978; or that there was implied consent to the adoption so as to terminate his parental rights under former 40-7-36A(2)(a) NMSA 1978; a trial court erred in granting a petition to adopt the child. Roth v. Bookert (In re J.J.B.), 1993-NMCA-145, 117 N.M. 31, 868 P.2d 1256, 1993 N.M. App. LEXIS 161 (N.M. Ct. App. 1993), aff'd in part, 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, 1995 N.M. LEXIS 133 (N.M. 1995).

Where the department of human services conceded that, in its action seeking to terminate a mother’s parental rights, there was not substantial evidence in the record to support findings justifying termination, a district court erred in terminating the mother’s parental rights. Additionally the department offered testimony about the existing and past foster homes of the four children since 1979; that evidence was irrelevant in determining whether the mother’s parental rights should have been terminated. State ex rel. Department of Human Servs. v. Natural Mother, 1981-NMCA-103, 96 N.M. 677, 634 P.2d 699, 1981 N.M. App. LEXIS 771 (N.M. Ct. App. 1981).

           —Relevant.

Natural parents’ objection at trial on a petition to terminate parental rights that the evidence presented by a psychiatrist to the effect that all three children had improved after being placed in foster care, called for an indication of preference and was not relevant in a proceeding to terminate parental rights, was properly overruled by the trial court; while it was clear that a trial court could not rest its decision on the financial status, size of a party’s residence, or the education and backgrounds of competing parties, evidence related to the alleviation of factors that had materially and adversely affected the physical, mental, and emotional welfare and needs of a child was relevant under former 40-7-4A NMSA 1978 and the fact that the testimony might not have been admissible for one purpose did not render it inadmissible for another purpose. Termination of Parental Rights of Reuben O. v. Department of Human Servs., 1986-NMCA-031, 104 N.M. 644, 725 P.2d 844, 1986 N.M. App. LEXIS 649 (N.M. Ct. App. 1986).

           —Substantial.

In a termination of parental rights proceeding, there was substantial evidence supporting the trial court’s finding that a mother was “unfit” under former 40-7-4A(3) NMSA 1978 where the mother failed to personally care for, support, educate, give moral and spiritual guidance to, and provide a home, love, and security for the child, where a consequence of the mother’s failure was the absence of a parent-child relationship and where the trial court could properly view the resulting harm as serious due to the turnover among the social workers supervising the child’s foster care arrangements, the child’s location with foster parents for over two years, and social workers’ unsuccessful efforts to restore a parent-child relationship through visitations. State Health & Social Servs. Dep't v. Smith, 1979-NMCA-004, 93 N.M. 348, 600 P.2d 294, 1979 N.M. App. LEXIS 858 (N.M. Ct. App.), cert. denied, 92 N.M. 532, 591 P.2d 286, 1979 N.M. LEXIS 1442 (N.M. 1979).

           —Sufficient.

Father’s parental rights were properly terminated on the basis that he was unlikely to properly parent the children in the foreseeable future because the father continued to ignore his parental responsibilities while incarcerated by making no efforts to contact the children or provide for them, the father denied a history of drug use and domestic violence, and the trial court heard testimony from several witnesses that it would be very difficult for the children to move to Florida given their extreme needs and lack of relationship with the father. State ex rel. Children, Youth and Families Dep't v. William M., 2007-NMCA-055, 141 N.M. 765, 161 P.3d 262, 2007 N.M. App. LEXIS 36 (N.M. Ct. App.), cert. denied, 141 N.M. 762, 161 P.3d 259, 2007 N.M. LEXIS 219 (N.M. 2007).

Trial court did not err in terminating a mother’s parental rights without requiring efforts at reunification where the mother’s parental rights to siblings were terminated, the mother was arrested and convicted of forging checks to obtain money to buy drugs and continued to abuse drugs, and the child at issue was born with cocaine in his system. State ex rel. Children, Youth & Families Dep't v. Amy B., 2003-NMCA-017, 133 N.M. 136, 61 P.3d 845, 2002 N.M. App. LEXIS 102 (N.M. Ct. App. 2002).

Sufficient evidence supported the district court’s conclusion that termination of a mother’s parental rights was in the best interest of the children, 32A-4-28B(1) NMSA 1978, where in light of the mother’s demonstrated intent to continue her relationship with the children’s father, there was sufficient evidence that the mother was unable to protect the children from the father’s abuse or to properly provide for them. State ex rel. Children,Youth & Families Dep't v. Tammy S., 1999-NMCA-009, 126 N.M. 664, 974 P.2d 158, 1998 N.M. App. LEXIS 169 (N.M. Ct. App. 1998).

Evidence that children had been removed from a father and mother because they had neglected and physically abused the children, exposed them to domestic violence, and made no efforts to comply with a state agency’s treatment plans or to participate in counseling and treatment programs was sufficient to show that termination of parental rights was in the best interests of the children; however, where the mother and father were jointly represented and counsel did not explain to the mother that her continued relationship with the father could affect her rights to her children, the termination of the mother’s parental rights was remanded to determine if she was afforded ineffective assistance of counsel. State ex rel. Children,Youth & Families Dep't v. Tammy S., 1999-NMCA-009, 126 N.M. 664, 974 P.2d 158, 1998 N.M. App. LEXIS 169 (N.M. Ct. App. 1998).

      Experts.

Psychologists who evaluated natural parents testified at a trial on a petition for termination of parental rights that it would be at least two years before the natural parents’ rehabilitation might have progressed sufficiently to permit returning the children to their parents, and while the psychologists noted that the parents had new motivation to change, both psychologists acknowledged that the parents’ had a history of repeated failures in their attempts to recover from heroin addiction and that a two-year wait could leave the children with further feelings of instability. The record, considered in toto, supported the trial court’s decision to terminate the parental rights of the parents by clear and convincing evidence under the provisions of former 40-7-4B(3) NMSA 1978. Termination of Parental Rights of Reuben O. v. Department of Human Servs., 1986-NMCA-031, 104 N.M. 644, 725 P.2d 844, 1986 N.M. App. LEXIS 649 (N.M. Ct. App. 1986).

      Finality.

      Findings.

Courts must focus on the effect of the parent’s conduct on the child, and not on any subjective intent to abandon the child, in determining whether to.terminate parental rights under 32A-4-28B(3) NMSA 1978. State ex rel. Children, Youth & Families Dep't v. John D., 1997-NMCA-019, 123 N.M. 114, 934 P.2d 308, 1997 N.M. App. LEXIS 10 (N.M. Ct. App. 1997).

           —Insufficient.

District court’s findings were insufficient to support its decision to terminate father’s parental rights, where there was no indication that the Children, Youth, and Families Department (CYFD) had attempted to assist the father with his housing and employment issues, or that it had considered placement with the father at all following a reversed abuse or neglect adjudication. State ex rel. Children, Youth & Families Dep't v. Benjamin O., 2007-NMCA-070, 141 N.M. 692, 160 P.3d 601, 2007 N.M. App. LEXIS 46 (N.M. Ct. App. 2007).

           —Sufficient.

In a proceeding to terminate a mother’s parental rights to her child, a trial court did not act unreasonably in concluding that corrective change was unlikely in the foreseeable future pursuant to 32A-4-28B(2) NMSA 1978 under circumstances where the child had already been in the custody of the New Mexico children, youth, and families department for over two years, the child was more fragile than other children, and expert testimony indicated that it would have taken at least a year to reintroduce the child to the mother’s household and that the reintroduction might not have been successful. State ex rel. Children, Youth & Families Dep't, 2002-NMCA-061, 132 N.M. 299, 47 P.3d 859, 2002 N.M. App. LEXIS 46 (N.M. Ct. App. 2002).

Failure of a mother and father to improve their unacceptable conduct justified the termination of their parental rights, pursuant to 32A-4-28B(2) NMSA 1978, because it was unlikely that their conduct would change in the foreseeable future. State ex rel. Children,Youth & Families Dep't v. Tammy S., 1999-NMCA-009, 126 N.M. 664, 974 P.2d 158, 1998 N.M. App. LEXIS 169 (N.M. Ct. App. 1998).

Trial court’s termination of a mother’s parental rights was supported by clear and convincing evidence: the mother left the children in the care of others who were not competent to care for them, she did not obtain medicine for her child when needed, she did not know their whereabouts, and she exposed the children to drug abuse and domestic violence. State v. Eventyr J. (In re Eventyr J.), 1995-NMCA-087, 120 N.M. 463, 902 P.2d 1066, 1995 N.M. App. LEXIS 85 (N.M. Ct. App. 1995).

Trial court was not required to make a separate finding of unfitness to terminate a mother’s parental rights. State v. Eventyr J. (In re Eventyr J.), 1995-NMCA-087, 120 N.M. 463, 902 P.2d 1066, 1995 N.M. App. LEXIS 85 (N.M. Ct. App. 1995).

      Guardian ad litem.

Guardian ad litem was not appointed as required for a child in a proceeding terminating a child’s natural father’s parental rights, and thus, the judgment had no binding affect. In re Adoption of Doe, 1984-NMCA-015, 101 N.M. 30, 677 P.2d 643, 1984 N.M. App. LEXIS 618 (N.M. Ct. App. 1984).

      Incarceration.

Evidence clearly and convincingly supported the termination of a father's parental rights because the conditions and causes were unlikely to change in the foreseeable future; the father did not complete treatment, he was repeatedly incarcerated, he had no stable housing for the children, and he did not maintain visitation. State ex rel. Children v. Nathan H., 2016-NMCA-043, 370 P.3d 782, 2016 N.M. App. LEXIS 1 (N.M. Ct. App. 2016).

      Jurisdiction.

      Loss of parental rights.

Trial court properly terminated mother’s parental rights to her children where the mother was incarcerated on federal drug charges for a period of five years. No matter what her defense, or what services she received, the overwhelming obstacle was that the children would be in foster care for well over five years until she could be available to care for them, with no guarantees that placement with her after her release would be in their best interest. There was no due process violation regarding her absence at the permanency hearings as she had a full opportunity to present evidence and examine witnesses at the termination hearing. State ex rel. Children, Youth & Families Dep't v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796, 2004 N.M. App. LEXIS 70 (N.M. Ct. App. 2004).

      Needs of the child.

      Neglect.

Termination of the father’s parental rights was inappropriate because the evidence did not support a determination that the conditions and causes of abuse and neglect were unlikely to change in the foreseeable future in light of the father’s substantial compliance with his treatment plan and progress toward change. State ex rel. Children, Youth & Families Dep't v. Lance K., 2009-NMCA-054, 146 N.M. 286, 209 P.3d 778, 2009 N.M. App. LEXIS 28 (N.M. Ct. App.), cert. denied, 146 N.M. 641, 2009 N.M. LEXIS 691 (N.M. 2009).

In terminating a father’s parental rights, a district court erred in concluding that he had neglected his children on the basis of his incarceration of almost two years and that he was unlikely to resolve the causes and conditions of his neglect in the foreseeable future because, given the father’s complete compliance with a treatment plan and significant progress towards change after his release, it could not be said that there was clear and convincing evidence to show that the causes and conditions of the neglect were unlikely to change. State ex rel. Children, Youth & Families Dep't v. Hector C., 2008-NMCA-079, 144 N.M. 222, 185 P.3d 1072, 2008 N.M. App. LEXIS 44 (N.M. Ct. App.), cert. denied, 144 N.M. 48, 183 P.3d 933, 2008 N.M. LEXIS 287 (N.M. 2008).

Father’s parental rights were properly terminated on the basis of neglect because the mother’s well-documented history of drug use and repeated referrals to the department indicated that the children were neglected or likely to be neglected if left in her primary care. The father made no arrangements, either before or after his incarceration, to protect the children from the mother, to provide care for the children, or to maintain contact with them. State ex rel. Children, Youth and Families Dep't v. William M., 2007-NMCA-055, 141 N.M. 765, 161 P.3d 262, 2007 N.M. App. LEXIS 36 (N.M. Ct. App.), cert. denied, 141 N.M. 762, 161 P.3d 259, 2007 N.M. LEXIS 219 (N.M. 2007).

      Parent-child relationship.

Termination of the father’s parental rights was inappropriate because the children, youth and families department failed to present evidence supporting a finding that the relationship between the father and the children had disintegrated. Even if there were such evidence, a doctor’s testimony regarding the attachment and relationship among the father and his two children effectively rebutted that evidence. State ex rel. Children, Youth & Families Dep't v. Lance K., 2009-NMCA-054, 146 N.M. 286, 209 P.3d 778, 2009 N.M. App. LEXIS 28 (N.M. Ct. App.), cert. denied, 146 N.M. 641, 2009 N.M. LEXIS 691 (N.M. 2009).

Disintegration of the parent-child relationship, as required for termination of parental rights pursuant to 32A-4-28B(3)(b) NMSA 1978, must be the fault of the parent. Where a mother claimed that conduct by foster parents and a children and families department with regard to her child contributed to the disintegration of the parent-child relationship, she raised a dispute of material fact sufficient to -Ufeat termination of her parental rights by summary judgment on the basis of constructive abandonment. State ex rel. Children, Youth & Families Dep't v. Erika M. (In re R.C.), 1999-NMCA-036, 126 N.M. 760, 975 P.2d 373, 1999 N.M. App. LEXIS 12 (N.M. Ct. App. 1999).

      Placement of child.

District court did not err in terminating a father's parental rights because the children were deemed “neglected” by virtue of the father's incarceration, the district court considered the father's desire to have the children placed with their fictive kin, and while the father could and did express his preferences in regard to the children's placement, once they were legal custodians of the Children, Youth, and Families Department, the father was not in a position to decide where or with whom the children would be placed.  State ex rel. Children, Youth & Families Dep't v. Jerry K., 2015-NMCA-047, 347 P.3d 724, 2015 N.M. App. LEXIS 3 (N.M. Ct. App.), cert. denied, 348 P.3d 694, 2015 N.M. LEXIS 107 (N.M. 2015).

      Pleadings.

      Presumptions.

In the context of an appeal from the termination of parental rights, under 32A-4-28A NMSA 1978, an appellate court views the evidence in the light most favorable to support the trial court’s findings and conclusions of law. State ex rel. Children,Youth & Families Dep't v. Christopher L., 2003-NMCA-068, 133 N.M. 653, 68 P.3d 199, 2003 N.M. App. LEXIS 23 (N.M. Ct. App. 2003).

Because evidence of the disintegration of the parent-child relationship is of no consequence if not caused by the parent’s conduct, the presumption of abandonment created by 32A-4-28B(3)(a)-(e) NMSA 1978 is completely rebutted by showing that a parent lacks responsibility for the destruction of the parent-child relationship. State ex rel. Children, Youth & Families Dep't v. John D., 1997-NMCA-019, 123 N.M. 114, 934 P.2d 308, 1997 N.M. App. LEXIS 10 (N.M. Ct. App. 1997).

Existence of the conditions set forth in 32A-4-28B(3) NMSA 1978  creates a rebuttable presumption of abandonment under 32A-4-28C NMSA 1978. State ex rel. Children, Youth & Families Dep't v. John D., 1997-NMCA-019, 123 N.M. 114, 934 P.2d 308, 1997 N.M. App. LEXIS 10 (N.M. Ct. App. 1997).

      Prior law.

      Question of law or fact.

In a termination of parental rights action, summary judgment was improperly granted in favor of the children, youth, and families Department because there was a genuine issue of material fact as to whether the Department met its burden under 32A-4-28B(2). State ex rel. Children, Youth & Families Dep't v. Erika M. (In re R.C.), 1999-NMCA-036, 126 N.M. 760, 975 P.2d 373, 1999 N.M. App. LEXIS 12 (N.M. Ct. App. 1999).

      Reasonable efforts.

Father’s parental rights were properly terminated on the basis that the department made reasonable efforts because the department maintained a permanency plan of reunification with a concurrent plan of placement with relatives throughout the father’s incarceration, the department maintained contact with the father both directly and through counsel, the father was encouraged to write to the children and later to send taped messages, and the department used the assistance of a Spanish-speaking social worker who met with the father in prison and on the telephone. State ex rel. Children, Youth and Families Dep't v. William M., 2007-NMCA-055, 141 N.M. 765, 161 P.3d 262, 2007 N.M. App. LEXIS 36 (N.M. Ct. App.), cert. denied, 141 N.M. 762, 161 P.3d 259, 2007 N.M. LEXIS 219 (N.M. 2007).

District court improperly terminated a father’s parental rights, where the social workers agreed that the father was motivated to comply with the directives of the Children, Youth & Families Department, and made some steps to improve his parenting skills, and the problem was mainly with the mother, because the record did not contain evidence that the district court could have properly found to be clear and convincing that the department made reasonable efforts to help father terminate his relationship with mother so he could become an adequate parent. State ex rel. Children, Youth & Families Dep't v. Joseph M., 2006-NMCA-029, 139 N.M. 137, 130 P.3d 198, 2006 N.M. App. LEXIS 6 (N.M. Ct. App. 2006).

      Requirements.

Children's court erred by ignoring its earlier adjudication of neglect in an abuse and neglect proceeding and by changing course, absent a dispositional hearing based on its finding of neglect, in allowing termination of parental rights by presumptive abandonment, as it had already adjudicated neglect and the parent wished to make efforts toward reunification by pursuing a treatment plan as the court and the New Mexico Children, Youth and Families Department had discussed at the time of the adjudication of neglect. State ex rel. Youth & Families Dep't v. Melvin C., 2015-NMCA-067, 350 P.3d 1251, 2015 N.M. App. LEXIS 49 (N.M. Ct. App. 2015).

32A-4-28B(2) NMSA 1978 requires the Children, Youth and Families Department (New Mexico) to establish the reasonableness of efforts it may have made to assist a parent. State ex rel. Children, Youth & Families Dep't v. John D., 1997-NMCA-019, 123 N.M. 114, 934 P.2d 308, 1997 N.M. App. LEXIS 10 (N.M. Ct. App. 1997).

Clear and convincing evidence was established by the Children, Youth and Families Department (New Mexico) of the existence of the conditions under  32A-4-28B(3)(a)-(e) NMSA 1978 for termination of parental rights, as such conditions created a rebuttable presumption of abandonment which the mother failed to overcome; she force-fed the child until the child would vomit, struck the child resulting in bruises, inflicted cigarette burns on the child, and threatened the child even during supervised visitation. State ex rel. Children, Youth & Families Dep't v. John D., 1997-NMCA-019, 123 N.M. 114, 934 P.2d 308, 1997 N.M. App. LEXIS 10 (N.M. Ct. App. 1997).

32A-4-28B(3) NMSA 1978 does not require the Children, Youth and Families Department (New Mexico) to establish the reasonableness of efforts it may have made to assist a parent. State ex rel. Children, Youth & Families Dep't v. John D., 1997-NMCA-019, 123 N.M. 114, 934 P.2d 308, 1997 N.M. App. LEXIS 10 (N.M. Ct. App. 1997).

32A-4-28B(2) NMSA 1978 explicitly requires reasonable efforts to assist the parent to properly care for the child before parental rights may be terminated. State ex rel. Children, Youth & Families Dep't v. John D., 1997-NMCA-019, 123 N.M. 114, 934 P.2d 308, 1997 N.M. App. LEXIS 10 (N.M. Ct. App. 1997).

Existence of the conditions set forth in 32A-4-28B(3) NMSA 1978  creates a rebuttable presumption of abandonment under 32A-4-28C NMSA 1978. State ex rel. Children, Youth & Families Dep't v. John D., 1997-NMCA-019, 123 N.M. 114, 934 P.2d 308, 1997 N.M. App. LEXIS 10 (N.M. Ct. App. 1997).

      Review.

           —Standards.

Standard of review in an appeal from the termination of a parent’s rights to a child requires the appellate court to determine whether the trial court’s conclusion, when viewed in the light most favorable to the decision below, was supported by substantial evidence, not whether the trial court could have reached a different conclusion. State ex rel. Children, Youth & Families Dep't, 2002-NMCA-061, 132 N.M. 299, 47 P.3d 859, 2002 N.M. App. LEXIS 46 (N.M. Ct. App. 2002).

      Standard of proof.

In proceedings seeking the termination of parental rights, the grounds for any attempted termination must be proven by clear and convincing evidence; 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 factfinder’s mind is left with an abiding conviction that the evidence is true. In re Adoption of Doe, 1982-NMCA-094, 98 N.M. 340, 648 P.2d 798, 1982 N.M. App. LEXIS 890 (N.M. Ct. App.), cert. denied, 98 N.M. 336, 648 P.2d 794, 1982 N.M. LEXIS 2950 (N.M. 1982).

In a termination of parental rights proceeding, the evidence supporting the trial court’s finding that a mother was “unfit” under former 40-7-4A(3) NMSA 1978, consisting of evidence that the mother failed to personally care for, support, educate, give moral and spiritual guidance to, and provide a home, love, and security for the child, that a consequence of the mother’s failure was the absence of a parent-child relationship, that there was turnover among the social workers supervising the child’s foster care arrangements, that the child was located with foster parents for over two years, and that social workers were unsuccessful in their efforts to restore a parent-child relationship through visitations, met the clear and convincing standard of former 40-7-4F NMSA 1978. State Health & Social Servs. Dep't v. Smith, 1979-NMCA-004, 93 N.M. 348, 600 P.2d 294, 1979 N.M. App. LEXIS 858 (N.M. Ct. App.), cert. denied, 92 N.M. 532, 591 P.2d 286, 1979 N.M. LEXIS 1442 (N.M. 1979).

      Substance abuse.

Mother’s failure to complete substance abuse treatment and counseling that was part of her reunification plan, along with the mother’s admission that she did not have the financial or other needed resources to care for her child, constituted clear and convincing evidence supporting the termination of her parental rights. State ex rel. Children, Youth & Families Dep't v. Laura J., 2013-NMCA-057, 301 P.3d 860, 2012 N.M. App. LEXIS 105 (N.M. Ct. App. 2012), cert. denied, 301 P.3d 858, 2013 N.M. LEXIS 216 (N.M. 2013).

      Termination of parental rights.

Where the district court terminated the parental rights of two developmentally disabled parents based on evidence that their physically and mentally disabled daughter was abused and neglected, it was not improper for the district court to consider the child’s best interests. The child’s untreated health problems placed her at risk for brain damage or mortality unless drastic measures were taken, and the record showed that she was making progress in foster care. State ex rel. Children, Youth & Families Dep't v. John R., 2009-NMCA-025, 145 N.M. 636, 203 P.3d 167, 2009 N.M. App. LEXIS 2 (N.M. Ct. App. 2009).

Termination of mother’s parental rights was appropriate, even though she had done her best to comply with treatment plan, where her psychological infirmities rendered her unable to safely parent her children and meet their psychological and emotional needs in the foreseeable future. State ex rel. Children, Youth & Families Dep't v. Athena H., 2006-NMCA-113, 140 N.M. 390, 142 P.3d 978, 2006 N.M. App. LEXIS 107 (N.M. Ct. App. 2006).

Trial court should not have terminated the father’s parental rights under 32A-4-28B(2) NMSA 1978 by summary judgment as the father’s murder of the child’s mother did not constitute neglect of the child under 32A-4-2E(1), (2), (4) NMSA 1978. State ex rel. Children, Youth & Families Dep't v. Joe R. (In re Sara R.), 1996-NMCA-091, 122 N.M. 284, 923 P.2d 1169, 1996 N.M. App. LEXIS 71 (N.M. Ct. App. 1996), rev'd, 1997-NMSC-038, 123 N.M. 711, 945 P.2d 76, 1997 N.M. LEXIS 323 (N.M. 1997).

      Venue in terminating parental rights.

Although venue was improper under former 32-1-55A NMSA 1978 (now 32A-1-9 NMSA 1978) because the child was placed and resided in a different county from the county where the trial was held, the mother waived that issue when she failed to address venue at the periodic review hearings. In re Kenny F., 1990-NMCA-004, 109 N.M. 472, 786 P.2d 699, 1990 N.M. App. LEXIS 3 (N.M. Ct. App. 1990), overruled,  Roth v. Bookert (In re J.J.B.), 1993-NMCA-145, 117 N.M. 31, 868 P.2d 1256, 1993 N.M. App. LEXIS 161 (N.M. Ct. App. 1993).

      Waiver.

Mother waived her challenge to the venue of a hearing to terminate her parental rights where the transcripts from the hearing showed that no claim was made that the hearing would violate the venue statute; the mother only claimed that the hearing violated her due process rights. In re Kenny F., 1990-NMCA-004, 109 N.M. 472, 786 P.2d 699, 1990 N.M. App. LEXIS 3 (N.M. Ct. App. 1990), overruled,  Roth v. Bookert (In re J.J.B.), 1993-NMCA-145, 117 N.M. 31, 868 P.2d 1256, 1993 N.M. App. LEXIS 161 (N.M. Ct. App. 1993).

      Welfare of child.

In determining whether to terminate parental rights, a trial court must give primary consideration to the physical, mental and emotional welfare and needs of the children, including the likelihood of the children being adopted if parental rights are terminated. State ex rel. Children, Youth & Families Dept. v. Vanessa C., 2000-NMCA-025, 128 N.M. 701, 997 P.2d 833, 2000 N.M. App. LEXIS 13 (N.M. Ct. App.), cert. denied, 128 N.M. 690, 997 P.2d 822, 2000 N.M. LEXIS 119 (N.M. 2000).

Research References and Practice Aids

      New Mexico Law Review.

Note: Family Law-New Mexico Expands Due Process Rights Of Parents In Termination Of Parental Rights: In Re Ruth Anne E., Patricia Fletcher Schroeder, 31 N.M. L. Rev. 439 (2001).