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                                           New Mexico Compilation
                                         Commission, Santa Fe, NM
                                        '00'04- 14:37:14 2012.07.05

      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-065

Filing Date: May 18, 2012

Docket No. 30,951

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

      Petitioner-Appellee,

v.

CARL C.,

      Respondent-Appellant,

and

DANA H.,

      Respondent,

and

IN THE MATTER OF CHEYENNE C. and
CAYLIE C.,

      Children.

and

Docket No. 31,305

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

      Petitioner-Appellee,

v.

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DANA H.,

       Respondent-Appellant,

and

CARL C.,

       Respondent,

and

IN THE MATTER OF CHEYENNE C. and
CAYLIE C.,

       Children.

APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
Grant L. Foutz, District Judge

New Mexico Children, Youth and Families Department
Oneida L’Esperance, Chief Children’s Court Attorney
Daniel J. Pearlman, Children’s Court Attorney
Santa Fe, NM

for Appellee in Carl C.

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

for Appellee in Dana H.

Lopez & Sakura, LLP
Julie Sakura
Santa Fe, NM

for Appellant Carl C.

Alex Chisholm
Albuquerque, NM


                                        2
for Appellant Dana H.

Robert Ionta
Gallup, NM

Guardian Ad Litem

                                         OPINION

VANZI, Judge.

{1}     Both Dana H. (Mother) and Carl C. (Father) appeal the district court’s adjudication
that Cheyenne C. (Infant Child) and Caylie C. (Older Child) (collectively, Children) were
abused pursuant to NMSA 1978, Section 32A-4-2(B)(1) (2009), finding alternatively that
Mother and Father each either physically abused Infant Child or that they did not recognize
or acknowledge that the other parent had perpetrated the abuse. We combined the appeals
due to the shared record and to address in one opinion Mother’s and Father’s identical
argument that the district court erred in finding that Children were abused without making
a finding assigning the abuse to a specific parent. Father further argues that Section 32A-4-
2(B), as applied to him, is unconstitutionally vague. For the reasons that follow, we affirm.

BACKGROUND

{2}     The following facts were established at the adjudicatory hearing on July 27 and 28,
2010. On February 11, 2010, Infant Child was hospitalized for a respiratory issue. Upon
admission, an x-ray and full skeletal survey were performed, which revealed a fracture in
Infant Child’s left clavicle. The fracture appeared to be healing, and no other fractures were
found. Infant Child was discharged to Mother and Father on February 18, 2010.

{3}     On February 25, 2010, Mother brought Infant Child back to the hospital, reporting
that Infant Child had been ill the previous night. During Infant Child’s hospital stay, the
hospital staff determined that Infant Child had suffered three seizures, and Infant Child was
transferred to a different hospital. On March 3, 2010, the hospital performed an MRI and
skeletal survey that revealed that Infant Child had two subdural hematomas, a right skull
fracture, a fracture in one of the bones of the right forearm, and an injury to the right
clavicle. Of the subdural hematomas, one appeared to be approximately two weeks old, and
the other appeared to be less than one week old. Further examination revealed a right femur
fracture, a right parietal skull fracture, and ischemic brain tissue damage. Based on Infant
Child’s extensive injuries, the Children, Youth and Families Department (CYFD) filed an
abuse/neglect petition pursuant to Section 32A-4-2, alleging that Mother and Father had
abused and neglected Children.

{4}    When speaking to CYFD, both Mother and Father denied having knowledge of what
caused Infant Child’s injuries. On various occasions, they blamed the injuries on Older

                                              3
Child (who was less than two years old at the time), on the hospital staff, and on an evil spirit
residing in their household. At the hearing, both Mother and Father refused to testify on
Fifth Amendment grounds.

{5}     Dr. Gwen Lattimore testified as an expert in the evaluation, diagnosis, and treatment
of children suspected of having been abused and/or neglected. She testified to Infant Child’s
various injuries and ultimately concluded that Infant Child was injured through non-
accidental or abuse trauma occurring on at least two separate occasions and that the head
trauma was the cause of Infant Child’s seizures. Dr. Lattimore testified that the kinds of
injuries observed on Infant Child were caused by adults and not by short falls or small
children. She further testified that, while Infant Child’s fractures were not readily apparent
to the naked eye, injuries like those Infant Child received would have produced behaviors
or reactions from Infant Child that her caretakers would have noticed, even if they could not
tell specifically what the injuries were.

{6}      CYFD called two other witnesses, Officer Jimmy Ramos of the New Mexico State
Police Department, and Lynette Mose, a social worker assigned to the case. Officer Ramos
testified that Mother had told him that she and Father were the primary caretakers for
Children and that her mother, Children’s grandmother, watched them on Wednesday
evenings for a couple of hours while Mother and Father attended a college class. Officer
Ramos further testified that Mother had said that Children’s grandmother was the only
person who was with Children when Mother and Father were not around. Ms. Mose testified
that, in her investigation, she had interviewed Mother and Father, the grandmother, and a
CYFD employee. She also reviewed various documents, including Dr. Lattimore’s
consultation report, the abuse and neglect petition, and an affidavit. Based on her
investigation and her observations of the previous testimony, she believed that the continued
care of Children by Father and Mother would likely result in serious emotional or physical
damage to Children.

{7}     Before entering its findings, the district court noted that it had “no problem” finding
by clear and convincing evidence that Mother or Father caused the injuries, but it could not
determine which parent specifically was the perpetrator. Later, in the district court’s
findings of fact and conclusions of law, the district court found that Mother and Father were
the “primary caretakers [for Children] between February 12, 2010[,] and March 2, 2010[,]”
and that Infant Child “suffered non-accidental trauma (physical abuse) by . . . [Mother]
and/or [Father].” The district court further found that Mother and Father “either physically
abused [Infant Child], or the physical abuse of [Infant Child] was perpetrated by [one parent]
and [the other] did not recognize and/or acknowledge . . . the abuse and [therefore] is a threat
to the safety of [Children].” Regarding Older Child, the court stated, “[t]he non-accidental
trauma (physical abuse) of [Infant Child] by [Mother and/or Father] places [Older Child] at
risk of suffering serious physical and emotional harm if placed back in the care of [Mother
and/or Father].” The court further clarified that “if there is a non-abusing parent, [the non-
abusing parent’s] inaction resulted in an ‘abused child’ as defined in [Section] 32A-4-2(B).”
The court adjudicated Children as abused, and these appeals followed.

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DISCUSSION

The Adjudication of Children as Abused

{8}     Mother and Father ask us to interpret Section 32A-4-2(B)(1) and find that the statute
requires a specific determination of which parent’s actions or inactions caused Children to
be put at risk. Interpretation of a statute is a question of law that an appellate court reviews
de novo. Morgan Keegan Mortg. Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405,
951 P.2d 1066. “In interpreting statutes, we seek to give effect to the Legislature’s intent,
and in determining intent we look to the language used and consider the statute’s history and
background.” Key v. Chrysler Motors Corp., 121 N.M. 764, 768-69, 918 P.2d 350, 354-55
(1996).

{9}     Mother and Father argue that the district court erred in adjudicating Children as
abused without determining which parent actually caused the injuries suffered by Infant
Child. To support their argument, Mother and Father each rely on this Court’s interpretation
of a previous version of the child abuse statute, Section 32A-4-2 (1993), as analyzed in State
ex rel. Children, Youth & Families Department v. Vincent L., 1998-NMCA-089, ¶¶ 8-12,
125 N.M. 452, 963 P.2d 529. In analyzing Mother’s and Father’s argument, we find it
helpful to examine the historical background and amendments to the relevant portions of the
child abuse statute.

{10} Prior to 1997, the child abuse statute provided the following definition for “abused
child.”

       “Abused child” means a child:

              (1)    who has suffered physical abuse, emotional abuse or
       psychological abuse inflicted by the child’s parent, guardian or custodian;

               (2)     who has suffered sexual abuse or sexual exploitation inflicted
       by the child’s parent, guardian or custodian;

               (3)      whose parent, guardian or custodian has knowingly,
       intentionally or negligently placed the child in a situation that may endanger
       the child’s life or health; or

               (4)     whose parent, guardian or custodian has knowingly or
       intentionally tortured, cruelly confined or cruelly punished the child[.]

Section 32A-4-2(B) (1993).

{11} In our analysis of this version of the child abuse statute, we found that, prior to its
amendment in 1997, the definition of “abused child” did not permit the children’s court to

                                               5
adjudicate a child abused or neglected without assigning responsibility for the abuse or
neglect to a parent, guardian, or custodian. Vincent L., 1998-NMCA-089, ¶ 1. The 1997
amendment added an additional paragraph, Section 32A-4-2(B)(1), to the definition that
stated that an “abused child” is a child “who is at risk of suffering serious harm[.]” Section
32A-4-2(B)(1) (1997). This Court recognized that the amended language allowed a court
to adjudicate a child as abused without determining who was the abuser. See Vincent L.,
1998-NMCA-089, ¶ 12. In 1999, the Legislature amended Section 32A-4-2(B)(1) to its
current version, which now reads that an “abused child” is a child “who is at risk of suffering
serious harm because of the action or inaction of the child’s parent, guardian or custodian[.]”
Section 32A-4-2(B)(1) (1999). Mother and Father argue that although Vincent L. analyzed
a prior version of the Act, Vincent L. controls because the 1999 amendment returned Section
32A-4-2(B)(1) to its pre-1997 meaning. We are not persuaded.

{12} Even if we were to agree with Mother’s and Father’s interpretation that Vincent L.
requires a specific identification of the abusing parent, we disagree with their reading of the
statute and interpretation of the 1999 amendment. “In engaging in statutory construction,
our primary purpose is to give effect to the intent of the Legislature.” Town & Country Food
Stores, Inc. v. N.M. Regulation & Licensing Dep’t, 2012-NMCA-___, ¶ 9, ___ N.M. ___,
___ P.3d ___ (Nos. 30,921 and 30,922, March 22, 2012). “The first rule is that the plain
language of a statute is the primary indicator of legislative intent. Courts are to give the
words used in the statute their ordinary meaning unless the Legislature indicates a different
intent.” Id. (alteration, internal quotation marks, and citation omitted). Here, we read the
plain language of the statute to indicate that, when adjudicating a child as abused, the court
must determine that it was a parent, guardian, or custodian who placed the child at risk by
his or her action or inaction. We decline to read language into the child abuse statute that
would require a court to determine which parent, guardian, or custodian was the abuser. See
id. (“The court will not read into a statute . . . language which is not there, particularly if it
makes sense as written.” (internal quotation marks and citation omitted)). Therefore,
evidence that the abuse was perpetrated by either Mother or Father is sufficient for a court
to conclude that the action or inaction of a parent, guardian, or custodian caused the abuse,
bringing the case within the ambit of the statute. Had the Legislature intended to require a
court to specifically find which parent caused the abuse, it would have so specified. See id.
¶ 11 (stating that the Legislature would have provided clearer language if it had intended to
require a condition precedent to the imposition of administrative penalties).

{13} Instead of returning the statute to a previous meaning, we interpret the 1999
amendment to clarify that a child may only be adjudicated as abused if the risk of harm is
caused by a parent, guardian, or custodian of the child. Section 32A-4-2(B)(1) (1999). The
previous version of the statute, which read only that an “abused child” means a child “who
is at risk of suffering serious harm[,]” would have, by its plain language, allowed a child to
be adjudicated as abused in situations where, for example, a child was being bullied at
school, a child was being sexually abused by a neighbor, or perhaps even when a child was
playing in a particularly rough football league. See § 32A-4-2(B)(1) (1997). In these
situations, the child’s parent, guardian, or custodian may not be putting the child in harm’s

                                                6
way and, therefore, it would not be beneficial to adjudicate a child as abused, take the child
into CYFD custody, and begin a process leading to the termination of parental rights.

{14} Our interpretation is consistent with the policy considerations underlying the child
abuse statute. In every case brought under the Children’s Code, the “child’s health and
safety shall be the paramount concern.” NMSA 1978, § 32A-1-3(A) (2009). We have long
held that all parents have a duty to protect their children from harm. Perry v. Williams,
2003-NMCA-084, ¶ 19, 133 N.M. 844, 70 P.3d 1283. Courts must “recognize that the
child’s best interest is paramount throughout the proceedings. Thus, the district court need
not place children in a legal holding pattern, while waiting for the parent to resolve the issues
that caused their children to be deemed neglected or abused.” State ex rel. Children, Youth
& Families Dep’t v. Maria C., 2004-NMCA-083, ¶ 53, 136 N.M. 53, 94 P.3d 796 (citation
omitted). Given these policy concerns, it would be illogical to read the statute in a way that
would allow parents to abuse a child so long as there are no witnesses, the child is too young
to provide evidence, and neither parent admits to the abuse or provides evidence against the
other parent. See Hess Corp. v. N.M. Taxation & Revenue Dep’t, 2011-NMCA-043, ¶ 12,
149 N.M. 527, 252 P.3d 751 (holding that statutes “are to be interpreted in accordance with
the legislative intent and in a manner that will not render the statutes’ application absurd,
unreasonable, or unjust” (internal quotation marks and citation omitted)), cert. denied, 2011-
NMCERT-003, 150 N.M. 619, 264 P.3d 520.

{15} Additionally, we disagree with Mother’s and Father’s interpretation of Vincent L. and
read Vincent L. to draw the same conclusion as we have in this case. While Vincent L. held
that, under the pre-1997 version of the statute, the court was required to assign responsibility
for the abuse or neglect to a parent, guardian, or custodian, it did not hold that the court was
required to specifically assign responsibility between two parents. 1998-NMCA-089, ¶¶ 1,
10. We find this distinction significant. The district court in Vincent L. specifically noted
that, at all relevant times, the infant child had been in the custody of the mother, father,
grandmother, and a babysitter. Id. ¶ 4. There is no indication that the court determined that
it could rule out the grandmother and the babysitter as potential abusers. Id. ¶ 7. Without
ruling out the grandmother and the babysitter, the district court could not make a
determination that the abuse was caused by the action or inaction of “a parent, guardian, or
custodian.” Id. ¶¶ 7-10.

{16} Conversely, the district court in this case was able to determine that the abuser was
either Mother or Father and, therefore, that the abuse was caused by “a parent, guardian, or
custodian” as required by the statute. At all relevant times, Infant Child was in the custody
of Father, Mother, the grandmother, and medical staff at the hospital. Both parents denied
inflicting the abuse, and neither parent blamed the other. They offered different explanations
as to who may have inflicted the injuries, including Older Child, the hospital staff, and an
evil spirit in their home. The medical experts specifically rejected these theories as
inconsistent with the types of injuries sustained by Infant Child, and the district court
indicated that it did not believe Mother’s and Father’s explanations for Infant Child’s
injuries. The court specifically rejected Mother’s and Father’s arguments, stating that it had

                                               7
“no problem” determining that the abuse was caused by either Mother or Father. We see a
significant distinction between a court being unable to determine whether the abuser was a
parent, grandparent, or a babysitter and a court being unable to determine whether the abuser
is a mother or father.

{17} To the extent that Father separately argues that there was insufficient evidence to
adjudicate Older Child as abused, we disagree. This Court has held that “[w]hile abuse of
a sibling may be insufficient to justify terminating parental rights, it is evidence that should
be considered in determining whether a child has been placed in danger.” In re I.N.M., 105
N.M. 664, 668, 735 P.2d 1170, 1174 (Ct. App. 1987); see State ex rel. Children, Youth &
Families Dep’t v. Shawna C., 2005-NMCA-066, ¶ 26, 137 N.M. 687, 114 P.3d 367 (noting
that past harm to other children is relevant in determining the abuse and neglect of a different
child). In In re I.N.M., this Court found that a sibling’s serious injuries combined with
testimony about the parents’ physical abuse of a sibling “support[ed] the [district] court’s
finding that the parents have placed [the child] in situations that could have endangered his
life or health[.]” 105 N.M. at 669, 735 P.2d at 1175. As we explained, “[u]nder our statutes,
it is not necessary to wait until a child has been injured, since knowingly, intentionally, or
negligently placing a child in danger constitutes abuse . . . and is a ground for terminating
parental rights.” Id. Similarly, in State ex rel. Children, Youth & Families Department v.
David F., Sr., we found that even though the child was “taken into CYFD custody at the time
of birth, and was therefore never in [the p]arents’ care, the court could rely on evidence of
neglect or abuse to the other children as a factor in determining whether parental rights to
[the child] should be terminated.” 1996-NMCA-018, ¶ 36, 121 N.M. 341, 911 P.2d 235.

{18} Here, where there was evidence showing multiple serious injuries to Infant Child,
and the district court had determined that the injuries were caused by Infant Child’s primary
caretakers, either Mother or Father or both, there was sufficient evidence to find abuse of
Older Child. “[W]hile a court may not speculate as to the future care of a child, the primary
consideration is the best interests and welfare of the child and the court should not be forced
to refrain from taking action until each child suffers an injury.” In re I.N.M., 105 N.M. at
669, 735 P.2d at 1175.

{19} Finally, we note that at this point in the proceedings, the district court was only
adjudicating Children as abused and not terminating parental rights. Adjudicating a child
as abused begins the process of implementing a parenting plan and, if the parents are not able
to abide by the parenting plan, then their parental rights eventually may be terminated.
However, at this stage in the proceedings, it is important for CYFD to act quickly to protect
children from serious harm like the injuries suffered by Infant Child in this case. We affirm
the district court’s adjudication of Children as abused.

The Statute Is Not Unconstitutionally Vague

{20} Father also argues that the term “risk” as used in Section 32A-4-2(B)(1), as applied
to him, is unconstitutionally vague because it fails to adequately notify Father of the conduct

                                               8
it proscribes. “We review a challenge to the constitutionality of a statute de novo.” Shawna
C., 2005-NMCA-066, ¶ 24. “A void-for-vagueness attack need not be preserved to enable
our review.” Id.

{21} Before analyzing Father’s argument, we note that Father only cites one case, Shawna
C., for his argument that the term is unconstitutionally vague. However, this Court in
Shawna C. expressly held that the term “at risk of suffering serious harm” was not
unconstitutionally vague, as applied to the mother in that case. Id. ¶ 31 (internal quotation
marks and citation omitted). Although Shawna C. analyzed an “as applied” vagueness
challenge, id., we find no reason to depart from its holding here.

{22} A strong presumption of constitutionality underlies each statute, and Father bears the
burden of proving unconstitutionality beyond all reasonable doubt. State v. Laguna,
1999-NMCA-152, ¶ 24, 128 N.M. 345, 992 P.2d 896. A claim of vagueness is analyzed
according to the particular facts of each case. State v. Luckie, 120 N.M. 274, 276, 901 P.2d
205, 207 (Ct. App. 1995). “In determining vagueness, we consider the words in the context
in which they are used.” State ex rel. Health & Soc. Servs. Dep’t v. Natural Father, 93 N.M.
222, 225, 598 P.2d 1182, 1185 (Ct. App. 1979).

{23} “A statute may be void for vagueness if its meaning is so uncertain that the court is
unable, by the application of known and accepted rules of construction, to determine what
the Legislature intended with any reasonable degree of certainty.” State v. Castillo,
2011-NMCA-046, ¶ 22, 149 N.M. 536, 252 P.3d 760 (alterations, internal quotation marks,
and citation omitted), cert. denied, 2011-NMCERT-004, 150 N.M. 648, 264 P.3d 1171. We
concluded above that Children were properly adjudicated as abused under the plain language
of Section 32A-4-2(B)(1). Because we are able to determine the legislative intent through
established rules of statutory interpretation, the statute is not unconstitutionally vague. See
Castillo, 2011-NMCA-046, ¶ 22. For these reasons, we are not persuaded that Section 32A-
4-2(B)(1) is unconstitutionally vague as applied to Father.

CONCLUSION

{24} We affirm the district court’s order adjudicating Children as abused by Mother and
Father. Further, we hold that the child abuse statute is not so vague as to violate Father’s
substantive due process protections.

{25}   IT IS SO ORDERED.

                                               ____________________________________
                                               LINDA M. VANZI, Judge

WE CONCUR:

____________________________________

                                              9
JONATHAN B. SUTIN, Judge

____________________________________
CYNTHIA A. FRY, Judge

Topic Index

CHILDREN
Termination of Parental Rights

CRIMINAL LAW
Child Abuse and Neglect

CONSTITUTIONAL LAW
Vague or Overbroad

STATUTES
Interpretation
Legislative Intent




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