                                                    I attest to the accuracy and
                                                     integrity of this document
                                                       New Mexico Compilation
                                                     Commission, Santa Fe, NM
                                                    '00'05- 16:01:35 2016.12.13

Certiorari Denied, October 27, 2016, S-1-SC-36107

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-101

Filing Date: August 31, 2016

Docket No. 34,345

COULTON QUEVEDO, by and through his
Attorney-in-Fact (with power of attorney), AIMEE
BEVAN; BARBARA GUILFOYLE, individually;
SUSAN WECKESSER, as Conservator for RYAN
MORGAN; CHERYL MORGAN, individually;
JORDAN ALMANZA, individually; and MARC
FLEMING, individually,

       Plaintiffs-Appellants,

v.

NEW MEXICO CHILDREN, YOUTH & FAMILIES
DEPARTMENT, NEW MEXICO LICENSING AND
CERTIFICATION AUTHORITY, a division of the
NEW MEXICO COMMUNITY OUTREACH AND
BEHAVIORAL HEALTH PROGRAMS, and NEW
MEXICO DEPARTMENT OF WORKFORCE
SOLUTIONS,

       Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Francis J. Mathew, District Judge

McGinn, Carpenter, Montoya & Love, PA
Randi McGinn
A. Elicia Montoya
Michael E. Sievers
Albuquerque, NM

for Appellants

Law Office of Michael Dickman

                                        1
Michael Dickman
Santa Fe, NM

for Appellees

                                        OPINION

BUSTAMANTE, Judge.

{1}    Plaintiffs appeal the grant of summary judgment in favor of the Children, Youth, and
Families Department (CYFD) on the ground that CYFD was immune from suit under the
New Mexico Tort Claims Act. We conclude that questions of material fact preclude
summary judgment and reverse.

BACKGROUND

{2}    Tierra Blanca Ranch High Country Youth Program (TBR) is a private, for-profit
business in New Mexico that provides troubled adolescent residents with schooling,
counseling, and therapy. CYFD is a cabinet-level department of the state government.
NMSA 1978, §§ 9-2A-1 to -24 (1992, as amended through 2011).

{3}     Plaintiffs Quevedo, Morgan, Almanza, and Fleming, together with the other plaintiffs
(collectively, Plaintiffs), filed a multi-count complaint in 2013 against CYFD1 and TBR
alleging that while they were participants in TBR’s program, they were physically and
emotionally abused by TBR staff and other participants. Some also allege that they were
deprived of adequate food, denied access to their families, shackled, and forced to perform
extreme exercise. Plaintiffs further allege that CYFD knew of abusive practices at TBR, that
TBR was not licensed pursuant to statute and CYFD regulations governing licensing of
“multi-service homes” and “community homes,” and that CYFD negligently failed to license
and regulate TBR. They point to the fact that, in 2005, CYFD initiated the licensing process


       1
         Plaintiffs’ complaint also named the Department of Workforce Solutions (DWS),
a cabinet-level department of the state. NMSA 1978, § 9-26-4 (2007). The district court
granted summary judgment “in favor of the [s]tate [d]efendants,” including both CYFD (and
its Licensing and Certification Authority) and DWS. While on appeal Plaintiffs state that
they appeal the grant of summary judgment in its entirety, they posit no arguments related
to DWS’s duties to them nor do they cite to any statutes or regulations defining DWS’s
obligations vis á vis TBR. We therefore consider Plaintiffs’ appeal of the grant of summary
judgment to DWS abandoned. See State ex rel. Office of State Eng’r v. Lewis, 2007-NMCA-
008, ¶ 74, 141 N.M. 1, 150 P.3d 375 (“A party that fails to present argument or authority to
support a contention runs a very substantial risk that this Court will not address the
contention, either because of the failure of argument or authority, or because the party is
deemed to have abandoned the contention.”).

                                             2
with TBR. CYFD subsequently stated in a 2006 letter to TBR that it “ha[d] determined that
TBR is a multi[-]service home under [S]ection 7.8.3.10(B) [NMAC] of the Shelter Care
Regulations” and that “TBR must have a license to continue in operation.” However, CYFD
eventually ceased its efforts to license TBR. CYFD maintains that “the applicable New
Mexico statutes [do not] allow[] or require[] CYFD to license TBR[].”

{4}     Instead of answering the complaint, CYFD filed a motion for summary judgment on
the ground that the so-called “building waiver” in NMSA 1978, Section 41-4-6(A) (2007)
of the New Mexico Tort Claims Act (the TCA) does not waive immunity for Plaintiffs’
claims. See NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2015); Rule 1-056
NMRA. After a hearing on the motion for summary judgment, the district court granted the
motion. Plaintiffs appeal. Additional facts are included as pertinent to our discussion of
Plaintiffs’ arguments.

DISCUSSION

{5}      “Summary judgment is proper if there are no genuine issues of material fact and the
movant is entitled to judgment as a matter of law.” Callaway v. N.M. Dep’t of Corr., 1994-
NMCA-049, ¶ 2, 117 N.M. 637, 875 P.2d 393 (internal quotation marks and citation
omitted). “However, summary judgment should not be used as a substitute for trial on the
merits so long as one issue of material fact is present in the case.” Id. “In addition, when the
facts are insufficiently developed or further factual resolution is essential for determination
of the central legal issues involved, summary judgment is not appropriate.” Id. “An issue of
fact is ‘material’ if the existence (or non-existence) of the fact is of consequence under the
substantive rules of law governing the parties’ dispute.” Martin v. Franklin Capital Corp.,
2008-NMCA-152, ¶ 6, 145 N.M. 179, 195 P.3d 24. Our review of summary judgment is de
novo. Farmington Police Officers Ass’n v. City of Farmington, 2006-NMCA-077, ¶ 13, 139
N.M. 750, 137 P.3d 1204.

{6}     Here, the relevant substantive law is the TCA, which “grant[s] governmental entities
and employees a general immunity from tort liability, but . . . waive[s] that immunity in
certain defined circumstances.” Cobos v. Doña Ana Cty. Hous. Auth., 1998-NMSC-049, ¶
6, 126 N.M. 418, 970 P.2d 1143; see § 41-4-4(A). “In each of these waivers the Legislature
identified a specific existing duty on the part of public employees, . . . which, if breached,
could result in liability ‘based upon the traditional tort concepts of duty and the reasonably
prudent person’s standard of care in the performance of that duty.’ ” Cobos, 1998-NMSC-
049, ¶ 6 (quoting Section 41-4-2(B)).

{7}     “The ‘building waiver’ waives governmental immunity for damages caused by the
negligence of public employees while acting within the scope of their duties in the operation
or maintenance of any building, public park, machinery, equipment[,] or furnishings.” Id.
¶ 7 (internal quotation marks and citation omitted); see § 41-4-6. In Cobos, the Court held
that the building waiver is not limited to public buildings, stating that “[t]he Legislature
defined ‘scope of duties’ to mean ‘any duties that a public employee is requested, required,

                                               3
or authorized to perform . . . regardless of the time and place of performance.’ ” Cobos,
1998-NMSC-049, ¶ 8 (omission in original) (quoting Section 41-4-3(G)). “Accordingly, the
‘building waiver’ in Section 41-4-6 on its face excepts immunity for the negligent operation
or maintenance of any building by a public employee acting within the scope of duty.”
Cobos, 1998-NMSC-049, ¶ 8.

{8}     Moreover, “the waiver is not limited to injuries resulting from a physical defect on
the premises.” Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, ¶ 10, 310 P.3d 611.
“Instead, we interpret Section 41-4-6(A) broadly to waive immunity where due to the alleged
negligence of public employees an injury arises from an unsafe, dangerous, or defective
condition on property owned and operated by the government.” Encinias, 2013-NMSC-045,
¶ 10 (internal quotation marks and citation omitted). “The waiver applies to more than the
operation or maintenance of the physical aspects of the building, and includes safety policies
necessary to protect the people who use the building.” Upton v. Clovis Mun. Sch. Dist.,
2006-NMSC-040, ¶ 9, 140 N.M. 205, 141 P.3d 1259.

A.     The “Building Waiver” Permits Suit When There Is a Duty of Care Created by
       a Relationship Between the Parties

{9}     Case law indicates that the relationship between a governmental entity and a person
can influence whether the building waiver applies in a given circumstance. Two cases are
particularly instructive. In Cobos, the plaintiff sued the Doña Ana County Housing Authority
(Housing Authority) for the wrongful death of her daughter and granddaughters as a result
of a fire. 1998-NMSC-049, ¶ 4. The plaintiff and her family “were participants in a
federally[]subsidized low-income housing program administered by the . . . Housing
Authority. Their home was privately owned and rented to them through the [Housing]
Authority’s Section 8 Existing Housing Program.” Id. ¶ 2. The Housing Authority argued
that the building waiver did not apply to permit suit against it because it did not have a
sufficient legal interest in the home, which was owned by a private individual. Id. ¶ 4. The
Court of Appeals affirmed the dismissal of the complaint on immunity grounds and because
the Housing Authority had not received the required notice under the TCA. Id. ¶¶ 4-5.

{10} The Supreme Court granted certiorari to address only “whether [the p]laintiff [had]
stated a claim under the building waiver based on the duties of the public employees who
appear as individual defendants in [that] case.” Id. ¶ 5. It held first that “the effect of the
[building] waiver should not be determined by the legal status of or the title to the real
property, but should instead be determined by an examination of the public employees’
duties.” Id. ¶ 7. It next observed that “statutes, regulations, and contracts [are] sources of
duties of ordinary care imposed on public employees that may bring them within a [TCA]
waiver[,]” id. ¶ 12, and made a detailed examination of statutes and regulations governing
the Housing Authority. Id. ¶¶ 13-14. The Municipal Housing Law authorized the Housing
Authority to “construct, maintain, operate[,] and manage any housing project[,]” which was
defined as “any work or undertaking of the county to provide decent, safe, and sanitary
dwellings . . . for persons of low income.” Id. ¶ 13 (omission in original) (emphasis, internal

                                              4
quotation marks, and citations omitted). It also required compliance with federal regulations
connected with funding through the federal Section 8 Existing Housing Program. Id. ¶ 14.
Through the program, “the [Housing] Authority screens for and certifies a qualified needy
participant, and represents that it will subsidize the participant’s rental of approved homes
to an extent that is prorated by income, need, and family size. The [Housing] Authority then
contracts with the owner of the property to provide rental housing for the participant.” Id.
This arrangement “create[d] a relationship among the [Housing] Authority, the private
landowners, and the family in need.” Id. In addition, federal regulations required the Housing
Authority to inspect the home before leasing it and annually thereafter and gave the Housing
Authority the right to terminate the contract with the owner if the owner failed to maintain
the home to certain standards. Id. The Court concluded that “[u]nder the state law and the
federal regulations, the [Housing] Authority exercised at least some control over the quality
of the private housing by inspecting and selecting the proper dwelling and by providing in
its contract with the owners a large degree of control over the building.” Id. It concluded that
“the relationships of the actors . . . imposed at least limited duties of operation or
maintenance on [Housing] Authority employees” such that the plaintiff’s claim could
proceed under the building waiver provision of the TCA. Id. ¶ 18.

{11} In reaching this conclusion, the Court rejected the Housing Authority’s argument that
its relationship with the home and owner was “one of mere regulation and inspection of
private property[,]” id. ¶ 15, or the result of a “general regulatory relationship between the
government and its citizens.” Id. ¶ 16. The Court stated that

       [t]he Legislature created the Authority for the purposes of operating and
       maintaining housing projects in a decent, safe[,] and sanitary condition. The
       Housing Authority . . . chose to do so by using private property in the manner
       prescribed by the federal regulations. Thus, the privately[]owned home was
       substituted for publicly[]owned low-income housing . . . , [and the Housing
       Authority’s] duties under the Municipal Housing Law and Existing Housing
       Program went far beyond a mere duty to inspect and regulate private conduct.

Id. ¶ 15; see id. ¶ 16 (stating that the Housing Authority’s “voluntary undertaking to
effectuate the policies in [the Municipal Housing Law] by providing [the p]laintiff’s family
with safe housing they could not otherwise obtain” and stating that [t]his undertaking gives
rise to a more specific relationship among the parties than does general regulation for the
public good”).

{12} In Young v. Van Duyne, this Court considered whether the building waiver could
apply to permit suit against CYFD based on CYFD’s failure to inform the plaintiff’s family
that the child they fostered and later adopted had violent tendencies. 2004-NMCA-074, ¶ 3,
135 N.M. 695, 92 P.3d 1269. The child later killed the plaintiff’s wife with a baseball bat.
Id. This Court held that the plaintiff’s claims survived a Rule 1-012(B)(6) NMRA motion
to dismiss and that the plaintiff “must be permitted to proceed on the merits of his claim that
CYFD operated the [plaintiff’s] foster home within the meaning of the [building] waiver.”

                                               5
Young, 2004-NMCA-074, ¶¶ 17, 23. Its reasoning was based in part on the special
concurrence in M.D.R. v. State ex rel. Human Services Department, in which Judge Minzner
wrote that “[t]he placement of a child in foster care within a private home involves the state
in the lives of its citizens in a unique way” because the statutes and regulations governing
foster care required the state to maintain a degree of control over the child. 1992-NMCA-
082, ¶ 17, 114 N.M. 187, 836 P.2d 106 (Minzner, J., specially concurring); see Young, 2004-
NMCA-074, ¶ 20. Although the claims presented in M.D.R. were based on allegations that
the state negligently placed a child in the plaintiffs’ foster home, Judge Minzner observed
that claims related to the day-to-day functioning of the foster home might have fallen within
the “operation” prong of the building waiver. M.D.R., 1992-NMCA-082, ¶ 21. Based on the
special concurrence in M.D.R. and Cobos, the Young Court remanded to permit the plaintiff
to “prove a regulatory scheme or conduct from which a fact[-]finder can conclude pre-
adoption operation of the [plaintiff’s] home as contemplated under [the building waiver].”
Young, 2004-NMCA-074, ¶¶ 20-21, 35.

{13} We recognize that, because of its procedural posture, Young is not dispositive of
whether CYFD was “operating” foster homes so as to permit suit under the building waiver.
Similarly, Cobos is not dispositive. Nevertheless, Young and Cobos together suggest that the
building waiver may apply when an agency undertakes to provide housing for clients when
permitted or required to do so under specific statutory authority. Cobos, 1998-NMSC-049,
¶ 16 (stating that the Housing Authority’s “voluntary undertaking to effectuate the policies
in [the Municipal Housing Law] . . . [gave] rise to a more specific relationship among the
parties than does general regulation for the public good”).

B.     CYFD Owes a Duty of Ordinary Care to Children Under Its Jurisdiction

{14} As indicated in Cobos, CYFD’s duty is imposed in a variety of statutes and
regulations. See id. ¶ 12 (“Our appellate courts regularly look to statutes, regulations, and
contracts as sources of duties of ordinary care imposed on public employees that may bring
them within a [TCA] waiver.”). For instance, the Children’s Code establishes standards for
the housing of children by CYFD. The Children’s Shelter Care Act, the purpose of which
is to “divert children out of the juvenile justice system,” NMSA 1978, § 32A-9-2(B)(2)
(1993), provides for the placement by CYFD of children alleged to be in need of supervision,
children determined to be in need of supervision, or alleged delinquent children “in a
community-based shelter-care facility.” NMSA 1978, § 32A-9-6 (1993); see NMSA 1978,
§ 32A-9-3(B)-(D) (1993). Other parts of the Children’s Code indicate that “community-
based shelter-care facilities” include the home of a relative, a licensed foster home or group
home, or “a facility operated by a licensed child welfare services agency[.]” NMSA 1978,
§ 32A-4-8 (1993); see NMSA 1978, § 32A-3B-6 (1993). Similarly, children alleged to be
neglected or abused, or from a family in need of services, may be placed with a family
member, or in a licensed foster home, facility operated by a licensed child welfare services
agency, or a facility provided for in the Children’s Shelter Care Act. Sections 32A-4-8, -3B-
6. Placement of children alleged to be delinquent or youthful offenders is limited to a similar
list of facilities. NMSA 1978, § 32A-2-12 (2009).

                                              6
{15} In addition to these statutes governing where CYFD may place children, CYFD has
promulgated extensive licensing requirements and regulations governing residential shelter-
care facilities for children, including crisis shelters, multi-service homes, community homes,
and “[n]ew or [i]nnovative programs” that provide children’s services, as well as foster
homes. 7.8.3.2 NMAC (09/15/1975, as amended through 08/15/2011) (licensing
requirements for shelter-care homes); 8.26.4 NMAC (licensing requirements for foster and
adoptive homes). The shelter-care regulations specify the records that must be kept for each
child, licensing requirements for each facility, reporting requirements, and space and
building requirements, as well as setting standards for medical care, nutrition, housekeeping,
waste disposal, and seclusion rooms, among other things. 7.8.3.2 NMAC (12/23/1987, as
amended through 05/15/2001). More relevant to Plaintiffs’ claims, the regulations require
facilities in which CYFD is permitted or required to place or refer children pursuant to
statute or regulation to “support, protect, and enhance the rights of children” including “the
right to receive visitors in private at reasonable times” and “the right to written and
telephone access.” 7.8.3.28 NMAC(B)(7), (8). The regulations also prohibit use of “unusual
or unnecessary punishments including, but not limited to,” physical exercise as a form of
punishment, denial of food, water, or rest, denial of visiting or communication privileges,
use of restraints, verbal abuse, and spanking, hitting, or “aggressive physical contact with
a child.” 7.8.3.80(F) NMAC. The regulations also include requirements for staffing levels
and records, staff qualifications, staff training and evaluation, and staff health certificates and
criminal background checks. 7.8.3.30 to .34 NMAC. Similarly, the statutes and regulations
governing foster care, discussed in M.D.R., provide for substantial oversight of foster homes
and foster parents. 1992-NMCA-082, ¶ 17 (Minzner, J., specially concurring); see 8.26.4
NMAC. Both the shelter-care regulations and foster home regulations clearly address a wide
variety of aspects of the day-to-day operation of the subject facilities.

{16} Even “community homes,” which are excluded from particular regulations governing
residential shelter-care facilities, see 7.8.3.2 NMAC, and “group homes” are required to
“observe standards comparable to pertinent recognized state or national group home
standards for the care of children[.]” NMSA 1978, § 9-8-13(B) (2007) (defining “group
home” as “any home the principal function of which is to care for a group of children on a
[24]-hour-a-day residential basis,” which (1) “receives no funds as such directly from or
through the department” and (2) “is a member of any state or national association that
requires it to observe standards comparable to pertinent recognized state or national group
home standards for the care of children” (emphasis added)); 8.26.6.7(D) NMAC
(regulations governing community homes, defining a community home as “a facility which
operates 24 hours a day and provides full time care, supervision[,] and support to no more
than 16 children in a single residential building, and which meets the definition of ‘group
home’ as outlined in . . . [Section] 9-8-13.”); 7.8.3.2 NMAC (stating that community homes
are subject to only some of the regulations in 7.8.3 NMAC).

{17} What we glean from these statutes and regulations is that CYFD has an obligation
to house children in its care in homes or facilities that meet certain minimum health and

                                                7
safety standards. This obligation may create a relationship between CYFD, the homes or
facilities in which children are placed, and the children. See Cobos, 1998-NMSC-049, ¶ 14.
We conclude that the waiver of immunity in Section 41-4-6(A) permits suit against CYFD
when such a relationship exists.

C.      Questions of Material Fact Preclude Summary Judgment

{18} We turn now to the immediate question presented by Plaintiffs’ appeal. The question
centers factually on whether and under what circumstances, children were sent or referred
to TBR by CYFD, a question that raises a genuine issue of material fact, requiring reversal
and remand. Once answered, the issue becomes a legal one, what duty of care, if any, CYFD
owed to any particular child placed or referred to TBR by CYFD. Based on the facts and
arguments on appeal, we construe Plaintiffs’ assertions to go beyond a failure by CYFD to
license and regulate TBR. Plaintiffs argue that CYFD “failed to operate and maintain TBR
safely despite having a duty to do so.” Plaintiffs’ assertions can be read as being similar to
those made at the motion to dismiss stage in Cobos and in Justice Minzner’s scenario in
M.D.R., to include an assertion that CYFD failed to exercise ordinary care “to provide for
the care, protection, and wholesome mental and physical development of children” under
statutory or regulatory circumstances requiring CYFD to do so and to do so in a manner that
could have prevented the alleged abuse of one or more children sent or referred to TBR by
CYFD. To be explored in further discovery and proof are Plaintiffs’ allegations and any
evidence in the record in regard to whether, and if so to what extent, CYFD was involved
in sending or referring children to TBR, and what duty existed, if any, to follow up on their
well-being. Included within this analysis is the extent, if any, indicated by evidence in the
record, to which CYFD’s juvenile justice division may have received funds earmarked for
TBR in 1999, and also the extent, if any, to which inferences can be drawn that TBR and
CYFD had financial dealings then or at any other time. We note that, at the hearing on the
motion, CYFD appeared to admit that CYFD had placed children at TBR. Since CYFD did
not respond to Plaintiffs’ allegations in writing and the admission was only in a passing
comment, we decline to give this statement more import than is deserved. In spite of
CYFD’s statement, we conclude that the questions of whether and under what circumstances
children were placed at TBR by CYFD present disputed material factual issues.2

{19}   In its pleadings related to the motion for summary judgment, CYFD did not respond


       2
         In support, Plaintiffs attached a copy of the general appropriations bill containing
the earmark to TBR and a complaint filed by Scott and Colette Chandler, who own and
operate TBR, in which the Chandlers asserted that “[o]ver the existence of the TBR Youth
Program, TBR Youth Program has received youths from New Mexico [CYFD], referrals
from juvenile justice and parole, the courts, as well as private placements.” The Chandlers
further stated that “[f]or enrollment in the TBR Youth program, Scott Chandler is contacted
either by a program facilitator, a social worker, a . . . Juvenile Justice Police Officer [sic],
therapist and/or a parent.”

                                               8
to Plaintiffs’ assertions that CYFD sent children in its care to TBR or that CYFD has or had
a financial arrangement with TBR. The district court did not set out the undisputed facts on
which it relied in granting summary judgment.

{20} In reviewing a motion for summary judgment, the district court “must resolve all
reasonable inferences in favor of the nonmovant and must view the pleadings, affidavits,
depositions, answers to interrogatories and admissions in a light most favorable to a trial on
the merits.” Garcia-Montoya v. N.M. Treasurer’s Office, 2001-NMSC-003, ¶ 7, 130 N.M.
25, 16 P.3d 1084. “Summary judgment is an extreme remedy that should be imposed with
caution[,]” and is improper if the nonmovant demonstrates “a reasonable doubt as to the
existence of a genuine factual issue.” Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶¶ 12,
22, 135 N.M. 539, 91 P.3d 58 (internal quotation marks and citation omitted). Here,
Plaintiffs’ assertions raise a reasonable doubt as to the existence of material factual issues,
to wit, whether CYFD placed children in its care at TBR.

CONCLUSION

{21} We conclude that questions of material fact preclude summary judgment on the issue
of whether the TCA’s building waiver applies to permit Plaintiffs’ suit. We hold that
summary judgment should have been denied. See Espinoza v. Town of Taos, 1995-NMSC-
070, ¶ 5, 120 N.M. 680, 905 P.2d 718 (“Summary judgment is inappropriate when resolution
of a factual dispute is required to determine a legal question before the [c]ourt.”). We
therefore reverse and remand for further proceedings.

{22}   IT IS SO ORDERED.

                                               ____________________________________
                                               MICHAEL D. BUSTAMANTE, Judge

I CONCUR:

____________________________________
MICHAEL E. VIGIL, Chief Judge


____________________________________
JONATHAN B. SUTIN, Judge




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