                                                      I attest to the accuracy and
                                                       integrity of this document
                                                         New Mexico Compilation
                                                       Commission, Santa Fe, NM
                                                      '00'05- 09:10:54 2015.12.09

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMCA-115

Filing Date: August 20, 2015

Docket No. 34,061

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

       Petitioner-Appellee,

v.

CHRISTINA L.,

       Respondent-Appellant,

and

IN THE MATTER OF JUSTIN L.,

       Child.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
John F. Davis, District Judge

Children, Youth and Families Department
Charles E. Neelley, Chief Children’s Court Attorney
Kelly P. O’Neill, Children’s Court Attorney
Albuquerque, NM

for Appellee

Law Office of Gina M. Maestas
Gina M. Maestas
Albuquerque, NM

for Appellant

Sherrie Lee Trescott, Esq.
Rio Rancho, NM

                                          1
Guardian Ad Litem

                                           OPINION

FRY, Judge.

{1}     Mother appeals the district court’s judgment of adjudication concluding that her child
was neglected on the basis of Mother’s inability to care for the child due to a mental disorder
or incapacity. On appeal, Mother argues that the evidence was insufficient to support this
conclusion because no evidence of a psychological or medical diagnosis of mental disorder
or incapacity was presented. We conclude that the district court’s findings do not support a
determination that Child was neglected pursuant to NMSA 1978, § 32A-4-2(E)(4) (2009).
Accordingly, we reverse.

BACKGROUND

{2}      This is Mother’s second appeal of a judgment of adjudication concluding that Child
is neglected. Child was initially taken into the Children, Youth, and Families Department’s
(CYFD) custody in 2009 based on allegations that domestic violence toward Mother was
taking place in the home. In the first case, the district court found that Child was neglected
and abused pursuant to Section 32A-4-2(B)(1), (4), and (E)(2) (“[A]bused child means a
child . . . who has suffered or who is at risk of suffering serious harm because of the action
or inaction of the child’s parent, guardian or custodian . . . [or] whose parent, guardian or
custodian has knowingly, intentionally or negligently placed the child in a situation that may
endanger the child’s life or health. . . . [A] ‘neglected child’ means a child . . . who is without
proper parental care and control or subsistence, education, medical or other care or control
necessary for the child’s well-being because of the faults or habits of the child’s parent,
guardian or custodian or the failure or refusal of the parent, guardian or custodian, when able
to do so, to provide them[.]”). In Mother’s appeal in the first case, this Court concluded that
the district court abused its discretion in admitting 911 dispatch logs and that without these
logs there was insufficient evidence to support the district court’s conclusion that Child was
abused or neglected. State ex rel. Children, Youth & Families Dep’t, No. 31,151, mem. op.
2, 10 (N.M. Ct. App. Sept. 18, 2012) (non-precedential).We remanded the case to the district
court to determine whether Mother should regain custody of Child. Id. at 12.

{3}     On remand, the district court adopted a permanency plan for reunification. Mother
participated with CYFD in the reunification plan over the next several months; however,
CYFD subsequently filed a motion for leave to file a supplemental abuse and neglect petition
on the basis of Section 32A-4-2(E)(4) (stating that one basis of determining that a child is
neglected is when the “parent, guardian or custodian is unable to discharge that person’s
responsibilities to and for the child because of incarceration, hospitalization or physical or
mental disorder or incapacity”). In support of CYFD’s allegation that Mother suffers from
a mental disorder or incapacity, CYFD stated that Mother had submitted to a “mind map
assessment” by Dr. Craig Pierce, a psychologist. The petition alleged that the mind map

                                                2
determined Mother’s mental capacity to be functionally equivalent to an eight- to ten-year-
old child. CYFD moved to consolidate the two cases. Although the district court did not
specifically rule on this motion, an adjudicatory hearing was scheduled to determine whether
Child was neglected pursuant to the allegations in CYFD’s supplemental petition.

{4}      At the hearing, Dr. Pierce was qualified as an expert in child and family psychology.
Dr. Pierce described the mind map as a non-diagnostic therapeutic tool to assess an
individual’s developmental history. Dr. Pierce described the process as “relatively simple”
and includes gathering information regarding the individual’s family history and adverse
childhood events that may have impacted the individual’s brain development. Dr. Pierce
testified that the mind map relies on a nine-page questionnaire to gather this information. He
further testified that the mind map uses this self-reported information to evaluate cognitive
and relational brain development, as well as sensory integration and self-regulation, and
compares the results in those categories to “age typical” results. Dr. Pierce testified that
Mother’s results showed her to be in the fortieth percentile for people her age. Dr. Pierce
concluded that, based on the mind map, Mother’s brain development in the areas covered
by the mind map were “significantly compromised” and that she functioned mentally at a
lower age range to comparably aged adults. Dr. Pierce testified that, based on the results,
Mother’s ability to parent a small child was affected by her limitations, such as her ability
to exercise sound judgment and prioritize the needs of Child. On cross-examination,
however, Dr. Pierce clarified that the purpose of the mind map was to direct therapy and
assist Mother in learning parenting skills, not to diagnose a mental disorder or condition or
to act as a standardized test for determining an individual’s intelligence, such as an IQ test.

{5}      Child’s therapist, Brenda Lee, also testified at the hearing. Lee testified that while
Mother showed aptitude in learning about Child’s various mental diagnoses, Lee was
frustrated by Mother’s resistance to the “understanding training” Lee attempted to impart.
Lee testified that Mother attempted to speak secretly to Child during supervised visits
despite CYFD’s instruction to Mother not to discuss Child’s foster situation with Child. Lee
testified that Mother’s visits incited Child to exhibit reactive behaviors when he returned to
his foster parents. Lee also testified that Mother threatened her on one occasion.

{6}      Testimony by CYFD representatives echoed Lee’s testimony. One representative
testified that, although Mother was eager to meet with CYFD representatives, she had
difficulty accepting constructive feedback and focusing on treatment goals. Mother also
withdrew during meetings where she disagreed with discussions. Mother became resistant
to further training by Lee after she was instructed on the results of the mind map.

{7}     Sarah Blackwell, a CYFD representative, further testified regarding her concerns
arising from a home assessment at Mother’s residence. Blackwell noted that at the time of
the visit, she observed that Mother had five dogs and a number of pet rats living at the
residence. She testified that due to these animals, the home smelled of urine or feces.
Blackwell also noted overflowing trash cans and general clutter throughout the home.
Blackwell also expressed concern for the way in which Mother stored her medications and

                                              3
the presence of alcohol stored near Mother’s bed.

{8}     Mother also testified at the hearing. Pertinent to her testimony was the introduction
of certificates showing Mother’s successful completion of various parenting classes,
including certificates awarded by Lee.

{9}    Finally, although psychological evaluations of Mother were performed by Dr.
Christopher Alexander and Dr. Nesha Morse, neither was called to testify. A CYFD
representative was questioned regarding the findings of the psychological evaluations but
could not recall the results. Reports of the evaluations were not otherwise introduced into
evidence.

{10} At the conclusion of the hearing, the district court concluded that Child was
neglected pursuant to Section 32A-4-2(E)(4). In issuing its ruling, the district court made
repeated statements to the effect that Mother was a “bright woman,” “capable of learning and
mastering information,” and that she possessed an “intellectual ability that seems to hold
promise.” The district court concluded, however, that Mother’s defiance toward CYFD
evidenced an inability to safely parent Child. The district court equated Mother’s defiance
with a lack of judgment and with mental incapacity. The district court found that Mother was
unwilling to accept training from CYFD for the benefit of Child but was instead insistent on
vindictively acting out against CYFD. Accordingly, the district court concluded that the
evidence was clear and convincing under Section 32A-4-2(E)(4) that Child was neglected.
Mother appeals this determination.

DISCUSSION

Standard of Review

{11} “To meet the standard of proof in an abuse or neglect proceeding, the fact finder must
be presented with clear and convincing evidence that the child was abused or neglected.”
State ex rel. Children, Youth & Families Dep’t v. Shawna C., 2005-NMCA-066, ¶ 7, 137
N.M. 687, 114 P.3d 367. “For evidence to be clear and convincing, it must instantly tilt 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.” Id. (internal
quotation marks and citation omitted). “We employ a narrow standard of review and do not
re-weigh the evidence.” State ex rel. Children, Youth & Families Dep’t v. Amanda H., 2007-
NMCA-029, ¶ 19, 141 N.M. 299, 154 P.3d 674. Instead, “we review to determine whether,
viewing the evidence in the light most favorable to the prevailing party, the fact finder could
properly determine that the clear and convincing evidence standard was met.” Id.

{12} To the extent Mother’s arguments require interpretation of Section 32A-4-2(E)(4),
we review such arguments de novo. In re Mahdjid B., 2015-NMSC-003, ¶ 12, 342 P.3d 698
(“Statutory interpretation is a question of law, which we review de novo.” (internal quotation
marks and citation omitted)).

                                              4
Section 32A-4-2(E)(4)

{13} We begin with Mother’s argument that there was insufficient evidence to support the
district court’s conclusion that Child was neglected under Section 32A-4-
2(E)(4) because the district court made no findings supporting a conclusion that Mother
suffers from a mental disorder or incapacity. Mother highlights statements made by the
district court during its ruling indicating that Mother was mentally capable. Mother argues
that the district court erred in equating Mother’s defiant attitude toward CYFD with a mental
disorder or incapacity.

{14} Section 32A-4-2(E)(4) defines a neglected child as one “whose parent, guardian or
custodian is unable to discharge that person’s responsibilities to and for the child because
of [a] . . . mental disorder or incapacity[.]” This section requires proof by clear and
convincing evidence that the individual suffers from a mental disorder or incapacity and that
such mental disorder or incapacity “render[s] the parent unable to provide proper parental
care or discharge his or her responsibilities to the child.” Amanda H., 2007-NMCA-029, ¶
25; See Section 32A-4-2(E)(4).

{15} The terms “ mental disorder” and “mental incapacity” as used in Section 32A-4-
2(E)(4) have not been specifically construed. In construing this provision, “we must
ascertain and give effect to the intention of the Legislature.” Stang v. Hertz Corp., 1969-
NMCA-118, ¶ 17, 81 N.M. 69, 463 P.2d 45. “[T]he plain language of a statute is the primary
indicator of legislative intent.” High Ridge Hinkle Joint Venture v. City of Albuquerque,
1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599 (internal quotation marks and citation
omitted). Furthermore, we consider the language of the statute as a whole and construe it “so
that no word and no part of the statute is rendered surplusage or superfluous.” Stang, 1969-
NMCA-118, ¶ 17.

{16} In accordance with these principles, two points are readily apparent. First, the
Legislature intended the conditions listed under Section 32A-4-2(E)(4) to be grounds for
adjudicating a child neglected distinct from those found in Section 32A-4-2(E)(2) (stating
that a “neglected child means a child . . . who is without proper parental care and control or
subsistence, education, medical or other care or control necessary for the child’s well-being
because of the faults or habits of the child’s parent, guardian or custodian or the failure or
refusal of the parent, guardian or custodian, when able to do so, to provide them”). Second,
the Legislature intended mental incapacity to be a separate condition from mental disorder.

{17} In first considering the distinction between Section 32A-4-2(E)(2) and 32A-4-
2(E)(4), the distinguishing feature under Section 32A-4-2(E)(4) is the requirement that
CYFD establish by clear and convincing evidence that one of the listed conditions—such
as a mental disorder or incapacity—is the cause of the parent’s inability to discharge his or
her responsibilities to the child. See Amanda H., 2007-NMCA-029, ¶ 25 (stating that
establishing one of the conditions listed in Section 32A-4-2(E)(4) is insufficient to support
an adjudication that the child is neglected but must instead be the reason the parent is unable

                                              5
to discharge his or her responsibilities to the child). In contrast, under Section 32A-4-2(E)(2)
it is sufficient that the parent’s failure to care for the child’s well-being is a result “of the
faults or habits of the . . . parent.” This provision, as opposed to Section 32A-4-2(E)(4),
requires culpability on the part of the parent. See Shawna C., 2005-NMCA-066, ¶ 29; see
also Amanda H., 2007-NMCA-029, ¶ 21 (“To properly find that [the c]hild was neglected
under [Section 32A-4-2(E)(2)], the district court must have been presented with clear and
convincing evidence of Mother’s culpability through intentional or negligent disregard of
[the c]hild’s well-being and proper needs.”). Thus, when CYFD proceeds under Section
32A-4-2(E)(4), it is not required to prove culpable behavior of the parent, but it also cannot
rely on evidence of the parent’s negligent or intentional disregard of the child’s needs.
Instead, CYFD must establish the “status” that makes the individual unable to discharge his
or her parental responsibilities and show the connection between that status and the neglect
or abuse. See Shawna C., 2005-NMCA-066, ¶ 29; see also Amanda H, 2007-NMCA-029,
¶ 25 (“The unfavorable personal status of the parent . . . is relevant only to the extent that it
prompts either the harms defined as abuse, or the neglect.” (internal quotation marks and
citation omitted)).

{18} Second, the plain meaning of the terms “mental disorder or incapacity” in Section
32A-4-2(E)(4) indicates that the Legislature intended these terms to refer to two separate
conditions. In Shawna C., this Court noted that the statute was amended in 1987 to include
the word “disorder” to clarify “the circumstances in which a parent’s inability to function
as a parent would constitute neglect without a showing of culpability.” 2005-NMCA-066,
¶ 35. We believe the purpose of this amendment was to clarify that mental illness was an
included “status” under Section 32A-4-2(E)(4). In this regard, Black’s Law Dictionary 1135
(10th ed. 2014) defines “mental disorder” and “mental illness” synonymously. Mental illness
is defined as evidencing “a disorder in thought or mood so substantial that it impairs
judgment, behavior, perceptions of reality, or the ability to cope with the ordinary demands
of life.” This definition comports with the definition of mental disorder used elsewhere in
our statutes. See NMSA 1978, § 43-1-3(O) (2013) (defining mental disorder as the
“substantial disorder of a person’s emotional processes, thought or cognition that grossly
impairs judgment, behavior or capacity to recognize reality, but does not mean
developmental disabilit[ies]”).

{19} The term “incapacity,” on the other hand, is defined in Black’s Law Dictionary 878
(10th ed. 2014) as a “[l]ack of physical or mental capabilities.” In this case, we are
concerned with mental capabilities. In State ex rel. Health & Social Services Department v.
Natural Father, this Court stated that “a child is neglected if the parents lack the mental
capacity to provide the care or control necessary for the child’s well-being.” 1979-NMCA-
090, ¶ 9, 93 N.M. 222, 598 P.2d 1182. Consistent with Black’s Law Dictionary and Natural
Father, our probate code, in the context of the parent/child relationship, defines “incapacity”
as the “inability of an individual to function as a parent of a child because of the individual’s
physical or mental condition[.]” NMSA 1978, § 45-2-115(H) (2011). In construing a similar
term, the Nebraska Supreme Court distinguished “mental deficiency” from “mental illness”
in defining mental deficiency as “an impairment in learning capacity such that one is unable

                                               6
to profit from instruction and acquire parenting skills.”). In re D.L.S., 432 N.W.2d 31, 38
(Neb. 1988) (internal quotation marks and citation omitted). Taking these definitions into
consideration, we believe that the Legislature intended mental incapacity to encompass those
circumstances in which an individual, due to an intellectual disability, is unable, as opposed
to unwilling, to discharge his or her responsibilities to the child.

{20} Turning to the district court’s decision in this case, we determine that the district
court’s findings did not support a conclusion that Child was neglected pursuant to Section
32A-4-2(E)(4). The district court entered no written findings of fact. We therefore consider
its statements at the conclusion of the hearing to clarify the basis of its decision. See
Ledbetter v. Webb, 1985-NMSC-112, ¶ 36, 103 N.M. 597, 711 P.2d 874 (indicating that the
district court’s verbal comments can be used to clarify ruling). The district court did not
make any finding that Mother suffered from a mental disorder or illness. Nor did it find that
Mother suffered from mental incapacity. The district court explicitly stated that Mother was
“capable of learning and mastering info” and that she was a “bright woman” who showed
a “capacity to learn.” We understand these findings to be in direct contradiction to a
determination that Mother lacked the intellectual capacity to “profit from instruction and
acquire parenting skills.” D.L.S., 432 N.W.2d at 38.

{21} Furthermore, the determinative factor in the district court’s decision was Mother’s
defiant attitude toward CYFD. Testimony at the hearing indicated that Mother displayed an
unwillingness to accept feedback and instruction from CYFD with which she disagreed and
that this dynamic grew worse after Mother was given the results of the mind map
assessment. While the district court stated that Mother’s defiant attitude was affecting her
ability to recognize the conditions she needed to improve in order to safely parent Child, we
conclude that such findings may be relevant to establishing that the faults and habits of
Mother render her unwilling to provide proper parental care under Section 32A-4-2(E)(2),
but they are not sufficient to show that Child is neglected under Section 32A-4-2(E)(4).
Stated another way, we are unprepared to conclude that evidence of a defiant attitude toward
CYFD constitutes a mental disorder or incapacity under the Abuse and Neglect Act.
Accordingly, the district court erred in concluding that CYFD established by clear and
convincing evidence that Child was neglected pursuant to Section 32A-4-2(E)(4).

Dr. Pierce’s Testimony

{22} While the parties’ briefing largely focused on Dr. Pierce’s testimony regarding
Mother’s mind map and whether, as a general matter, expert testimony is required to
establish the existence of a mental disorder or incapacity sufficient to adjudicate a child
neglected under Section 32A-4-2(E)(4), we need not address it. The district court’s
comments did not suggest any reliance on Dr. Pierce’s testimony, and the court’s verbal
findings regarding Mother’s defiance of CYFD were not supported by Dr. Pierce’s
testimony. Indeed, Dr. Pierce testified that the mind map was not a diagnostic tool. While
we acknowledge that there may be cases in which expert testimony is not required, cf.
Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, ¶ 19, 326 P.3d 50 (noting that

                                              7
in some instances expert testimony is not required to prove instances of medical negligence),
cert. denied, 2014-NMCERT-005, 326 P.3d 1111, we observe that it is unlikely that a
finding of neglect under the “mental disorder or incapacity” element of Section 32A-4-
2(E)(4) could be sustained by anything other than a diagnosis supported by the evidentiary
reliability of the underlying scientific knowledge. See State v. Torres, 1999-NMSC-010, ¶
24, 127 N.M. 20, 976 P.2d 20 (explaining that “it is error to admit expert testimony
involving scientific knowledge unless the party offering such testimony first establishes the
evidentiary reliability of the scientific knowledge”). Accordingly, to the extent the district
court’s order can be construed as relying on Dr. Pierce’s opinion that Mother functions at
a lower cognitive ability, we do not believe this opinion was properly supported.

CONCLUSION

{23} For the foregoing reasons, we reverse the district court’s judgment of adjudication
and remand for proceedings consistent with this Opinion.

{24}   IT IS SO ORDERED.

                                              ____________________________________
                                              CYNTHIA A. FRY, Judge

WE CONCUR:

____________________________________
MICHAEL E. VIGIL, Chief Judge

____________________________________
M. MONICA ZAMORA, Judge




                                              8
