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                                                         New Mexico Compilation
                                                       Commission, Santa Fe, NM
                                                      '00'04- 14:58:50 2017.10.25

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-067

Filing Date: June 15, 2017

Docket No. A-1-CA-35616

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

       Petitioner-Appellee,

v.

RAYMOND D.,

       Respondent-Appellant,

and

ALMA F.,

       Respondent,

and

IN THE MATTER OF ADRIAN F.,

       a Child.

APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
Jennifer E. DeLaney, District Judge

Children, Youth & Families Department
Charles E. Neelley, Chief Children’s Court Attorney
Rebecca J. Liggett, Children’s Court Attorney
Santa Fe, NM

for Appellee

Law Office of Jane B. Yohalem
Jane Bloom Yohalem

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Santa Fe, NM

for Appellant

Law Office of David H. Gorman PC
David H. Gorman
Silver City, NM

Guardian Ad Litem

                                         OPINION

VIGIL, Judge.

{1}      The joint motion for rehearing filed by the parties is granted. The formal opinion
filed in this case on May 8, 2017, is hereby withdrawn, and this opinion is substituted in its
place.

{2}     Father appeals from a judgment terminating his parental rights to Child for neglect
pursuant to NMSA 1978, Section 32A-4-28(B)(2) (2005). The sole issue presented is
whether the district court erred in concluding that termination is in Child’s best interests on
the basis of substantial, admissible evidence. We affirm.

BACKGROUND

{3}    Child was placed in the custody of the New Mexico Children, Youth and Families
Department (CYFD) on August 14, 2013, when Child was eight years old, and the causes
and conditions that brought Child into CYFD custody were for physical abuse, medical
neglect, emotional abuse, and substance abuse by Mother. Mother’s parental rights were also
terminated, but she has not appealed. We discuss facts and circumstances related to Mother’s
termination only insofar as they relate to Father’s appeal.

{4}    At all times during the case, Child needed intensive mental health treatment,
medication, and services. Since being taken into CYFD custody, Child went back and forth
from the Peak Psychiatric Residential Treatment Facility (Peak), and Bonem Home Facility
(Bonem), a mental health residential treatment center. The only exceptions were for one
week when Child was placed in a foster home and when Child briefly lived with Father in
October 2013.

{5}    Father began serving a federal prison term in 2010, and in July 2013, shortly before
Child was taken into CYFD custody, Father was released on probation. In October 2013,
Child was released from Peak and temporarily placed with Father. During that time, Father
had great difficulty attending to Child’s needs. While living with Father and his paternal
grandparents, Child punched his grandparents, tried to punch and bite Father, and needed to

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be physically restrained by Father to prevent Child from Child banging his head on the floor.
Father testified that he felt Child needed a higher level of care, and that he also needed
training on how to meet Child’s needs. On November 2, 2013, Father was arrested on new
state charges, and CYFD took Child back into custody. Father remained incarcerated and had
no further contact with Child.

{6}    On November 13, 2013, Mother pled no contest to neglect of Child, and Mother was
ordered to participate in a treatment plan. Child remained in CYFD custody for 2014 while
CYFD worked with Mother; however, Mother failed to comply with the treatment plan.

{7}     Father was facing a ten-year potential penitentiary sentence on the state charges
stemming from his November 2013 arrest, and on this basis, Father stipulated to a finding
that reunification with Child was futile on February 19, 2015. The district court accepted the
stipulation, made a finding that reunification was likely futile, and ordered that CYFD was
relieved of providing treatment services to Father. See NMSA 1978, § 32A-4-22(C)(1)
(2016) (providing that the district court may determine that reasonable efforts at
reunification are not required to be made when it finds that the efforts would be futile). On
the same day, Father also pled no contest to neglect of child due to his incarceration. See
NMSA 1978, § 32A-4-2(E)(4) (2009, recodified by 2017 N.M. Laws, ch. 64, § 2, as § 32A-
4-2(F)(4)) (defining a neglected child in part as a child whose parent “is unable to discharge
that person’s responsibilities to and for the child because of incarceration[.]”). On April 13,
2015, Father unexpectedly received a sentence of two-and-one-half years instead of ten years
on the pending state charges, with a scheduled parole date of June 2016.

{8}     CYFD filed its motion to terminate parental rights as to both Mother and Father on
June 5, 2015, on the basis of neglect. At the time of the termination of parental rights (TPR)
hearing on January 22, 2016, Child was residing at Bonem, and had been there for
approximately five months.

{9}     Shasta Rael, Child’s therapist at Bonem, was responsible for Child’s individual
therapy and weekly family therapy sessions, which Mother participated in by phone. Under
cross-examination by Child’s guardian ad litem (GAL), Rael was asked her opinion about
Child’s demeanor after the family therapy sessions, and Rael answered that Child was
usually calm, but confused about whether he would be reunited with his parents or be
adopted. Having testified on direct examination, that Mother’s participation in the weekly
family therapy sessions had been inconsistent, Rael added in the GAL’s cross-examination
that when there is inconsistency in his family therapy sessions, Child becomes emotionally
volatile, he demonstrates self-harm, and he has conflicts with his peers. The GAL then asked
Rael whether it would be in Child’s best interests to continue family therapy with his
Mother, and Father objected on the basis that this was not a proper question for lay opinion
testimony, and that no foundation was laid to qualify Rael as an expert to answer the
question. The GAL responded that he was only asking for her opinion as a layperson, which
went to the weight of her testimony and not its admissibility. The district court overruled
Father’s objection. Rael then testified that Child is confused about his future and what the

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future holds for him, and that family therapy was dependent on the outcome of the district
court’s decision. Hereinafter, we refer to this statement as the “testimony objected to.” In
Father’s cross-examination that followed, Rael testified that it was her therapeutic
recommendation that it was in Child’s best interests that he temporarily not have contact
with Father.

{10} At the end of the TPR hearing, the district court noted that “June in [Child’s] life is
still really far away” and said it could not make the case go on any longer. The district court
also specifically ruled “that the confusion in Child’s life is leading him to self-harm and
Child’s continued limbo caused the Child confusion.” Father asked if this finding regarding
Child’s self-harm was based on Rael’s testimony, and the district court answered, “Yes, that
his being in limbo is causing him confusion and is causing him self-harm.” Consistent with
its answer, the district court’s written findings include a finding that “The [C]hild’s
confusion about what is happening is having continued negative consequences on him and
the longer he is in legal limbo the longer and more pronounced these negative consequences
are.”

{11} The judgment terminating parental rights on the basis of neglect was filed on April
26, 2016. In the judgment terminating parental rights, the district court found: “Giving
primary consideration to the physical, mental, and emotional welfare and needs of [C]hild,
including the likelihood of adoption if rights are terminated, CYFD has demonstrated by
clear and convincing evidence that [C]hild’s best interests require that the parental rights of
[Father] should be terminated”). Father appeals.

DISCUSSION

{12} Father’s sole contention on appeal is that the district court’s finding on the central
issue in this case—that child’s best interests required prompt termination of Father’s parental
rights—is based on the testimony objected to, which was erroneously admitted. For the
following reasons, we disagree.

Standard of Review

{13} Section 32A-4-28(A) directs, “In proceedings to terminate parental rights, the court
shall give primary consideration to the physical, mental and emotional welfare and needs of
the child, including the likelihood of the child being adopted if parental rights are
terminated.” We have no New Mexico authority directly on point specifying our standard
of review. However, we are persuaded by the logic and reasoning of In re Adoption of
Randolph, 227 N.W.2d 634, 637 (Wis. 1975), an adoption case. Randolph states:

       The finding [of best interests]is a mixed question of fact and law. There are
       certain determinations of historical facts which must be sustained unless they
       are clearly against the great weight and clear preponderance of the evidence.
       The determination of where the best interests of the children lie is thus a

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       question of fact in the sense that precise determinations must be made about
       specific factors such as age, finances of the parties, discipline questions, and
       psychological factors. The application of the correct standards for
       determining the best interests of the child and the ultimate conclusion of
       where the best interests of the children lie is a matter for legal determination
       by the trial court, reviewable as such on appeal.

Id.

{14} In our review of the district court’s finding of Child’s best interests as a mixed
question of law and fact, we engage in a two-step analysis. First, we determine whether
substantial evidence supports the district court’s findings of fact. See State ex rel. Children,
Youth & Families Dep’t v. Patricia H., 2002-NMCA-061, ¶ 22, 132 N.M. 299, 47 P.3d 859
(stating that in our appellate review, we determine whether substantial evidence supports the
district court’s decision). “Substantial evidence is relevant evidence that a reasonable mind
would accept as adequate to support a conclusion.” Id. (internal quotation marks and citation
omitted). In determining whether substantial evidence supports the district court’s finding,
we view the evidence in the light most favorable to the judgment. Id. Second, we determine
whether that evidence supports a finding of best interests, a question of law which we review
de novo. See Stanley J. v. Cliff L., 2014-NMCA-029, ¶ 8, 319 P.3d 662 (stating that in
applying the facts to determine whether “extraordinary circumstances” exist under the
Kinship Guardian Act, we are presented with a question of law, and our standard of review
is de novo).

Analysis

{15} Under Section 32A-4-28(B)(2), parental rights “shall” be terminated if “the child has
been a neglected or abused child as defined in the Abuse and Neglect Act and the court finds
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 that render the parent unable to properly care
for the child.” The elements to be proven here are that: (1) Child was neglected; (2) the
conditions and causes of Child’s neglect were unlikely to change in the foreseeable future;
and (3) CYFD made reasonable efforts to assist Father in adjusting the conditions that
rendered Father unable to properly care for Child. See State, ex rel. Children, Youth &
Families Dep’t v. Nathan H., 2016-NMCA-043, ¶ 32, 370 P.3d 782, cert. denied, 2016-
NMCERT-___ (May 3, 2016). Father’s no contest plea satisfied the first element. See State
ex rel. Children, Youth and Families Dep’t v. Melvin C., 2015-NMCA-067, ¶ 13, 350 P.3d
1251 (stating that the court may make a determination of neglect on the basis of a valid
admission). In addition, when Father stipulated to a finding of futility, CYFD was not
required to make reasonable efforts to assist Father in adjusting the conditions that rendered
Father unable to care for Child. See State ex rel. Children, Youth & Families Dep’t v.
Vanessa C., 2000-NMCA-025, ¶ 14, 128 N.M. 701, 997 P.2d 833 (recognizing that a finding
of futility results in the removal of a person's expectation to the department’s reasonable

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assistance).

{16} The appeal before us centers on whether CYFD proved that prompt termination of
Father’s parental rights was in Child’s best interests. If this question is answered
affirmatively in the circumstances of this case, the second element required to terminate
Father’s parental rights was likewise satisfied. As we have already observed, Section 32A-4-
28(A) directs, “In proceedings to terminate parental rights, the court shall give primary
consideration to the physical, mental and emotional welfare and needs of the child, including
the likelihood of the child being adopted if parental rights are terminated.” In this case, proof
of Child’s best interests hinges on resolution of factual questions, namely: (1) whether Father
could remedy the conditions of neglect quickly enough in the future to meet Child’s needs;
and (2) the related question of whether Father should have been allowed more time to
attempt to remedy the causes and conditions of neglect. We therefore turn to Father’s
arguments.

{17} Father vigorously contends that the testimony objected to was only admissible
through a properly qualified expert, and that the district court erred in admitting the
testimony as lay opinion testimony. CYFD concedes that the testimony objected to was
inadmissible as lay opinion testimony. We therefore assume, without deciding, that the
testimony objected to was not admissible. We further assume that the district court’s finding
that Child’s “confusion about what is happening is having continued negative consequences
on him and the longer he is in legal limbo the longer and more pronounced these negative
consequences are” is based only on the testimony objected to. We therefore proceed to
determine whether the district court’s finding of Child’s best interests is otherwise supported
by admissible evidence.1

{18} In pertinent part, the district made findings that family therapy with Mother and
Child was scheduled by the therapist to occur on a weekly basis, but Mother’s participation
was sparse and inconsistent, and outside of therapy, Mother only had some contact with
Child by telephone. This inconsistent contact led Child “to be confused and he lacks
understanding what is in his future, being reunification with his parents or adoption” and the
consequences of this inconsistent contact were that Child “became more emotionally
volatile, demonstrated self-harm and low tolerance regarding conflict with his peers.” When
Father was released from prison and Child was placed with him in October 2013, for two or
three weeks, “[C]hild experienced aggressive and violent behaviors.” Father was then


        1
         CYFD argues that Father only preserved an objection to the testimony objected to,
and that we can consider the balance of Rael’s testimony in determining whether the district
court finding of Child’s best interests is supported by substantial evidence. We agree. “If a
proper objection is not made, the evidence may be considered in the same manner as any
other relevant evidence and has sufficient probative value to support a finding. . . . Failure
to object to the admission of evidence operates as a waiver.” N.M. Att’y Gen. v. N.M. Pub.
Serv. Comm'n, 1984-NMSC-081, ¶ 10, 101 N.M. 549, 685 P.2d 957 (citations omitted).

                                               6
arrested on November 2, 2013 on new criminal charges, and has had no contact with Child.
Father was scheduled to be paroled in June 2016, five months after the TPR hearing.
However, since Father had not participated in family therapy, it was not currently in Child’s
best interests to have contact with Father, and Father had not been able to participate in any
classes due to his maximum security classification, and being on lockdown at the
penitentiary. The time period from the date of the TPR hearing to Father’s anticipated parole
date six months later, was “really far away” for Child, in Child’s experience. Finally, and
importantly, the district court found that Father had “shown an inability to follow the laws
of the State of New Mexico and it is uncertain that inability would change.”

{19} The foregoing findings, which do not rely on the testimony objected to, support the
district court’s finding that it was in Child’s best interests to terminate Father’s parental
rights. This case spans over three years of Mother’s inconsistent participation in her
treatment plan and Child’s therapy, Father’s incarceration and lack of communication with
Child, and Child’s continued residency in psychiatric and residential facilities. It was not in
Child’s best interests to make Child wait five more months for a placement that might be
temporary given Father’s recidivism and inability to attend to Child’s special needs. Child
would have to wait five months for Father to be released from the penitentiary, and then wait
for an additional indeterminate period of time for Father to receive training that might or
might not succeed, in the face of possible reoffending by Father. Child waited for over three
years for his parents to remedy the causes of his neglect, and “the court is not required to
place the [Child] indefinitely in a legal holding pattern, when doing so would be detrimental
to the [Child’s] interests.” State ex rel. Children, Youth & Families Dep’t v. Mafin M., 2003-
NMSC-015, ¶ 24, 133 N.M. 827, 70 P.3d 1266 (internal quotation marks and citation
omitted).

CONCLUSION

{20}   The judgment terminating Father’s parental rights is affirmed.

{21}   IT IS SO ORDERED.

                                               ____________________________________
                                               MICHAEL E. VIGIL, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

_________________________________
STEPHEN G. FRENCH, Judge



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