       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ___________

Filing Date: March 26, 2013

Docket No. 31,869

STATE OF NEW MEXICO ex rel.
CHILDREN, YOUTH AND FAMILIES
DEPARTMENT,

       Petitioner-Appellee,

v.

RAQUEL M.,

       Respondent-Appellant,

IN THE MATTER OF ANGEL N., n/k/a
CISCO N.,

       Child.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Charles C. Currier, District Judge

Children, Youth & Families Department
Oneida L’Esperance, Chief Children’s Court Attorney
Rebecca J. Liggett, Children’s Court Attorney
Santa Fe, NM

for Appellee

Jane B. Yohalem
Santa Fe, NM

for Appellant

Pittman Law Firm, P.C.
Judy A. Pittman
Roswell, NM


                                         1
Guardian ad Litem

                                           OPINION

SUTIN, Judge.

{1}     Raquel M. (Mother) appeals the district court’s judgment terminating her parental
rights to Angel N., now known as Cisco N. (Child). Based upon its finding that Child had
been subjected to aggravated circumstances—specifically, that Mother’s parental rights to
Child’s sibling had previously been terminated—the district court relieved the Department
of its obligation to make further reasonable efforts to reunify the family. Mother contends
that because the prior termination was the subject of a pending appeal in this Court, her right
to due process was violated by the aggravated circumstances finding. We conclude that
Mother’s due process rights were not violated, and we affirm.

LEGAL BACKGROUND

{2}     When a child is found to be neglected or abused, the district court must order the
Children, Youth and Families Department (the Department) to design and implement a
treatment plan that reflects “reasonable efforts” on behalf of the Department to preserve and
reunify the family. NMSA 1978, § 32A-4-22(C) (2009); see also State ex rel. Children,
Youth & Families Dep’t v. Amy B., 2003-NMCA-017, ¶ 2, 133 N.M. 136, 61 P.3d 845
(explaining that the treatment plan shall outline the Department’s reasonable efforts to
reunify the family). Subject to court approval of the treatment plan, the child’s parent is
ordered to cooperate with its dictates. Section 32A-4-22(C). In some circumstances,
however, the court may relieve the Department of its obligation to employ reasonable efforts
at reunification, including its obligation to implement a treatment plan. Id. One such
circumstance is a finding, by the court, that the parent has subjected the child to aggravated
circumstances. Section 32A-4-22(C)(2). By definition, “aggravated circumstances”
includes those circumstances in which the parent has had parental rights over a sibling of the
child terminated involuntarily. NMSA 1978, § 32A-4-2(C)(4) (2009).

{3}      A finding of aggravated circumstances also plays a role in the termination of parental
rights. “The Children’s Code gives the [district] court the authority to terminate the parental
rights of an abusive or neglectful parent.” State ex rel. Children, Youth & Families Dep’t
v. Mafin M., 2003-NMSC-015, ¶ 18, 133 N.M. 827, 70 P.3d 1266. Ordinarily, the court may
not terminate parental rights unless the court determines “that the conditions and causes of
the neglect and abuse are unlikely to change in the foreseeable future despite reasonable
efforts by the [D]epartment . . . to assist the parent in adjusting the conditions that render the
parent unable to properly care for the child.” NMSA 1978, § 32A-4-28(B)(2) (2005)
(emphasis added). In cases where the parent has subjected the child to aggravated
circumstances, however, the district court may find that efforts by the Department are
unnecessary. Section 32A-4-28(B)(2)(b). Under those circumstances, where the Department
is excused of its reasonable-efforts obligation, in order to succeed on a motion to terminate

                                                2
parental rights, the Department must still prove that the conditions and causes of the abuse
and neglect would not change in the foreseeable future. Amy B., 2003-NMCA-017, ¶ 18.

FACTS

{4}     On December 16, 2010, the district court entered a judgment terminating Mother’s
parental rights to a sibling Child. Mother appealed the December 16 judgment to this Court.
See In re Isiah M., No. 31,057, slip op. (N.M. Ct. App. March 27, 2012). On February 4,
2011, while Mother’s appeal to this Court was pending, the Department filed an abuse and
neglect petition alleging that Mother had abused and/or neglected Child.1

{5}     The abuse and neglect petition alleged the following facts in support of its request
that the district court find that Child was neglected and/or abused. On January 31, 2011, the
Department responded to an emergency law enforcement referral alleging physical neglect
of Child. Law enforcement had entered a residence due to outstanding warrants for the adult
residents. When they entered the residence, the officers “observed what they believed to be
adults trying to place [Child, who was less than three months old at the time] into a hole in
the floor.” There was drug paraphernalia throughout the residence. Mother was arrested
pursuant to outstanding warrants. Child was taken into the custody of the Department. As
of the filing date of the petition, Mother was incarcerated. Based on a mouth swab, Child
tested positive for methamphetamine, indicating that Child had been exposed to the drug
within thirty-six hours prior to being tested.

{6}     The petition also alleged that Mother had subjected Child to aggravated
circumstances based on the December 16, 2010, judgment that terminated her parental rights
to Child’s sibling, Isiah. Owing to the aggravated circumstance of the December 16, 2010,
termination of Mother’s parental rights to Isiah, the Department requested to be relieved of
its obligation to make reasonable efforts to preserve and reunify the family as to Child,
pursuant to Section 32A-4-22(C)(2).

{7}     Also on February 4, 2011, the Department filed its affidavit in support of an ex parte
custody order. In greater detail and with additional facts, the affidavit essentially expanded
upon the facts presented in the abuse and neglect petition. Among other facts, the affidavit
alleged that there was a bottle, a blanket, and a cell phone in one of two holes in the floor.
Further, law enforcement officers were said to have observed a marijuana pipe and two
methamphetamine pipes in the living room, as well as a purse containing foil and plastic
baggies, which the officers suspected to be related to drugs. Mother had approximately
fifteen warrants for her arrest.

{8}    On February 7, 2011, the district court filed an ex parte custody order, mandating that


       1
          The abuse and neglect petition also pertained to Child’s father who is not a party
to this appeal.

                                              3
Child remain in the Department’s custody “until further order of the [c]ourt.” On March 8
and April 19, 2011, the district court held an adjudicatory hearing on the Department’s abuse
and neglect petition. In its disposition order, the court found by clear and convincing
evidence that Mother’s parental rights to a sibling of Child’s had been involuntarily
terminated on December 16, 2010. Based on that prior termination of parental rights, the
district court found aggravated circumstances as to Mother. The court also found that
“further treatment efforts by [the Department] would be futile”; accordingly, the court
relieved the Department of making further efforts to work a treatment plan with Mother.

{9}    On May 17, 2011, the district court held an initial permanency hearing. The court
noted that owing to its April 19 finding of aggravated circumstances, it had relieved the
Department of making reasonable efforts and implementing a treatment plan. The court
found that “[t]he permanency plan proposed by the Department is adoption[,]” which plan
the court found appropriate. The court ordered that Child’s permanency plan would be
adoption.

{10} On July 11, 2011, the Department moved to terminate Mother’s parental rights to
Child. In its motion, the Department stated that the “facts and circumstances supporting .
. . termination” were that Child was subjected to aggravated circumstances in that the
parental rights to a sibling had been terminated involuntarily and that termination of parental
rights would promote the physical, mental, and emotional welfare needs of Child.

{11} A hearing on the Department’s motion to terminate Mother’s parental rights was held
on September 23, 2011. On October 20, 2011, the district court entered its decision to
terminate Mother’s parental rights. On appeal, Mother does not challenge the district court’s
factual findings. In pertinent part, those findings included that Mother has a chronic illegal
drug abuse problem; Mother’s parental rights were involuntarily terminated in regard to
Isiah; when Child was taken into Department custody, “he had a high level of
methamphetamine in his system”; and Mother had been “in and out of jail since the
beginning of this case.” Specifically, the court found that Mother was incarcerated from
January 31, 2011, through early May 2011; and on September 13, 2011, Mother was arrested
again for allegedly violating the conditions of her probation.

{12} The court found that after Mother was released from jail in early May 2011, she
requested visitation with Child, and while she was incarcerated, she had some limited
visitation, but none after May 17, 2011, and beyond her initial request for visitation, Mother
made no further contact with the Department. The court also found that Mother took
advantage of services that were available to her during her January to May 2011
incarceration, but after her release she did nothing to eliminate the causes and conditions that
brought Child into custody. In the court’s view, those causes and conditions included:

       A.       Mother has never had a home.

       B.       Mother has never had employment.

                                               4
       C.      Mother continues to use illegal drugs (the alleged probation violation
               is for the use of illegal drugs).

       D.      Mother has never entered, let alone completed, any drug treatment
               plan.

       E.      Mother did not follow up on working on her GED.

In addition, the court found that “[t]he only progress Mother has ever made has been when
she has been incarcerated[,]” and it is unknown when Mother will be released from
incarceration. Based on the foregoing facts, the court concluded that “[t]he conditions and
causes of the neglect and abuse that brought Child [into] custody are unlikely to change in
the foreseeable future.”

{13} The court also entered findings of fact and conclusions of law in regard to Child’s
interests. The court found that Child had been in the care of foster parents since Child was
taken into the Department’s custody, and the foster parents wished to adopt Child. The court
found that Child had bonded with the foster parents in a parent/child relationship. And the
court concluded that it was in the best interest of Child to have Mother’s parental rights
terminated and Child made available for adoption.

{14} In accordance with its findings of fact and conclusions of law, the court concluded
that Mother’s rights would be terminated pursuant to Section 32A-4-28(B)(2). On
November 22, 2011, the court, referencing its October 20 decision, entered its judgment
terminating Mother’s parental rights. On March 27, 2012, this Court entered a Decision
affirming the termination of Mother’s parental rights to Child’s sibling. See In re Isiah M.

{15} Mother appeals from the district court’s judgment terminating her parental rights to
Child. On Appeal, Mother argues that she was deprived of due process when the district
court found aggravated circumstances based upon the earlier termination of her parental
rights, when that case had yet to be resolved on appeal. She also argues that the Legislature
did not intend to authorize termination of parental rights based on aggravated circumstances
when the prior termination of parental rights judgment is pending on appeal.

{16} We conclude that the statutory procedures employed in the district court provided
protection against the risk of an erroneous deprivation of parental rights, even with a finding
of aggravated circumstances, and even when there existed a possibility the foundational
judgment supporting that finding could be reversed on appeal. And we do not believe that
additional or substitute procedural safeguards are required. Also, we reject Mother’s
legislative intent argument. We affirm.

DISCUSSION

Mootness

                                              5
{17} As an initial matter, we reject the argument made both by the Department and the
Guardian ad Litem that Mother’s appeal is moot because the earlier termination was
ultimately affirmed by this Court. A case is moot when there exists no actual controversy
and the appellate court cannot grant actual relief. Gunaji v. Macias, 2001-NMSC-028, ¶ 9,
130 N.M. 734, 31 P.3d 1008. Here, Mother’s due process claim amounts to the contention
that, in Mother’s words, “the district court’s premature decision irreparably harmed Mother’s
chances of reuniting with Child.” This constitutes an actual controversy for which we could
grant the “actual relief” of remanding the case with instructions to the Department to make
reasonable efforts to assist Mother to reunify with Child. Accordingly, we conclude that
Mother’s appeal is not moot. We turn now to a consideration of the merits of Mother’s
appeal.

Standard of Review

{18} “[T]he right to raise one’s child is a fundamental right protected by the Fourteenth
Amendment to the United States Constitution[.]” Mafin M., 2003-NMSC-015, ¶ 18.
Termination proceedings must therefore be conducted in a constitutional manner that affords
the parent due process of law. Id. “Due process of law requires that termination proceedings
be conducted with scrupulous fairness to the parent.” Id. (internal quotation marks and
citation omitted). We review de novo the question whether Mother’s due process rights were
violated when the district court terminated her parental rights. Id. ¶ 17.

{19} To determine whether due process was satisfied in a termination proceeding, we
employ the three-part balancing test of Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Mafin M., 2003-NMSC-015, ¶ 19. That test requires the weighing of (1) Mother’s interest;
(2) the risk to Mother of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural safeguards; and
(3) the government’s interest. Id. Our Supreme Court has recognized an equal balance
between a parent’s fundamental interest in regaining a parent-child relationship and the
state’s interest in protecting the welfare of children. Id. ¶ 20. In light of that balance, our
Supreme Court has stated that “the decisive issue centers on the second factor of the
Mathews test.” Mafin M., 2003-NMSC-015, ¶ 20.

Mother’s Due Process Argument

{20} Mother argues that finding aggravated circumstances on the basis of a prior
termination of parental rights that “may well be reversed” on appeal creates a significant risk
of an erroneous deprivation of her parental rights in regard to Child. In Mother’s view, had
she been afforded the time and opportunity to work a treatment plan, with the Department’s
assistance, the result of the proceedings in regard to Child may well have been different.

{21} Mother’s argument rests upon the premise that the propriety of the prior termination
was placed “in doubt” while her appeal of the prior termination of her parental rights was
unresolved in this Court. Mother reasons that the risk of an erroneous deprivation stemmed

                                              6
from the possibility that, had the earlier judgment terminating her parental rights been
reversed by this Court, the aggravated circumstances finding, the corresponding deprivation
of a treatment plan and lack of Department support, and lack of time to achieve treatment
goals, would have been based upon a prior erroneous termination. According to Mother, had
she received a treatment plan, Department support, and time to achieve treatment goals, she
may have been able to reunify with Child. Mother contends that because of the court’s
premature determination of aggravated circumstances, termination of her parental rights to
Child was a “virtual certainty[.]” That virtually certain termination of her rights to Child
would thus have been based upon an erroneous assumption regarding her ability to remedy
the conditions that rendered her unable to properly care for Child’s sibling. See § 32A-4-
28(B)(2) (stating the basis upon which a court may terminate a parent’s rights to his or her
child).

{22} Mother argues that the risk of an erroneous decision arising out of the procedure
employed here is “unacceptably high” when measured against the importance of the right
at stake—that is, her fundamental right to parent Child. She further argues that highly
effective substitute procedures are readily available and that their implementation would “far
better [ensure] a fair and accurate decision, [and would] cause little delay in finality for
[Child].” More specifically, Mother argues that an appropriate “alternative to rushing to find
aggravated circumstances before a judgment [has been disposed of] on appeal is to delay [the
aggravated circumstances] determination and to require [the Department] to both put in place
a treatment plan and [to] offer the parent assistance in working that plan.” In Mother’s view,
delaying an aggravated circumstances finding during the pendency of an appeal from the
earlier termination decision is a viable alternative that would conform with the routine
functioning of the Department and the district court. See, e.g., § 32A-4-22(C); NMSA 1978,
§ 32A-4-25 (2009); NMSA 1978, § 32A-4-25.1 (2009).

Mother’s Due Process Argument Is Unpersuasive

{23} Under the facts in this case, we are not persuaded that the district court’s aggravated
circumstances finding, while a prior termination was pending on appeal, engendered a risk
of an erroneous deprivation of Mother’s parental rights. The aggravated circumstances
finding did not condemn her to failure or lay the ground work for the inevitable termination
of her parental rights to Child. Mother was free, on her own behalf, to engage in efforts
toward reunification, yet she failed to do so. See Amy B., 2003-NMCA-017, ¶ 5 (recognizing
that, notwithstanding a finding of aggravated circumstances, the mother was not “precluded
. . . from making efforts on her own behalf in an attempt to alleviate the conditions that led
to the abuse and neglect”). For example, among other things, Mother continued to use drugs
throughout the pendency of this case, and she remained unemployed and without a home.

{24} Additionally, the district court may not terminate parental rights to a child absent a
finding “that the conditions and causes of the neglect and abuse are unlikely to change in the
foreseeable future[.]” See § 32A-4-28(B)(2). This finding is required regardless of
aggravated circumstances. Amy B., 2003-NMCA-017, ¶ 18. And it must be supported by

                                              7
clear and convincing evidence. See Mafin M., 2003-NMSC-015, ¶ 25 (recognizing that the
Department is required to present clear and convincing evidence to support termination of
a parent’s parental rights). Thus, the risk of an erroneous deprivation was minimal because
had Mother exhibited a sincere, active, and productive effort to reunify with Child, and had
she acted to dispel the concerns that gave rise to statutory exception to the treatment plan and
Department efforts requirements, she may well have prevailed in overcoming the
Department’s contention that the conditions and causes of the neglect and abuse were
unlikely to change in the foreseeable future. As it stands, however, Mother does not dispute
the “clear and convincing” nature of the evidence that supported the district court’s decision
to terminate her parental rights in this case.

{25} We next consider the probable value of additional or substitute procedural safeguards
that might have been employed in this case. Mother suggests only one such procedural
safeguard—that is, to have required the district court to delay an aggravated circumstances
finding until the earlier judgment was resolved on appeal and, in the interim, to have
provided her with a treatment plan aimed at reunification. Under the facts of this case,
Mother’s argument is unavailing. As indicated in the earlier paragraphs, we do not view the
risk of erroneous deprivation under the circumstances to have been more than minimal. That
view is fortified by the fact that this Court affirmed the termination of Mother’s parental
rights to Isiah four months after the termination of Mother’s parental rights to Child. Had
the circumstances in this case including the timing of the events been substantially different,
Mother may have had a stronger position, however, under these facts, Mother’s argument
provides no basis for reversing the termination of parental rights and requiring the district
court to order the Department to engage in reasonable efforts toward reunification of Mother
and Child.

{26} We do not foreclose the possibility that in some cases where a prior termination of
parental rights is pending appeal, the facts or circumstances of the case may call for delaying
an aggravated circumstances determination pending the outcome of the appeal. Whether the
court should make an aggravated circumstances determination and the timing of such a
determination is properly left to the sound discretion of the district court. See § 32A-4-
22(C); Amy B., 2003-NMCA-017, ¶ 14 (recognizing the court’s discretion to find aggravated
circumstances). Despite Mother’s desire that we do so, we will not attempt either to suggest
guidelines or to impose a set of bright-line factors to guide the court’s discretionary
determination in that regard.

{27} In sum, we disagree with Mother’s due process arguments relating to the district
court’s aggravated circumstances finding and the timing of that finding. Under the second
Mathews factor, we conclude that the risk to Mother of an erroneous deprivation under these
circumstances was minimal and that no additional or substitute procedural safeguards were
required. See Mafin M., 2003-NMSC-015, ¶ 19. Therefore, we reject Mother’s due process
claim.

Mother’s Legislative Intent Argument

                                               8
{28} Side-by-side with her due process argument, Mother argues that the district court’s
use of her prior termination of parental rights that was pending appeal constituted reasonable
reversible error because it was contrary to legislative intent. Mother argues that such a
procedure is inconsistent with two purposes of the Children’s Code, specifically, (1) the
preservation of the unity of the family whenever possible, and (2) the provision of judicial
and other procedures in which the parties are assured a fair hearing and their constitutional
and other legal rights are recognized and enforced. See NMSA 1978, § 32A-1-3(A), (B)
(2009). Mother also argues that the Legislature’s use of the past tense in providing the
definition of aggravated circumstances in Section 32A-4-2(C)(4) indicates that the
Legislature intended the prior termination of parental rights to provide the basis of an
aggravated circumstances only where the “prior termination of parental rights was absolutely
final.” We reject Mother’s arguments.

{29} First, to the extent that Mother is arguing that because state law incorporates notions
of due process, the proceedings violated state law, having already rejected Mother’s due
process claim, we likewise reject her contention. Second, Mother overlooks the fact that the
preservation of family unity “whenever possible” is a secondary consideration, with the
primary consideration being “the care, protection[,] and wholesome mental and physical
development of children[.]” Section 32A-1-3(A) (stating that the legislative purposes of the
Children’s Code include “first to provide for the care, protection[,] and wholesome mental
and physical development of children . . . and then to preserve the unity of the family
whenever possible” and explaining that the health and safety of children is the “paramount
concern” (emphasis added)). To that end, the district court has been given discretion to
alleviate the Department’s burden to engage in reasonable efforts at reunification under
specific circumstances, including the prior termination of parental rights to a child’s sibling.
See §§ 32A-4-2(C)(4), -22(C)(2).

{30} The enactment of the aggravated circumstances provisions was a response to the
federally recognized problem in abuse and neglect cases of a tendency to “err on the side of
protecting the rights of parents. . . . [The result of which was that] too many children are
subjected to long spells of foster care or are returned to families that reabuse them.” Amy
B., 2003-NMCA-017, ¶ 7 (internal quotation marks and citation omitted). As recognized in
Amy B., the aggravated circumstances provisions tend to serve the best interest of the child
because “[e]xperience has shown that with certain parents, as is the case here, the risk of
recidivism is a very real concern. Therefore, when another child of that same person is
adjudged a dependent child, it is not unreasonable to assume [that] reunification efforts will
be unsuccessful.” Id. ¶ 16 (internal quotation marks and citation omitted).

{31} Finally, Mother argues that the termination of parental rights is not “absolutely final”
when it is the subject of a pending appeal. Cf. State ex rel. Children, Youth & Families
Dep’t v. Brandy S., 2007-NMCA-135, ¶ 15, 142 N.M. 705, 168 P.3d 1129 (recognizing that
a judgment terminating parental rights constitutes a final judgment). She bases this argument
on a perceived legislative intent that the aggravated circumstances finding is to be delayed
pending appeal of an earlier termination. We are not persuaded. The Legislature could have

                                               9
limited the definition of aggravated circumstances to those situations in which an appellant
has exhausted her rights to appeal, but it did not. See State v. Office of Pub. Defender ex rel.
Muqqddin, 2012-NMSC-029, ¶ 47, 285 P.3d 622 (recognizing that the Legislature is free to
define statutory elements as it wishes). Moreover, considering that the primary
consideration of the Children’s Code is the best interest of the child, see § 32A-1-3(A), and
that children’s interests are served by “timely and permanent placement[,]” State ex rel.
Children, Youth & Families Dep’t v. Maria C., 2004-NMCA-083, ¶ 45, 136 N.M. 53, 94
P.3d 796, we are not persuaded that the Legislature would choose to limit the district court’s
discretion with a mandate requiring the court to delay a finding of aggravated circumstances
in all cases coming within the definition of Section 32A-4-2(C)(4) until an appeal of the
prior termination was finally resolved in the appellate process. See id. (defining aggravated
circumstances as those circumstances in which the parent has had parental rights over a
sibling terminated involuntarily).

The Dissent

{32}   Respectfully, the Dissent’s approach is problematic.

{33} To interpret “terminated” in Section 32A-4-2(C)(4) to mean that the issue has been
resolved by the highest court to which the parent might seek relief eviscerates legislative
intent. That intent is to avoid, where reasonable and appropriate, holding a child in
Department-custody limbo where, with respect to the child’s sibling, a parent has or parents
have already been proven not amenable to Department reunification efforts or otherwise so
unfit to parent as to inspire little hope that they will be able to provide appropriate care for
the child at issue. See §§ 32A-4-2(C)(4), -4-22(C)(2); Amy B., 2003-NMCA-017, ¶¶ 7, 16.

{34} The interpretation results in an unintended mandate that, regardless of the
circumstances, where the earlier termination adjudication is on appeal, the parent is
guaranteed another go-round with Department reunification efforts for a period that could
linger on over a span of a year or more while the child remains in limbo. Considering the
high value of timely and permanent placement for children, see Maria C., 2004-NMCA-083,
¶ 45, this interpretation runs afoul of the purpose of the Children’s Code and does not have
support in legislative intent. In addition, the Dissent’s reliance on one dictionary definition
of “terminate” leaves open unintended and perhaps unwarranted interpretations or
consequences with respect not only to the meaning of “termination” throughout the
Children’s Code, but also with respect to the concept of “finality” in the appellate process.

{35} The Dissent’s view of the issue at hand as being whether “Mother should have been
provided services,” Dissent ¶ 44, evades focus on the real issue—whether Mother’s due
process right was violated. An aggravated circumstances finding does not inevitably lead
to deprivation of reasonable reunification efforts. The finding has the limited effect of
permitting the district court to exercise its discretion whether to alleviate the Department’s
burden to make such efforts. See § 32A-4-22(C)(2). In considering the circumstances, the
court can require the Department to engage in reasonable reunification efforts. The due

                                              10
process risk that Mother associates with an aggravated circumstances finding that is based
on a potentially reversible prior termination is minimized by the court’s discretionary
function.

{36} Finally, the Dissent indicates that, under the majority’s opinion here, in all cases in
which reversal on appeal of an earlier termination relating to the sibling occurs, this Court
will be forced to “unring the ‘aggravated circumstances’ bell” with adverse consequences.
Dissent ¶ 45. While we acknowledge that reversal of an earlier termination will result in
further proceedings in the case involving the sibling as well as the case in which an
aggravated circumstances finding was made, we do not agree that these possible
circumstances dictate a ruling in this case that adopts Mother’s position or the Dissent’s
view. That position and view are based on an assumption that is, in our view,
unsupportable—that in every aggravated circumstances case, the district court will relieve
the Department of its reasonable efforts obligation. Moreover, as we have expressed, we do
not think that Mother’s position and the Dissent’s view comports with plain language used
by the Legislature, with legislative intent, or with the goals of the Children’s Code. If we
are mistaken, we respectfully invite the Legislature to set the matter right.

CONCLUSION

{37}   We affirm.

{38}   IT IS SO ORDERED.

                                               ____________________________________
                                               JONATHAN B. SUTIN, Judge

I CONCUR:

____________________________________
RODERICK T. KENNEDY, Chief Judge

TIMOTHY L. GARCIA, Judge, dissenting.

GARCIA, Judge (dissenting).

{39} I respectfully dissent in this case. I would agree with Mother that the Legislature did
not intend for aggravated circumstances under Section 32A-4-2(C)(4) to be applied in
proceedings where the termination of parental rights over a sibling remained unresolved on
appeal. As a result, it is not necessary to address the related due process issue raised in this
appeal. Mother was entitled to assistance from the Department to remedy the causes and
conditions that rendered Mother unable to properly care for Child and originally caused
Child to come into the Department’s custody.


                                              11
{40} Section 32A-4-2(C)(4) defines the particular element of aggravated circumstances
applied by the district court in this case as: “had parental rights over a sibling of the child
terminated involuntarily[.]” (Emphasis added.) Mother argued that this definition requires
completion and finality in the involuntary termination proceedings pending for Child’s
sibling, including any appeals. It is not disputed that the termination proceedings for Child’s
sibling were on appeal and remained unresolved throughout Child’s district court
proceedings in the present case. Because of the district court’s decision to apply aggravated
circumstances in this case, the Department did not provide Mother with assistance under
Section 32A-4-22(C) to attempt reunification and to remedy the causes and conditions that
rendered Mother unable to properly care for Child.

{41} This Court reviews issues of statutory interpretation and construction de novo. State
ex rel. Children, Youth & Families Dep’t v. Andree G., 2007-NMCA-156, ¶ 17, 143 N.M.
195, 174 P.3d 531. The primary goal in statutory construction is “to ascertain and give effect
to the intent of the Legislature.” Lobato v. N.M. Env’t Dep’t., 2012-NMSC-002, ¶ 6, 267
P.3d 65 (internal quotation marks and citation omitted). Both parties recognize that when
construing a statutory section in reference to the statute as a whole, this Court will consider
the several sections together so that all parts are given proper effect and placed in the
appropriate context. Reule Sun Corp. v. Valles, 2010-NMSC-004, ¶ 15, 147 N.M. 512, 226
P.3d 611. “The appellate courts examine the overall structure of the statute and its function
in the comprehensive legislative scheme.” State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M.
372, 98 P.3d 1022. “[W]hen a statute is ambiguous, we may consider the clear policy
implications of its various constructions.” Id. The parties recognize that the statutory
construction for the language in Section 32A-4-2(C)(4) has not been previously interpreted
by this Court.

{42} Initially, the appellate courts start this review “by examining the words chosen by the
Legislature and the plain meaning of those words.” Reule Sun Corp., 2010-NMSC-004, ¶
15. Webster’s Dictionary provides several primary and secondary definitions for the word
“terminate.” Webster’s Third New Int’l Dictionary 2359 (1966). Primary definition
includes: “a: to bring to an ending or cessation in time sequence, or continuity : CLOSE .
. . (benediction terminated the service).” Id. A third primary definition states: “c: to end
formally and definitely . . . (his employment with the company was terminated).” Id. One
of the secondary definitions states “2: to set a limit to in space : serve as an ending,
boundary, limit, dividing line.” Id. Each of these definitions have a common principle to
apply, they recognize a definitive ending or finality to an event or proceeding. As such, an
unresolved proceeding, one that is not final and has not reached a definitive end, does not
meet the accepted general definition of “terminate” or its past-tense equivalent “terminated.”
In this case, the generally accepted definition of “terminated” would appear to support
Mother’s position—where a termination proceeding remains unresolved on appeal and has
not yet ended formally or definitely, parental rights to a sibling have not been terminated
under Section 32A-4-2(C)(4). However, our Supreme Court has recognized that the
application of the plain meaning rule does not end an analysis. See State v. Rivera, 2004-
NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939 (recognizing that the appellate courts will not

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rely upon the literal meaning of a statute when such a construction would be absurd,
unreasonable, or otherwise inappropriate).

{43} We should be looking at the overall legislative scheme regarding the termination of
parental rights and address whether the plain meaning of the word “terminated” in Section
32A-4-2(C)(4) contradicts the scheme established by the Legislature under the Abuse and
Neglect Act (the Act), NMSA 1978, §§ 32A-4-1 to -34 (1993, as amended through 2009).
The majority views this analysis in light of the previous federally recognized problem— that
abuse and neglect proceedings were subjecting children to long spells in foster care or
returning them to abusive parents. Majority Opinion ¶ 30. This analysis does not explain
why the plain meaning interpretation of “terminated” under Section 32A-4-2(C)(4) would
subject children to long spells in foster care or return them to abusive parents. In fact, there
is no statutory basis under the Act to support the majority’s premise that such an undesirable
result would occur.

{44} At issue, is whether Mother should have been provided services from the Department
to attempt reunification and remedy the causes and conditions that rendered Mother unable
to properly care for Child. These are the same services and plans designed into the Act for
all parents who have been adjudicated as abusive or neglectful that otherwise do not meet
one of the two narrow statutory exceptions for expediting the process. See § 32A-4-22(C).
Neither the Department nor the majority challenge the general statutory scheme under the
Act. This general scheme attempts to efficiently reunify a child with its natural parents and
remedy the causes and conditions that rendered a parent unable to properly care for a child
in the first place. The Act was enacted in 1993, presumably to help remedy the historic
problem where children spent long spells in foster care or were regularly returned to abusive
parents. Mother’s interpretation of “terminated” under Section 32A-4-2(C)(4) would not
impose any new obligations or procedures upon the Department that are not presently in
place. Implementing the standard reunification procedures in this case would not have
subjected Child to some indefinite period of limbo or an extraordinary wait for final
adjudication. Similar to any normal case, termination proceedings would timely ensue if
Mother failed to comply with the Department’s reasonable efforts to effectuate reunification.

{45} Mother’s proposed statutory interpretation is far better than the alternative proposed
by the majority. Under the majority’s analysis, this Court would be forced to unring the
“aggravated circumstances” bell each time a district court erred in its determination that the
parental rights to a sibling were terminated but remained unresolved on appeal. Reversal by
this Court of a prior termination would not only send the sibling’s proceedings back for
reconsideration, it would also send the “aggravated circumstances” case for the subsequent
sibling back for consideration by the district court for further Department efforts. When
considering the best interests of a child and the potential length of time a child could be
subjected to further custodial limbo and Department supervision, the majority’s decision
neither comports with the plain language used by the Legislature in Section 32A-4-2(C)(4)
nor efficiently carries out the Act’s comprehensive legislative scheme to avoid long periods
of potential supervision and foster care.

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{46} In conclusion, I do not concur with the result reached by the majority in this case.
As a result, I would reverse the district court’s previous determination of aggravated
circumstances under Section 32A-4-22(C)(2) and remand for further proceedings in an
attempt to reunify the family in compliance with the Act.

                                            ____________________________________
                                            TIMOTHY L. GARCIA, Judge




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