                                            I attest to the accuracy and
                                             integrity of this document
                                               New Mexico Compilation
                                             Commission, Santa Fe, NM
                                            '00'04- 13:59:56 2016.10.25

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-093

Filing Date: August 31, 2016

Docket No. 34,327

IN THE MATTER OF THE ADOPTION
PETITION OF DARLA D. and PATTY R.,

       Petitioners-Appellees,

v.

GRACE R.,

       Respondent-Appellant,

and

IN THE MATTER OF TRISTAN R.,

       Child.

APPEAL FROM THE DISTRICT COURT OF MORA COUNTY
Gerald E. Baca, District Judge

Caren I. Friedman
Santa Fe, NM

Brown & Gallegos
Flora Gallegos
Las Vegas, NM

for Appellees

Jane B. Yohalem
Santa Fe, NM

for Appellant

Law Office of Aida Medina Adams
Aida Medina Adams

                                  1
Santa Rosa, NM

Guardian Ad Litem

                                         OPINION

VANZI, Judge.

{1}      Grace R. (Mother) appeals from the district court’s letter decision and decree of
adoption and termination of parental rights, terminating her parental rights to Tristan R.
(Child) and granting the verified petition for adoption and termination of parental rights (the
petition) filed by Darla D. and Patty R. to adopt Child pursuant to the provisions of the
Adoption Act, NMSA 1978, §§ 32A-5-1 to -45 (1993, as amended through 2012). Mother
challenges the letter decision and decree on numerous grounds, including that her
constitutional and statutory rights were violated and that there was insufficient evidence to
support the termination of her parental rights. We agree with Mother that multiple procedural
and constitutional violations infected the proceedings below. We further conclude that the
district court’s rulings that Mother abused and neglected Child and that the conditions and
causes of such neglect and abuse are unlikely to change in the foreseeable future are not, as
they must be, supported by clear and convincing evidence. We therefore reverse.

BACKGROUND

{2}     We begin with an overview of the factual and procedural background. Additional
details necessary to our analysis of particular issues are provided in the discussion section
below.

{3}    Mother, who suffers from depression and post-traumatic stress disorder as well as a
physical illness, has been receiving support and therapy services through Life Link since
about August 2009. In May 2013 Life Link lost funding for the program that subsidized
Mother’s rent, requiring Mother to move from the home in Santa Fe, New Mexico that she
had been sharing with her boyfriend, Child, and Child’s older sister. Concerned about
finding housing she could afford, Mother became depressed and overwhelmed. On the
morning of May 23, 2013, with a few days left to move and her daughter getting ready for
summer school, Mother got into an argument with her boyfriend and began yelling at him.
When he tried to restrain her, Mother “scratched and bit at him[.]” The police were called,
and Mother was arrested and jailed for five days. She pleaded guilty to disorderly conduct
and was sentenced to ten hours of community service and six months of unsupervised
probation.

{4}    While Mother was in jail, her children remained with her boyfriend. The Children,
Youth and Families Department (CYFD) checked on the welfare of the children and
determined that they were safe in his care. When Mother was released from jail, she
contacted the Santa Fe CYFD office and asked CYFD worker Denise Shirley for help.

                                              2
Mother explained to Shirley that she felt her emotional stability was at risk: She was going
to lose her home and had no family support, and she was requesting services offered by
CYFD because they had been helpful in the past.

{5}     CYFD and Mother agreed on a safety plan for the care of the children while Mother
sought intensive treatment from Life Link to address her anxiety disorder and to help with
coping skills. The safety plan provided that Child’s older sister would fly to New Jersey to
live with her biological father and Child would reside with his paternal grandmother, Darla
D. (Grandmother). Although the children were not in CYFD custody, the safety plan was to
remain “in effect until further reassessment by the family’s CYFD caseworker.”

{6}     On May 31, 2013, Grandmother and her partner, Patty R., (collectively, Petitioners)
picked up Child at Mother’s residence and took him to their home in Mora, New Mexico.
While Child was living with Petitioners, Mother saw a counselor and caseworker at Life
Link. She was placed on a waiting list for the Life Link intensive program but participated
in the program as a “casual member” between July and September, attending therapy three
times a week. In September 2013 Mother became an official member of the program. At the
time of trial, Mother continued to receive counseling through Life Link.

{7}     During the summer of 2013, Mother talked to Child on the phone at least once a
week. Between August and September, she also saw Child four times when Grandmother
was in Santa Fe with him. Later, Mother started calling Child nightly. However, Petitioners
told Mother that the nightly calls were disruptive. They set up a schedule for Mother to call
two days a week but sometimes did not answer the phone. Mother left messages stating her
frustration with not being able to talk to Child.

{8}     In early October 2013 Mother told Grandmother that she wanted to begin to
reintegrate Child back into her life and that she was hoping to have him back in Santa Fe
after Christmas. In November 2013 Grandmother had a disagreement with Mother
concerning how often Mother could speak with Child and, shortly thereafter, Mother learned
that Grandmother was trying to “serve [her] with something.” In fact, Grandmother had filed
a petition for a restraining order (TRO petition) against Mother in the San Miguel County
District Court, seeking to prevent Mother from having any contact with her or Child. The
TRO petition was dismissed in early December 2013, after the district court held a hearing
and concluded that Mother should visit Child and that phone calls should occur regularly.
At that point, Mother had not seen Child in about a month and a half.

{9}     In November 2013 after the TRO petition was filed, Mother was served with
Petitioners’ petition to terminate parental rights and to adopt Child in a closed adoption. The
petition, which had been filed almost a month earlier in a separate proceeding in the district
court, sought termination of the parental rights of Child’s biological parents “on the basis
of voluntary relinquishment of parental rights” and requested a judgment declaring the
closed adoption of Child by Petitioners.


                                              3
{10} On March 3, 2014, after a hearing, the district court appointed a guardian ad litem
(GAL)—selected by Petitioners—for Child. The court held a merits hearing on the petition
(for ease of reference, trial) on July 15 and 25, 2014, and entered its letter decision nearly
three months later, on October 8, 2014. The letter decision contains no factual findings and
merely states the following conclusions: Child “has been abused or neglected while in the
care and custody of [Mother], and the conditions and causes of the neglect or abuse are
unlikely to change in the foreseeable future”; Child “has been abandoned by his parents in
that [C]hild has been placed in the care of [P]etitioners by [Mother]”; and “all of the
conditions set forth in Section 32A-5-15(B)(3)(a-e) . . . exist and have not been rebutted by
[Mother.]” No party filed proposed findings of fact and conclusions of law. The decree of
adoption and termination of parental rights was filed on November 5, 2014. This appeal
followed.

DISCUSSION

{11} Our courts have repeatedly recognized that a biological parent’s right to the care and
custody of her child implicates fundamental liberty interests protected by the Due Process
Clauses of the federal and state constitutions. See State ex rel. Children, Youth & Families
Dep’t v. John R., 2009-NMCA-025, ¶ 27, 145 N.M. 636, 203 P.3d 167 (stating that “a parent
has a fundamental interest in the care, custody, and control of his or her children”); see also
Santosky v. Kramer, 455 U.S. 745, 753 (1982) (recognizing “[t]he fundamental liberty
interest of natural parents in the care, custody, and management of their child”); State ex rel.
Children, Youth & Families Dep’t v. Joe R., 1997-NMSC-038, ¶ 29, 123 N.M. 711, 945 P.2d
76 (“[A parent’s] rights and obligations . . . are protected by his constitutional right to due
process.”); Ronald A. v. State ex rel. Human Servs. Dep’t, 1990-NMSC-071, ¶ 3, 110 N.M.
454, 797 P.2d 243 (noting that a parent’s right to custody is constitutionally protected).
Although a parent’s right is fundamental and superior to the claims of other persons and the
government, it is not absolute. See In re Adoption of Francisco A., 1993-NMCA-144, ¶ 20,
116 N.M. 708, 866 P.2d 1175 (“It is well established in New Mexico that parents do not
have absolute rights in their children; rather parental rights are secondary to the best interests
and welfare of the children.”); In re Adoption of Bradfield, 1982-NMCA-047, ¶ 16, 97 N.M.
611, 642 P.2d 214 (noting that “[t]he paramount issue in an adoption proceeding . . . is the
welfare of the child”). Nevertheless, to comply with due process requirements, actions to
terminate a parent’s rights “must be conducted with scrupulous fairness.” State ex rel.
Children, Youth & Families Dep’t v. Lorena R., 1999-NMCA-035, ¶ 19, 126 N.M. 670, 974
P.2d 164 (alteration, internal quotation marks, and citation omitted). The provisions of the
Adoption Act governing proceedings for adoption of children and concurrent termination
of parental rights, discussed below, reflect the constitutional dimension of the rights at stake.

{12} Mother makes several arguments on appeal. She contends that the district court
disregarded due process and statutory requirements for proceedings to terminate parental
rights, including by failing to inform her of her right to court-appointed counsel and
requiring her to share the cost of the GAL. She argues that the district court abused its
discretion by (1) admitting into evidence and relying on the GAL’s investigatory report,

                                                4
which included portions of the CYFD file; (2) failing to exclude hearsay and double hearsay
in the testimony of CYFD worker Kurt Smith; and (3) allowing Child’s therapist to testify
despite her refusal to produce her treatment notes. Mother also contends that the decision
terminating her parental rights is not supported by clear and convincing evidence. We agree.
We also conclude that the petition was improperly filed and should have been dismissed at
the inception of this case.

{13} We note at the outset that it appears that this matter was erroneously treated as an
abuse and neglect case under the Abuse and Neglect Act, NMSA 1978, §§ 32A-4-1 to -34
(1993, as amended through 2016), rather than as a proceeding under the Adoption Act for
adoption and concurrent termination of parental rights. We begin by discussing the
requirements for proceedings under the Adoption Act, and some of the multitude of failures
by Petitioners, the GAL, and the district court to follow those requirements. We then address
errors and abuses of discretion in the conduct of the trial that led to the improper termination
of Mother’s parental rights.

Failure to Follow the Strict Requirements for Adoption Requires Reversal

{14} The record reveals a host of violations of the Adoption Act, any one of which would
warrant reversal. Our review is de novo. Helen G. v. Mark J. H., 2008-NMSC-002, ¶ 7, 143
N.M. 246, 175 P.3d 914; State ex rel. Children, Youth & Families Dep’t v. Carl C., 2012-
NMCA-065, ¶ 8, 281 P.3d 1242. To the extent that some of these issues have been raised for
the first time on appeal, we review for fundamental error. See State ex rel. Children, Youth
& Families Dep’t v. Paul P., Jr., 1999-NMCA-077, ¶ 14, 127 N.M. 492, 983 P.2d 1011
(stating that “termination of parental rights cases can be candidates for fundamental error
analysis”).

{15} The overarching purpose of the Adoption Act is to “establish procedures to effect a
legal relationship between a parent and adopted child” and to “ensure due process
protections.” Section 32A-5-2(A), (C). Only an “individual who has been approved by the
court as a suitable adoptive parent pursuant to the provisions of the Adoption Act” may
adopt. Section 32A-5-11(B)(1) (emphasis added). The record reveals consistent failures to
comply with the Adoption Act’s requirements. We proceed chronologically, beginning with
the petition.

Requirements for Verified Petition for Adoption

{16}   As relevant here, Section 32A-5-12 of the Adoption Act provides:
              A.      No petition for adoption shall be granted by the court unless
       the adoptee was placed in the home of the petitioner for the purpose of
       adoption:

                       (1) by the department;
                       (2) by an appropriate public authority of another state;

                                               5
                       (3) by an agency; or
                       (4) pursuant to a court order, as provided in Section 32A-5-13.

               ....

               C.    When an adoptee is not in the custody of the department or an
       agency, the adoption is an independent adoption and the provisions of this
       section and Section 32A-5-13 . . . shall apply, except when the following
       circumstances exist:

               ....

                       (2) a relative within the fifth degree of consanguinity to the
       adoptee or that relative’s spouse seeks to adopt the adoptee, and, prior to the
       filing of the adoption petition, the adoptee has lived with the relative or the
       relative’s spouse for at least one year[.]

(Emphasis added.)

{17} The language of the Adoption Act is unambiguous. Petitioners could petition for
adoption of Child only if the requirements of either Section 32A-5-12(A) or (C) were met.
To the extent Petitioners imply that Child was “placed” with them under Section 32A-5-
12(A)(1), they are wrong. The record is clear and undisputed that CYFD never took custody
of Child. Accordingly, CYFD could not “place” him in the home of Petitioners for any
purpose. See § 32A-5-3(K) (“ ‘[D]epartment adoption’ means an adoption when the child
is in the custody of [CYFD.]”); see also In re Adoption of Doe, 1982-NMCA-094, ¶ 47, 98
N.M. 340, 648 P.2d 798 (noting that the mother’s act of leaving child with her ex-husband
was not a “placement” for purposes of adoption under the Adoption Act). And certainly
nothing in the safety plan or the record as a whole shows that CYFD “placed [Child] in the
home of [Petitioners] for the purpose of adoption[.]” Section 32A-5-12(A) (emphasis added).
Indeed, if Child had been “placed” with Petitioners, then the district court should have
required pre- and post-placement studies pursuant to Sections 32A-5-14 and -31. The pre-
placement study is a written evaluation, paid for by the petitioner, of the adoptive family, the
adoptee’s biological family, and the adoptee. See §§ 32A-5-3(U), -13(B), -14(B). The post-
placement report is a written evaluation of the adoptive family and the adoptee after the
adoptee is placed for adoption. Section 32A-5-3(T). Here, the court never required any such
study at the commencement of the proceeding and, in fact, declared in the decree that none
was required, further belying Petitioners’ implication that Child was “placed” with them for
adoption. In short, Section 32A-5-12(A) did not provide a basis for the petition.

{18} Nor could the petition properly be filed in reliance on Section 32A-5-12(C)(2), as the
record makes plain that the threshold requirements of this provision also were not met. The
petition, filed on October 23, 2013, states that “[C]hild has lived with . . . Petitioners since
May 2013.” It is evident from the face of the petition itself, then, that Child had lived with

                                               6
Petitioners for a mere five months, and not “for at least one year” prior to the filing of the
adoption petition, as the Adoption Act requires. Accordingly, Petitioners’ own allegations
show that Section 32A-5-12(C)’s statutory prerequisite was not met and that, therefore, they
were not entitled to bring an action seeking an independent adoption under the Adoption
Act. See In re Adoption of Webber, 1993-NMCA-099, ¶ 8, 116 N.M. 47, 859 P.2d 1074
(stating that the one-year residency provision is “a statutory prerequisite to . . . adoption and
a safeguard to ensure that the best interests of the child are met by allowing the adoption”).

{19} Given that the statutory prerequisite was not met, had Petitioners wished to pursue
the adoption of Child at any time prior to May 31, 2014, they would have been required to
obtain a court order placing Child in their home for the purpose of adoption. See § 32A-5-
12(A)(4). Such an order requires compliance, not only with Sections 32A-5-14(C) or -31(C),
but also with Section 32A-5-13(A), which requires a petitioner to file a request with the
court to allow the placement and directs that “[a]n order permitting the placement shall be
obtained prior to actual placement.” (Emphasis added.) Petitioners never sought any such
order prior to May 2013.

{20} Instead, Petitioners alleged, citing Sections 32A-5-31(C) and 32A-5-14(C), that
“[p]lacement is not required because this is a relative adoption within the fifth degree of
consanguinity to the adoptee.” Petitioners are wrong. First, neither Section 32A-5-14(C) nor
-31(C) deals with “placement” but rather, as discussed above, with pre- and post-placement
studies, neither of which were ordered by the district court. Moreover, both provisions state
that pre- and post-placement reports are “not required in cases in which the child is being
adopted by a stepparent, a relative or a person named in the child’s deceased parent’s will
pursuant to Section 32A-5-12.” Sections 32A-5-14(C) and -31(C) (emphasis added). Thus,
the Adoption Act provides that “[n]o petition for adoption shall be granted by the court”
unless the requirements of Section 32A-5-12 are met. Section 32A-5-12(A). Sections 32A-5-
31(C) and 32A-5-14(C) provide no basis to circumvent those requirements.

{21} In summary, the petition was improperly filed, and the district court should have
dismissed it immediately as a matter of law for failure to meet the Adoption Act’s
requirements. Although reversal is mandated for this reason alone, we continue our analysis
because the number, severity, and aggregate effect of errors in the conduct of the
proceedings below demand our attention and censure.

Termination Procedures

{22} The district court failed to heed and enforce procedural safeguards applicable to
proceedings to terminate parental rights under the Adoption Act. In pertinent part, Section
32A-5-16 requires:

               E.     The court shall, upon request, appoint counsel for an indigent
        parent who is unable to obtain counsel or if, in the court’s discretion,
        appointment of counsel for an indigent parent is required in the interest of

                                               7
       justice. Payment for the appointed counsel shall be made by the petitioner
       pursuant to the rate determined by the [S]upreme [C]ourt of New Mexico for
       court-appointed attorneys.

              F.     The court shall appoint a guardian ad litem for the child in all
       contested proceedings for termination of parental rights. . . .

              G.       Within thirty days after the filing of a petition to terminate
       parental rights, the petitioner shall request a hearing on the petition. The
       hearing date shall be at least thirty days after service is effected upon the
       parent of the child or completion of publication.

{23} We begin with Subsection (E)’s requirement that the court must appoint counsel for
an indigent parent either upon request or in the interest of justice. The record shows that,
although the district court was made aware that Mother was indigent, it never informed
Mother that it would appoint counsel for her if she was indigent and requested counsel.
Mother’s indigency became clear at the very first hearing in the case in February 2014.
Petitioners’ counsel told the court that counsel for Mother was concerned that Mother could
not pay half the cost of the GAL to be appointed for Child. Mother’s counsel elaborated,
stating his concern that Mother could not pay for the GAL because she was on Social
Security Disability Income (SSDI) and the amount she received was “barely enough for her
to live on.” He explained that he was working on the case mostly pro bono. Although Mother
had paid him a small amount of money, “this is . . . a largely pro bono case.”

{24} We recognize that Mother was not pro se but represented by “largely pro bono”
counsel. But we have previously held that “a court must advise a parent in termination
proceedings under the adoption provisions of the Children’s Code that he or she is entitled
to have counsel appointed if indigency can be established.” Chris & Christine L. v. Vanessa
O., 2013-NMCA-107, ¶ 18, 320 P.3d 16. Given that Mother’s indigency was pointed out to
the court at the first hearing, it was incumbent upon the court to advise Mother of her
statutory right to counsel upon a showing of indigency. As we noted in Chris & Christine
L., the right to counsel “is meaningless if the parent is unaware of the right.” Id. ¶ 17. Not
only did the court fail to advise Mother of this statutory right, it inexplicably proceeded to
order Mother to pay one-third of the GAL’s fee, as discussed below.

{25} We conclude that the court’s failure to advise Mother that she would be entitled to
appointed counsel—paid for by Petitioners—if she could establish indigency violated her
rights under the Adoption Act, was in derogation of her due process rights, and constitutes
fundamental error. See § 32A-5-2(C) (stating that one purpose of the Adoption Act is to
“ensure due process protections”); Paul P., Jr., 1999-NMCA-077, ¶ 15 (stating that “the
procedures set out in the Children’s Code for termination of parental rights suffice to insure
a parent’s due process rights”). This established right is viewed by our precedent as critical
to the circumstance in which a parent’s constitutional right to the care and custody of his or
her child is implicated. While pro bono legal representation is both commendable and

                                              8
important to legal proceedings of all sorts in New Mexico, Mother nonetheless was not given
an opportunity for appointed counsel that was her right to accept or reject.

{26} We next address 32A-5-16(F)’s requirement that the court “shall appoint a guardian
ad litem for the child in all contested proceedings for termination of parental rights.” As
noted, the GAL was contacted and selected by Petitioners’ counsel, who had discussed the
case with her prior to the hearing on the motion for appointment of a GAL for Child. The
record is silent as to what information, if any, the GAL received from Petitioners concerning
the case. Nor is there any indication that Mother’s counsel or the district court spoke with
the proposed GAL before she was appointed. In fact, it is apparent from the transcript that
the GAL, who was “new to the district” according to Petitioners’ counsel, was not present
at the hearing on her appointment. Nothing in the Adoption Act prescribes a method for
appointing a GAL. Nevertheless, we think that, in the circumstances presented here, the
judicial duty to ensure that procedures implicating a parent’s due process rights are
conducted with “scrupulous fairness,” see Lorena R., 1999-NMCA-035, ¶ 19, required the
district court to confirm that the GAL was properly informed as to her responsibilities under
New Mexico law, was not biased and was able to adequately represent Child’s interest. And
we conclude that the district court’s apparent failure to inquire about the adequacy of the
GAL’s representation of Child’s interest constitutes an abuse of discretion.

{27} We also conclude that the district court abused its discretion in requiring Mother to
pay one-third of the cost of the GAL that Section 32A-5-16(F) requires to be appointed “in
all contested proceedings for termination of parental rights[,]” despite having been informed
that Mother could not afford to pay even a portion of the $150 hourly fee. Accepting
Petitioners’ representation that the GAL anticipated spending about ten hours on the case,
Mother’s one-third portion of the fee would have amounted to more than one-third of her
total monthly income, which was already “barely enough for her to live on.” Even
Petitioners’ counsel asked if there was a discretionary fund that might be used to assist
Mother. But the district court asked Mother’s counsel if there were “any resources there to
assist her in getting that payment taken care of” and then required Mother to pay one-third
of the GAL fee.

{28} The Adoption Act prescribes no requirements for payment of GAL fees in contested
adoption proceedings, and district courts consequently have broad discretion in apportioning
those fees among the parties. But given the representations of counsel for both sides
concerning Mother’s inability to pay in this case, we conclude that the court abused its
discretion in requiring Mother to pay one-third of the GAL fee.

{29} The district court, moreover, confused the role of the GAL in this adoption
proceeding with that of a GAL in a domestic relations custody dispute, an error that resulted
in additional erroneous rulings contributing to the district court’s decision to terminate
Mother’s parental rights. We discuss these rulings and their impact on the court’s decision
more fully below, but pause here to explain.


                                             9
{30} The Adoption Act states that the court shall appoint a GAL for the child in all
contested proceedings. Section 32A-5-16(F) and -33. As set forth in the Children’s Code,
the duties of the GAL are to “zealously represent the child’s best interests in the proceeding
for which the [GAL] has been appointed and in any subsequent appeals.”1 NMSA 1978, §
32A-1-7(A) (2005). The Children’s Code further requires that “[a]fter consultation with the
child, a [GAL] shall convey the child’s declared position to the court at every hearing.”
Section 32A-1-7(D). And it lists certain mandatory duties and responsibilities, including
consistent contact with the child and communications with professionals involved in the
child’s case. Section 32A-1-7(E).

{31} The district court erroneously determined that the GAL’s role and duties were
governed by Rule 1-053.3(A) NMRA, which allows a court to appoint a GAL in “any
proceeding when custody of a minor child is contested under Chapter 40” (Domestic
Affairs). While the Adoption Act “ensure[s] due process protections” in proceedings to
determine whether to terminate a parent’s ties with her child, see § 32A-5-2(A), (C), the rule
exists to assist the court in determining how both parents should best care for their children.
See Rule 1-053.3(A) (stating that “[t]he [GAL] serves as an arm of the court and assists the
court in discharging its duty to adjudicate the child’s best interests”). There are marked
differences between the appointment and role of the GAL in the two types of cases. For
example, unlike the mandatory requirement to appoint a GAL in a contested
adoption/termination of parental rights proceeding, the appointment of a GAL in a domestic
relations matter is discretionary. See id. (stating that the court “may appoint” a GAL); see
also Rule 1-053.3(E) (listing seventeen factors to consider in determining whether an
appointment will be made). And while Rule 1-053.3(B) requires that the appointment order
specify the GAL’s role, tasks, duties, and any limitations and allows the parties to agree to
adopt the GAL’s recommendations, see Rule 1-053.3(G), the Adoption Act does not. Given
these differences, and for reasons discussed more fully below, we conclude that the district
court erred in applying Rule 1-053.3 to the adoption and termination proceeding at issue
here.

{32} We briefly address Section 32A-5-16(G)’s requirement that the petitioner shall
request a hearing on the petition within thirty days after the filing of a petition to terminate
parental rights. Petitioners filed the petition on October 23, 2013, and did not file a request
for a hearing on the petition until April 14, 2014, well after the thirty-day deadline. And by
the time final judgment was entered on November 5, 2014, over a year had elapsed since the
petition was filed. The length of time it took for this case to be decided did not inure to the
benefit of Child, now almost ten years old and, in fact, may well have been detrimental to
him.

Other Factors Contributing to Error in this Case



       1
        We note that the GAL has not participated in any way in this appeal.

                                              10
{33} We also briefly address Petitioners’ failure to meet the statutory requirements for
establishing relinquishment by a parent and for providing an accounting of disbursements,
and the district court’s own failure to apply the correct statute. First, the sole justification
asserted in the petition for seeking termination of Mother’s parental rights is “on the basis
of voluntary relinquishment.” Yet nowhere do Petitioners demonstrate compliance with
Sections 32A-5-21 and -22, which apply when a petitioner is seeking to adopt on the basis
of a relinquishment of parental rights. Second, Section 32A-5-34(A) states that “[p]rior to
the final hearing on a petition, the petitioner shall file a full accounting of all disbursements
of anything of value made or agreed to be made by or on behalf of the petitioner in
connection with an adoption.” We have searched the record and found no evidence that any
such report was ever filed.

{34} The ultimate question in considering the many aforementioned failures to comply
with the Adoption Act that preceded the district court’s grant of the petition is whether these
failures substantially increased the risk of an erroneous decision to terminate Mother’s
parental rights. See State ex rel. Children, Youth & Families Dep’t v. Maria C., 2004-
NMCA-083, ¶ 37, 136 N.M. 53, 94 P.3d 796. In this regard, Mother need only demonstrate
that there is “a reasonable likelihood that the outcome might have been different.” Id. We
conclude that the outcome might well have been different had the petition filed without a
proper statutory basis been dismissed; had Mother been advised of her right to court-
appointed counsel upon a showing of indigency; had a GAL been selected with proper court
oversight; and had Mother not been required to spend a significant portion of her SSDI
benefits on the GAL fee.

{35} Although we conclude that reversal is warranted for the reasons already stated, we
address Mother’s argument that the district court’s decision to terminate her parental rights
was not supported by substantial evidence and other issues related to the trial.

The Decree Is Not Supported by Clear and Convincing Evidence and Is Erroneous as
a Matter of Law to the Extent It Was Based on Alleged Abuse and Neglect

{36} The standard of proof for termination of parental rights is clear and convincing
evidence. Sections 32A-5-16(H) and -36(E); State ex rel. Children, Youth & Families Dep’t
v. Vanessa C., 2000-NMCA-025, ¶ 24, 128 N.M. 701, 997 P.2d 833. We will affirm the
district court’s decision resulting in the termination of parental rights if its findings are
supported by clear and convincing evidence and if it applied the proper rule of law. State ex
rel. Dep’t of Human Servs. v. Minjares, 1982-NMSC-065, ¶ 12, 98 N.M. 198, 647 P.2d 400.
“Clear and convincing evidence” is defined as evidence that “instantly tilt[s] the scales in
the affirmative when weighed against the evidence in opposition and the fact finder’s mind
is left with an abiding conviction that the evidence is true.” In re Termination of Parental
Rights of Eventyr J., 1995-NMCA-087, ¶ 2, 120 N.M. 463, 902 P.2d 1066 (internal quotation
marks and citation omitted). “The function of the appellate court is to view the evidence in
the light most favorable to the prevailing party, and to determine therefrom if the mind of
the fact[]finder could properly have reached an abiding conviction as to the truth of the fact

                                               11
or facts found.” State ex rel. Children, Youth & Families Dep’t v. Michelle B., 2001-NMCA-
071, ¶ 12, 130 N.M. 781, 32 P.3d 790 (internal quotation marks and citation omitted).
Applying this standard here requires that we evaluate whether the district court could have
found by clear and convincing evidence the necessary statutory requirements for termination.
Id. ¶ 20; State ex rel. Children, Youth & Families Dep’t v. Patricia N., 2000-NMCA-035,
¶ 10, 128 N.M. 813, 999 P.2d 1045. To the extent we must interpret the Adoption Act’s
provisions, our review is de novo. Helen G., 2008-NMSC-002, ¶ 7.

{37} As we have noted, the parties did not file any proposed findings of fact and
conclusions of law, and the district court did not enter any findings and conclusions
supporting its decisions to terminate Mother’s parental rights and grant Petitioners’ request
to adopt Child. The court’s failure to make specific findings has greatly hampered our ability
to review the issues raised on appeal. Nevertheless, we have carefully reviewed the record
and now address the question whether Petitioners have “present[ed] and prove[d] each
allegation set forth in the petition for adoption by clear and convincing evidence.” Section
32A-5-36(E); see § 32A-5-16(H).

{38} The Adoption Act authorizes the termination of parental rights when the child has
been abandoned, neglected or abused, or placed in the care of others and certain conditions
exist. Section 32A-5-15(B). Although Petitioners cite Section 32A-5-15 as the basis for
terminating Mother’s parental rights, the verified petition in this case alleged that Mother’s
parental rights were “being sought to be terminated on the basis of voluntary relinquishment
of parental rights.” Indeed, Petitioners’ counsel repeatedly stated that “voluntary
relinquishment” was the reason for seeking termination of Mother’s parental rights. Yet there
is not a shred of evidence in the record that Mother voluntarily relinquished her parental
rights and, in any event, Petitioners wholly failed to meet Section 32A-5-21(A)’s clear
requirement that any such relinquishment by a parent shall be in writing.

{39} We will then assume that Petitioners meant to seek termination of Mother’s parental
rights based on presumptive abandonment, as the petition’s allegations track several of the
conditions stated in Section 32A-5-15(B)(3) that, if proved, would establish a rebuttable
presumption of abandonment. For example, the petition alleges the following: Child has
lived with Petitioners since May 2013, when Child was placed there by CYFD pursuant to
a safety plan; Child’s sister was placed with her father in New Jersey for the same reasons;
Petitioners financially support Child and provide his educational, medical, and emotional
needs; a parent/child relationship has developed between Petitioners and Child; and Mother
is not capable of caring for Child.

{40} To be clear, Petitioners nowhere assert that Child was abandoned by Mother, as set
forth in Section 32A-5-15(B)(1), or that he was neglected or abused and the conditions and
causes of the neglect and abuse are unlikely to change in the foreseeable future, as set forth
in Section 32A-5-15(B)(2). Nevertheless, and without notice to Mother, Petitioners
proceeded to trial against Mother seeking termination of her parental rights, apparently on
grounds of abandonment, presumptive abandonment, and abuse and neglect. The district

                                             12
court terminated Mother’s parental rights to Child.2 Although the allegations stated in the
petition implicate only presumptive abandonment, we discuss each statutory ground.

Abandonment

{41} We easily dispense with Petitioners’ contention and the district court’s ruling that
Mother abandoned Child. Abandonment, in its purest form, requires a complete renunciation
of responsibility. There is no evidence to support the district court’s determination of
abandonment, let alone clear and convincing evidence.

{42} Mother and CYFD agreed on a safety plan for the Child’s care while Mother sought
intensive treatment from Life Link. The plan provided that Child, who was six-and-a-half
years old at the time, would reside with Grandmother “until further reassessment by . . .
CYFD.” At no time did Mother indicate that she no longer wanted Child; in fact, she was
hoping to get Child back by the start of the school year. There is no evidence that Mother
left Child with Petitioners without communication, either by telephone or in person. To the
contrary, there is unrefuted testimony that, during the summer of 2013, Mother called Child
at least once a week; saw him four times between August and September; and later called
him nightly. Even after Petitioners told Mother that the nightly calls were “disruptive,”
Mother tried to call Child two days a week. And even the GAL concluded that Mother had
not abandoned Child. The district court’s ruling that Mother abandoned Child is entirely
unsupported by the evidence, and we reverse that ruling. As indicated below, the evidence
better supports conduct by Mother for which she is to be commended: She recognized that
her emotional, financial, and living conditions did not allow for the best environment for her
children. She took the opportunity to locate, while she sought help, suitable alternative
homes for her children until she could properly care for them. Nothing in this record—and
we mean nothing—supports relinquishment, abandonment, or anything even suggesting that
Mother sought to permanently yield her liberty right to the custody and care of Child.

Presumptive Abandonment

{43} A rebuttable presumption of abandonment can be raised by showing that the child
has been placed in the care of others, including other relatives, whether by court order or
otherwise, and by establishing the following six additional criteria:

                       (a) the child has lived in the home of others for an extended


       2
         It is unclear from the record whether the district court terminated Mother’s rights
on all three statutory grounds. Both the court’s letter decision and the decree conclude that
Child has been abused and neglected and that the causes and conditions are unlikely to
change. Both also state that Child has been abandoned, citing only the presumptive
abandonment statute. Because of the lack of findings from the district court, we cannot
discern the legal basis for the court’s decision.

                                             13
       period of time;
                     (b) the parent-child relationship has disintegrated;
                     (c) a psychological parent-child relationship has developed
       between the substitute family and the child;
                     (d) if the court deems the child of sufficient capacity to
       express a preference, the child no longer prefers to live with the natural
       parent;
                     (e) the substitute family desires to adopt the child; and
                     (f) a presumption of abandonment created by the conditions
       described in Subparagraphs (a) through (e) of this paragraph has not been
       rebutted.

Section 32A-5-15(B)(3).

{44} In In re Adoption of J.J.B., our Supreme Court addressed the requirements of the
presumptive abandonment statute stating:

       [W]e have emphasized that two factors must both be established to prove
       abandonment: (1) parental conduct evidencing a conscious disregard of
       obligations owed to the child, and (2) this conduct must lead to the
       disintegration of the parent-child relationship. We emphasize that both
       factors must be established to prove abandonment, and that evidence of the
       disintegration of the parent-child relationship is of no consequence if not
       caused by the parent’s conduct.

1995-NMSC-026, ¶ 44, 119 N.M. 638, 894 P.2d 994.

{45} Thus, Petitioners had the burden of proving “that the objective parental conduct [is]
the cause of the destruction of the parental-child relationship.” Id. ¶ 47. The presumption of
abandonment arising from proof of the factors listed in Section 32A-5-15(B)(3) “is
completely rebutted by showing that a parent lacks responsibility for the destruction of the
parent-child relationship.” Adoption of J.J.B., 1995-NMSC-026, ¶ 47.

{46} Petitioners claim they proved that the statutory factors have been met by clear and
convincing evidence. Specifically, they contend that Child has lived with Petitioners “for an
extended period of time”; the parent-child relationship has disintegrated; a psychological
parent-child relationship had developed between them and Child; and Child no longer
prefers to live with Mother. See § 32A-5-15(B)(3)(a)-(d). As proof, Petitioners say that Child
lived with them for over a year at the time of trial and, therefore, the “extended period of
time” requirement has been met. They also contend that they initiated and arranged all visits
between Mother and Child and that Child did not want to engage with Mother during the
visits. These facts, they argue, prove by clear and convincing evidence that the parent-child
relationship has disintegrated. In addition, they say, Child has known Petitioners for a long
time, is bonded to them and loves them, and these circumstances establish a psychological

                                             14
parent-child relationship. Finally, they rely on the testimony of Grandmother and Child’s
therapist that Child’s preference was to live with Petitioners.

{47} We disagree with Petitioners that there is clear and convincing evidence to support
the decree on grounds of presumptive abandonment. As a preliminary matter, we note that
the failure to prove any one of the statutory criteria by clear and convincing evidence is
sufficient to preclude termination of Mother’s parental rights, as the statute makes clear that
all six conditions must exist. See § 32A-5-15(B)(3); § 32A-5-15(C) (stating that a rebuttable
presumption of abandonment exists when the court finds that each of the six factors
enumerated in Section 32A-5-15(B)(3) has been met).

{48} We begin with the requirement that Child lived in Petitioners’ home “for an extended
period of time.” The lengths of time and the surrounding facts vary in the case law, but what
remains constant is deliberate action by the parent to leave the child behind or to refuse to
assume parental responsibilities. While it is true that Child had lived with Petitioners for
over a year at the time of trial, we conclude that this fact, standing alone, is insufficient to
satisfy Section 32A-5-15(B)(3)(a) in the circumstances presented here. Child had lived with
Petitioners only for about five months at the time the petition was filed. Had Petitioners
followed the Adoption Act’s requirement and requested a hearing within thirty days of filing,
instead of waiting six months to do so, it is reasonably likely that Petitioners could not make
this argument today. We discern no justification for the delay in requesting a hearing on the
petition. Further, prior to the filing of the petition, and once Petitioners learned that Mother
wanted Child back, they filed the TRO petition seeking to prevent Mother from having any
contact with Child. There is little question that Petitioners have taken steps to restrict
Mother’s access to Child throughout these proceedings. We reject Petitioners’ attempt to use
their own violation of one statutory requirement (to request a hearing within thirty days of
filing the petition) as evidence of compliance with another statutory requirement (that Child
lived in Petitioners’ home “for an extended period of time”), and conclude that the “extended
period of time” requirement was not met. See § 32A-5-15(B)(3)(a).

{49} We need go no further in reversing the district court’s determination of presumptive
abandonment, but nevertheless briefly address the evidence purportedly supporting the
remaining statutory requirements. With regard to the disintegration of the parent-child
relationship, Petitioners point to evidence that they initiated and arranged visits between
Mother and Child and to Patty R.’s testimony that “most of the visits I’d have to say [Child]
was not very engaged with her. He didn’t want to be.” We have difficulty concluding that
this constitutes clear and convincing evidence that the parent-child relationship had
disintegrated. See, e.g., Adoption of J.J.B., 1995-NMSC-026, ¶ 49 (defining “disintegration”
of the parent-child relationship as the destruction of the parent’s relationship with the child).
Moreover, as we have discussed above, to the extent Mother’s relationship with Child had
disintegrated, Petitioners themselves contributed to the disintegration by thwarting Mother’s
efforts to have contact with Child, precluding the conclusion they seek. See id. (stating that
a party seeking adoption of a child “must not by their own conduct have intentionally
contributed to the factors causing the disintegration of the parent-child relationship”).

                                               15
{50} In addition, although we do not doubt that Child has a bond with Petitioners, there
was not sufficient evidence that “a psychological parent-child relationship [had] developed.”
Section 32A-5-15(B)(3)(c). That Child had extended overnight visitations with Petitioners,
wanted to come home from school because he missed them, and relied on them for his home
environment does not demonstrate by clear and convincing evidence the existence of a
parent-child relationship.

{51} Finally, the record does not establish Child’s preference by clear and convincing
evidence. Petitioners’ argument to the contrary relies on the following: Grandmother’s
testimony that Child “is adamant about no longer wanting to live with [Mother]”; the
testimony of Child’s therapist that Child wanted to tell the judge that he wants to live with
Petitioners; and the GAL’s report stating that she did not ask Child where he prefers to live
“because the answer was obvious.” We agree with Mother that this is insufficient to support
a finding that Child does not prefer to live with Mother. First, Grandmother’s self-serving
testimony alone cannot establish Child’s preference, especially given her repeated efforts to
prevent Mother from having any contact with Child (i.e., by filing the TRO petition and by
limiting Mother’s phone calls and visits). Second, the GAL failed entirely to perform her
mandatory statutory duty to meet with and interview Child prior to the hearings and to
consult with Child and convey his declared position to the court at every hearing. See § 32A-
1-7(D), (E). The GAL met Child twice—once with Petitioners at a local restaurant, and once
when she “was able to visit with [Child] and . . . Petitioners at their home.” Her report states
that Child “is an incredible young person; [he] is highly intelligent and charismatic”;
however, this was her first encounter with Child and he “did seem somewhat guarded.” At
the second meeting, Child showed the GAL his bedroom and favorite things and indicated
that he loves his trampoline, had planted a sunflower garden, and said that he reads every
night. The GAL’s report provides no other information about her interaction with Child. Yet
the GAL never asked Child where he would prefer to live because, she said, “that answer
was obvious.” Even if Child’s happiness and health at Petitioners’ may be viewed as
supporting this assertion, it does not establish Child’s preference by clear and convincing
evidence. In this regard, we note also the GAL’s request for a waiver of Child’s appearance
at trial or for an appearance limited to the judge’s chambers, based on the GAL’s
representation that she has “spoken to [C]hild and [C]hild does not wish to attend the
hearing[,]” is unavailing. The GAL’s request is inconsistent with the testimony of Child’s
therapist, upon which Petitioners also rely, who testified that Child wanted to tell the judge
that he preferred to live with Petitioners. This inconsistency aside, because the district court
granted the request to waive Child’s appearance at the hearing and did not require Child to
appear in chambers, Child never conveyed his preference to the court.

{52} Because Petitioners failed to present sufficient evidence to support the required
findings under Sections 32A-5-15(B)(3)(a)-(d), we must conclude that clear and convincing
evidence does not support termination of Mother’s parental rights on the basis of
presumptive abandonment.

Abuse and Neglect

                                              16
{53} This regrettable litigation has run its course as a private termination of parental rights
under Section 32A-5-15 of the Adoption Act, the terms of which were construed by the
district court to allow any person with a legitimate interest in the matter to petition to
terminate another’s parental rights by proving allegations of abuse and neglect to the district
court without any involvement or oversight by CYFD. See §§ 32A-5-15(B)(2), 32A-5-
16(A)(3). The Adoption Act’s termination of parental rights provision is basically identical
to that in the Abuse and Neglect Act, except it contains no definition of an abused or
neglected child, and omits the requirement that CYFD or another appropriate agency make
reasonable efforts to “assist the parent in adjusting the conditions that render the parent
unable to properly care for the child.” Compare § 32A-5-15(B)(2), with 32A-4-28(B)(2).

{54} That “reasonable efforts” requirement became part of New Mexico law in response
to the enactment of the Adoption Assistance and Child Welfare Act, 42 U.S.C. §§ 670-79
(1980, as amended through 2015), which made federal funds available to child welfare
programs that make reasonable efforts to (1) prevent the removal of children from their
homes, and (2) reunify families whenever possible. See generally In re Kenny F., 1990-
NMCA-004, ¶ 15, 109 N.M. 472, 786 P.2d 699 (“The reasonable-efforts requirement is a
central feature of recent legislation governing the protection of children.”), overruled on
other grounds by In re Adoption of J.J.B., 1993-NMCA-145, ¶ 28, 117 N.M. 31, 868 P.2d
1256, aff’d in part and rev’d in part by In re Adoption of J.J.B., 1995-NMSC-026. The
Children’s Code as a whole now echoes that policy: One of its primary purposes is to
preserve the unity of the family when doing so is not in conflict with a child’s health or
safety. NMSA 1978, § 32A-1-3 (2009).

{55} Thus, procedures for terminating parental rights involving a child who is allegedly
abused or neglected normally incorporate strictly enforced safeguards. In order to prevent
the unwarranted removal of a child from her home, CYFD is the only entity that can bring
a petition for abuse and neglect, see Vescio v. Wolf, 2009-NMCA-129, ¶ 10, 147 N.M. 374,
223 P.3d 371, and may do so only after the department has conducted an investigation,
NMSA 1978, § 32A-4-4(A), (D) (2005), and the children’s court attorney has determined
that filing the petition is in the best interests of the child, NMSA 1978, § 32A-4-15 (1993).
“An individual cannot bring [an] abuse and neglect action.” Vescio, 2009-NMCA-129, ¶ 10.

{56} After “a child is adjudged neglected [or abused] under the Children’s Code, the Code
requires the department to provide services and to undertake efforts to attempt in the
reunification of the family and further requires periodic review of the situation.” In re
Guardianship of Ashleigh R., 2002-NMCA-103, ¶ 9, 132 N.M. 772, 55 P.3d 984. After the
adjudication, CYFD drafts a treatment plan that sets forth “services to be provided to the
child and the child’s parents to facilitate permanent placement of the child in the parent’s
home[.]” NMSA 1978, § 32A-4-21(B)(10) (2009). A dispositional hearing then takes place
in which the court evaluates, among other things, CYFD’s efforts at reunification. Section
32A-4-22(A)(8), (9). The dispositional hearing is followed by a permanency hearing, where
parties may present evidence and cross-examine witnesses before a court can change the plan
from reunification to placement for adoption with the corresponding termination of parental

                                              17
rights. See NMSA 1978, § 32A-4-25.1 (2009). In short, the path to permanency in an abuse
and neglect case—whether that means reunification, or alternatively, termination of parental
rights and adoption—is staked out by a statutory scheme that contemplates CYFD’s
involvement at every stage, overseen by the court.

{57} Before 1993, Petitioners’ abuse and neglect claim likely would have been dismissed
as a matter of course because our statutes had only a single provision authorizing termination
of parental rights on the basis of abuse and neglect, and it naturally required the court to find
“that the conditions and causes of the neglect and abuse are unlikely to change in the
foreseeable future despite reasonable efforts by the department or other appropriate agency
to assist the parent in adjusting the conditions which render the parent unable to properly
care for the child[.]” See NMSA 1978, § 32-1-54(B)(3) (1985), repealed by 1993 N.M.
Laws, ch. 77, § 234; In re Adoption of J.J.B., 1993-NMCA-145, ¶ 28 (concluding that
termination under the abuse and neglect provision would have been improper because “there
was no evidence of any efforts by the [d]epartment or other agency to assist [the father] in
caring for his son”). In other words, prior to 1993, CYFD (or another appropriate agency)
was plainly expected to be involved in every abuse and neglect case. That is not at all
surprising in light of the purposes of the Children’s Code and the Department’s
responsibility under federal law to make reasonable efforts at reunification whenever
possible.

{58} When the Abuse and Neglect Act was enacted in 1993, the Children’s Code was
reorganized to include separate acts governing adoptions and abuse and neglect. See 1993
N.M. Laws ch. 77; §§ 32A-4-1 to -34; 32A-5-1 to -45. The termination of parental rights
provision of Section 32-1-54(B)(3) was split in two. 1993 N.M. Laws, ch. 77, § 122; 1993
N.M. Laws, ch. 77, § 142. It became Section 32A-4-28(B)(2) in the Abuse and Neglect Act,
with the reasonable efforts requirement intact, and Section 32A-5-15(B)(2) in the Adoption
Act, but with no such reasonable efforts requirement. Id. This litigation seems to have
proceeded under the assumption that the two provisions now authorize two separate methods
of terminating parental rights for abuse and neglect: (1) termination of parental rights
involving children in CYFD custody, governed by the Abuse and Neglect Act; and (2)
proceedings where private litigants can allege and prove abuse and neglect to terminate one
another’s parental rights (without any department involvement or oversight) under the
Adoption Act.

{59} That is a questionable view of the Children’s Code. First, if taken literally, the
Adoption Act also purports to authorize CYFD itself to petition for termination of parental
rights under Section 32A-5-15(B)(2), see § 32A-5-16(A)(1), which would allow CYFD to
circumvent its requirement to make reasonable efforts at reunification in abuse and neglect
cases, offending both the funding conditions of federal law and the stated purposes of the
Children’s Code. Or CYFD could be quasi-involved, as in this case, negotiating safety plans
and such, without ever conducting an investigation into the best interests of the child, filing
an abuse and neglect petition, or ensuring that its efforts behind-the-scenes do not ultimately
result in the unwarranted breakup of a family under cover of the Adoption Act.

                                               18
{60} Second, cases where CYFD is not involved at all, and the petition for termination is
brought privately under Section 32A-5-16(A)(3), would be ripe for abuse. The entire scheme
of the Abuse and Neglect Act, discussed above, is designed to prevent precisely what
occurred in this case. An individual’s role in an abuse and neglect case is simply to report
the abuse to CYFD, under criminal penalty no less, see NMSA 1978, § 32A-4-3(A) (2005),
which then has a responsibility to initiate its investigation in accordance with the Abuse and
Neglect Act, following all of the requirements stated therein. We think it highly unlikely that
the Legislature intended to create under the Adoption Act a parallel scheme that can
effectively remove CYFD from abuse and neglect cases. The Children’s Code is to be read
as a whole, so that the legislative intent is properly realized. State v. Adam M., 2000-NMCA-
049, ¶ 10, 129 N.M. 146, 2 P.3d 883. Moreover, the literal meaning of a statute also does not
control “when such an application would be absurd, unreasonable, or otherwise
inappropriate.” State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939; see State
v. Trujillo, 2009-NMSC-012, ¶ 21, 146 N.M. 14, 206 P.3d 125 (stating that the court will
reject the plain meaning “in favor of an interpretation driven by the statute’s obvious spirit
or reason” if adherence to the literal words would lead to “injustice, absurdity or
contradiction” (internal quotation marks and citations omitted)); State v. Smith, 2004-
NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022 (“[The appellate courts have] rejected a
formalistic and mechanical statutory construction when the results would be absurd,
unreasonable, or contrary to the spirit of the statute.”); Atchison, T. & S. F. Ry. Co. v. Town
of Silver City, 1936-NMSC-036, ¶ 13, 40 N.M. 305, 59 P.2d 351 (“Canons of construction
are but aids in determining legislative intent and are not controlling if they lead to a
conclusion, which by the terms or character of the legislation manifestly was not intended.”
(citation omitted)). In our view, the only construction of Section 32A-5-15(B)(2) consistent
with the rest of the Children’s Code is that the Adoption Act’s abuse and neglect provision
refers to abuse and neglect as defined in the Abuse and Neglect Act, and that CYFD’s
involvement is required by reference, which in turn requires all the safeguards set forth in
the Abuse and Neglect Act, including the requirement that CYFD make reasonable efforts
to reunify a child with her natural parent whenever possible. Such a construction is
additionally consistent with the constitutional liberty interest at stake when a parent is faced
with termination of her right to raise and have a relationship with her child.

{61} The parties have not briefed the issue and, we need not and do not expand on it any
further. Even assuming that private litigants can terminate another’s parental rights by
proving abuse and neglect in a civil case, the evidence was insufficient to do so in this case.
We first discuss the evidence and testimony erroneously admitted at trial and relied upon by
the district court in reaching its decision. We then examine the only competent evidence of
record and conclude that it was plainly insufficient to terminate Mother’s parental rights on
the basis of neglect and abuse.

{62} “We review the admission of evidence for abuse of discretion.” Couch v. Astec
Indus., 2002-NMCA-084, ¶ 8, 132 N.M. 631, 53 P.3d 398. “The district court abuses its
discretion when its ruling is based on a misunderstanding of the law.” State v. Phillips, 2006-
NMCA-001, ¶ 10, 138 N.M. 730, 126 P.3d 546, overruled on other grounds by State v.

                                              19
Guthrie, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904. The erroneous admission of
evidence does not constitute reversible error unless it is apparent that the court considered
such evidence in deciding the case. Davis v. Davis, 1972-NMSC-045, ¶ 9, 83 N.M. 787, 498
P.2d 674.

{63} We begin with the GAL’s amended report, which the district court admitted over
Mother’s objection and said it would consider in making its decision. The admission of the
GAL’s preliminary and amended report was problematic in three critical ways. First, the
initial report was hand-delivered to Mother’s counsel on July 15, 2014, the first day of trial.
Mother’s counsel clearly did not have an adequate—indeed any—opportunity to adequately
review the report before the commencement of the hearing that day. Next, the amended GAL
report, without prior notice of the amendment, was hand-delivered to Mother’s counsel at
the beginning of the second day of trial on July 25, 2014. Although Mother’s counsel did not
argue prejudice based on the late filing and delivery of these reports, we are troubled that
this might well have impacted his ability to adequately prepare Mother’s defense. See
Lorena R., 1999-NMCA-035, ¶ 25 (stating that parents have a due process right to
participate meaningfully in termination of parental rights cases, including the right to review
and challenge the evidence presented against them). Notice issues aside, the GAL’s amended
report was improperly admitted into evidence.

{64} That report, while substantially similar in substance to the original report filed July
15, 2014, was amended by attaching eighteen pages of allegations against Mother from
CYFD’s files. Our close review of these attachments reveal that many of the allegations were
anonymous, most were found by CYFD to be unsubstantiated, and all were hearsay
statements. The district court overruled Mother’s objections that the report and attachments
contained hearsay and that the GAL was required to offer witnesses to testify about the
contents of the documents.3 The court ruled that the report and file excerpts were admissible
under Rule 1-053.3(F). As discussed above, the court erred as a matter of law in relying on
Rule 1-053.3. Moreover, Petitioners cite no case holding that inadmissible hearsay testimony
is admissible simply because it is proffered by a GAL, let alone in a proceeding implicating
a parent’s fundamental due process rights. A GAL is not legally authorized to circumvent
applicable rules of evidence by attaching inadmissible hearsay documents to a report. The
district court should not have admitted the GAL’s amended report or relied upon it in
determining whether to grant the petition.



       3
         Further complicating matters, Mother’s counsel objected to the admission of the
GAL’s amended report at the conclusion of the July 25, 2014 hearing. The district court
accepted the report into evidence but then set a hearing ten days later for Mother to respond
to the GAL’s allegations and hearsay reports. The court made no determination of
admissibility prior to accepting the report and then shifted the burden to Mother to rebut the
allegations in the report and CYFD notes. There is no legal justification for the court’s
actions in this regard.

                                              20
{65} The failure of witnesses to timely provide documents was not limited to the GAL.
CYFD worker Kurt Smith, who had no personal knowledge of the case, had never even seen
the safety plan prior to the trial and was only “vaguely familiar” with Mother, was allowed
to testify about CYFD records pertaining to Mother. Mother’s counsel had served subpoenas
for the records prior to trial, but they were not produced. Yet the district court overruled
Mother’s counsel’s objection and allowed Smith to testify about notes and other written
records containing numerous inadmissible hearsay statements. Similarly, Mother’s attorney
subpoenaed and did not receive the treatment notes of Child’s counselor, Mary Carafelli. In
fact, Carafelli did not bring those notes to court but produced only a file containing a handful
of forms. The district court overruled counsel’s objection that Carafelli’s refusal to produce
her file should bar her testimony and ordered Carafelli to produce her file within a week. It
is unclear whether she ever complied with that order, but no such documents appear in the
record. In our view, with nothing in the record to show otherwise, the district court’s rulings
denied Mother her rights to confront and cross-examine the witnesses against her. See Maria
C., 2004-NMCA-083, ¶ 34 (holding that “parents have a due process right to fair notice and
an opportunity for meaningful participation . . . , including the right to present evidence and
cross[-]examine witnesses”). Under the circumstances presented here, the district court
should not have allowed or relied on the testimony of Kurt Smith and Mary Carafelli.

{66} Excluding consideration of the foregoing inadmissible evidence, Petitioners’
evidence in support of allegations of abuse and neglect and that this alleged circumstance
was unlikely to change in the foreseeable future can be summarized as follows: Mother’s
living environment was dirty, in disarray, and with bed bugs “all over,” Child was dirty,
hungry, withdrawn and scared, behind in school, exposed to domestic violence, and
traumatized; Mother was also dirty, her hair was greasy, and she smelled of alcohol and body
odor; Mother’s apartment was near an empty lot that was full of needles, glass, liquor
bottles, debris, sleeping bags, and mattresses; Mother was destructive and violent; and
Mother drank almost every day and sometimes used drugs.

{67} We accept for the purposes of our discussion that this evidence, if established, might
provide a basis for finding abuse and neglect. The question becomes whether, to the extent
that the alleged circumstances truly exist, they demonstrate clearly and convincingly that
Mother’s condition warranted a termination of her parental rights.

{68} We first turn to Mother’s housing. The chief complaints from Petitioners were that
Mother’s homes were filthy and infested with bed bugs, and that she lived near an empty lot
filled with trash and drug paraphernalia. Although one’s housekeeping habits could form the
basis of a legitimate petition for neglect, there is no evidence in the record that Mother’s
situation was seriously detrimental to Child, and no evidence that Child had ever been
harmed in Mother’s household. That Mother’s cleanliness did not meet Petitioners’ approval
cannot be the basis for terminating Mother’s parental rights. See State ex rel. Children, Youth
& Families Dep’t v. Patricia H., 2002-NMCA-061, ¶ 21, 132 N.M. 299, 47 P.3d 859 (stating
that “[t]he fact that a child might be better off in a different environment is not a basis for
termination of parental rights in this state” (internal quotation marks and citation omitted)).

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Nor are we prepared to say that the fact that Mother’s previous apartment was near an empty
lot with trash and possible drug paraphernalia constituted neglect or abuse. After all, Mother
could hardly be expected to obtain an apartment that was not “low income” given the amount
of her monthly SSDI. Finally, we note that Petitioners provided no evidence at the time of
trial that Child would not be safe in Mother’s home.

{69} To the extent that Petitioners contend that Mother was unfit because Child was
withdrawn, scared, and traumatized, there was no competent evidence to support these
assertions. There was no evaluation or diagnosis of Child (or of Mother), and scant
testimony concerning Mother’s interaction with Child. Patty R. testified that Mother was “a
little bit more talkative” with Child than she was with her daughter. Lee Carrizales, a friend
of Mother’s, testified that Mother loves Child “in her own way,” but she did not act lovingly
or patiently with her children. Even if we agree that Mother did not interact with Child at a
level that would ensure that Child necessarily will experience maximum emotional
development, there was insufficient evidence to satisfy the strict requirements for
termination of parental rights.

{70} We briefly address the allegations of drug and alcohol use and Mother’s alleged
violent tendencies. Lee Carrizales testified that Mother drank alcohol “pretty much every
day” and that she used drugs. Carrizales’ testimony regarding Mother’s alcohol use was
based on her observations in the summer of 2009 when Mother, her boyfriend and the
children lived with Carrizales. She said that she knew Mother used street drugs “because
they would discuss it” and because she found a pipe in her shed. Although Mother testified
that she used to drink, she said that she was sober and no longer drank alcohol. Doug Simon,
who had been in a relationship with Mother more than thirteen years earlier, testified that
their relationship was “[a]t some points . . . loving and at others, highly toxic, volatile,
destructive.” Yet, Simon allowed Mother to raise their daughter until Mother sent their
daughter to live with Simon pursuant to the safety plan. In any event, the record does not
provide evidence that supports “an abiding conviction” in our mind, see In re Termination
of Parental Rights of Eventyr J., 1995-NMCA-087, ¶ 2, that Mother was drinking or using
drugs at the time of trial, or that she was emotionally unstable at the time of trial, let alone
that these conditions would continue into the foreseeable future.

{71} Perfection in parenting is not attainable, but neither is it required by law. Under the
circumstances, Mother’s decision to have Child reside in a relative’s home where he would
receive adequate care does not evidence a failure to provide proper and necessary support
for Child constituting abuse and neglect but rather concern for Child. Petitioners have failed
to meet their burden to demonstrate by clear and convincing evidence that termination of
Mother’s parental rights was warranted.

{72} We recognize that our decision may have significant emotional consequences for
Child who, by now, has lived with Petitioners for over three years. But applicable law does
not permit the termination of parental rights where, as here, the district court applied the law
incorrectly and failed in its duty to ensure that the proceedings were conducted with

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scrupulous fairness. Consequently, we reverse.

CONCLUSION

{73} For the foregoing reasons, we reverse the judgment terminating Mother’s parental
rights to Child, and void the proposed adoption.

{74}   IT IS SO ORDERED.

                                            ____________________________________
                                            LINDA M. VANZI, Judge

WE CONCUR:

___________________________________
JONATHAN B. SUTIN, Judge

___________________________________
J. MILES HANISEE, Judge




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