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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 09:23:55 2012.05.09
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2012-NMCA-045
Filing Date: March 21, 2012
Docket No. 31,311
STATE OF NEW MEXICO ex rel.
CHILDREN, YOUTH and FAMILIES
DEPARTMENT,
Petitioner-Appellee,
v.
STEVE C.,
Respondent-Appellant,
and
JULIA A.,
Respondent,
IN THE MATTER OF ALEXIS C. and
MICHAEL C.,
Children.
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
John F. Davis, District Judge
Oneida L’Esperance, Chief Children’s Court Attorney
Rebecca J. Liggett, Children’s Court Attorney
Santa Fe, NM
for Appellee
Jane B. Yohalem
Santa Fe, NM
for Appellant
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Michael J. Doyle
Los Lunas, NM
Guardian ad Litem
OPINION
CASTILLO, Chief Judge.
{1} Father appeals from an adjudication of abuse of his two children pursuant to NMSA
1978, Section 32A-4-2(B)(1) (2009). Father claims that hearsay evidence was improperly
admitted and that the district court erred in allowing an amendment to the petition at the end
of the adjudicatory hearing to include the claim of abuse. We hold that the amendment to
the pleading was improper, and we reverse the adjudication of abuse on that ground.
BACKGROUND
{2} In December 2010, the Children, Youth and Families Department (CYFD) filed a
petition against Father and Mother alleging neglect and abandonment of their children Alexis
and Michael (Children). See § 32A-4-2(E)(1) (defining a neglected child as one “who has
been abandoned by the child’s parent); § 32A-4-2(E)(2) (defining a neglected child as one
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 . . . or [the] refusal of the parent . . . when able to do so, to provide them”).
The adjudicatory hearing for Father was held on April 14-15, 2011; Mother was not part of
this hearing and is not a party to this appeal.
{3} We provide a short summary of the facts presented at the hearing in order to give
context to this appeal. Mother abandoned Children as toddlers, after which they were raised
for the most part by their maternal grandmother (Grandmother). At first, Father would drop
Children off with Grandmother and leave them for a week or two at a time. Eventually, he
left Children with Grandmother as the primary caregiver until late 2009. During that time,
Children would occasionally live with Father for a few months at a time, such as when
Alexis was of kindergarten age; when Michael was in fourth, fifth, or sixth grade; and in the
summer of 2010. Grandmother said Father was often hard to find and that her contact with
him was limited to the times she needed his signature to give her power of attorney in order
to care for the Children, which Father provided several times over the years. When Michael
was twelve years old, Father lived nearby, and on about four occasions Michael would go
over to Father’s house for short visits. Grandmother testified that generally Father did not
visit on holidays nor did he show an interest in Children’s education or extracurricular
activities. Father provided no financial support to Grandmother but allowed her to deduct
Children as dependents on her tax return. Father explained that at one point he had paid for
psychotherapy sessions for Michael and interacted with the therapist, but except for that,
Father left it to others to provide for Children’s medical care. Father testified that the
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therapist told him that Michael had seen bad things when the boy had been with Mother.
Several witnesses testified that Mother used drugs and that she associated with and exposed
Children to others who used drugs.
{4} In December 2009, Mother returned to Children’s lives and brought them to live with
her boyfriend, Gustavo, in Santa Fe. When Mother abandoned Children a second time in
February 2010, Gustavo continued to take care of Children. Children had an overnight visit
with Father in May or June 2010, and when Gustavo picked them up, he noticed that
Michael seemed lethargic and glassy-eyed. When Gustavo inquired about the boy’s
demeanor, Michael became insolent and stated that Father had allowed him to smoke
marijuana. Gustavo testified that in July 2010 Mother took Children, and Gustavo later had
to rescue Michael from nearby Grandmother’s home after Michael called Gustavo explaining
that “there was a guy who was beating him up” and “a pound of meth on the table.” Father
continued to allow Children to live with Gustavo during 2010, but Father provided no
financial or medical support despite Gustavo’s attempts to contact Father for this assistance.
Father asserted his parental rights when he found out that Children had been taken into
custody by CYFD in December 2010. Gustavo told CYFD that he had trouble providing
medical care for Children and called police to help resolve the custody issue. Grandmother
offered to seek custody of Children, but Children resisted staying there because of others in
the home who were alleged to drink and take drugs.
{5} At the end of the hearing—after all of the evidence had been presented—CYFD
asserted in its closing argument that there was sufficient evidence presented at the hearing
to support a finding of abuse. The court considered this as a motion to conform to the
evidence pursuant to Rule 1-015(B) NMRA and granted the motion. The court then found
clear and convincing evidence that Father had neglected and abused Children, but
insufficient evidence that Father had abandoned Children. This appeal followed.
DISCUSSION
Preliminary Issues
{6} We have two preliminary issues. First, we note that Father is not challenging the
adjudication of neglect against him under Section 32A-4-2(E)(2). Thus, we do not review
the adjudication of neglect by Father as determined by the district court. Durham v. Guest,
2007-NMCA-144, ¶ 9, 142 N.M. 817, 171 P.3d 756 (stating that issues not argued on appeal
will not be reviewed on appeal), overruled on other grounds by 2009-NMSC-007, 145 N.M.
694, 204 P.3d 19. Accordingly, the district court had a basis on which to make a disposition
of the case. NMSA 1978, § 32A-4-22(B) (2005).
{7} Secondly, Father argues that the district court erred in admitting and relying on
hearsay statements by Children and by Mother to conclude that Father abused Children.
Because we reverse the portion of the adjudication based on abuse, we need not address this
evidentiary question.
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Amendment of the Petition After the Close of Evidence
{8} We now turn to the question of whether the district court erred in allowing the
amendment of the petition after closing statements. As a general matter, “Amendments are
within the [district] court’s discretion and will be reversed on appeal only for abuse of
discretion.” Bellet v. Grynberg, 114 N.M. 690, 692, 845 P.2d 784, 786 (1992) (internal
quotation marks and citation omitted). Because resolution of this matter involves the
interpretation and application of rules and a statute, our review is de novo. In re Daniel H.,
2003-NMCA-063, ¶ 8, 133 N.M. 630, 68 P.3d 176. The review of issues dealing with the
denial of Father’s rights to procedural due process is also a question of law that we review
de novo. See State ex rel. Children, Youth & Families Dep’t v. Ruth Anne E., 1999-NMCA-
035, ¶ 22, 126 N.M. 670, 974 P.2d 164.
{9} After closing arguments, the district court addressed the amendment question as
follows:
Rule 10-101 [NMRA] does bootstrap, essentially, the Rules of Civil
Procedure, so we look to [Rule 1-015] for guidance on the issue of whether
the pleadings should be amended to conform to the evidence. I just want to
lay out my thinking on this in the event there is a need to have a court review
this. What we see is Rule 1-015(B), amendments to conform to the evidence.
[reading:] “When issues not raised by the pleadings” —and specifically
we’re talking about the allegation of abuse—“are tried by express or implied
consent of the parties, they shall be treated in all respects as if they had been
raised in the pleadings.
Rule 10-101 is found in the Children’s Court Rules, while Rule 1-015 is part of the Rules
of Civil Procedure for the District Courts. CYFD concedes that “[a]djudications of abuse
and neglect are governed by the Children’s Code and the Children’s Court Rules and not the
Rules of Civil Procedure[,]” and therefore the district court incorrectly applied Rule 1-015.
We agree. Rule 10-101(A) directs:
Except as specifically provided by these rules, the following rules of
procedure shall govern proceedings under the Children’s Code [NMSA 1978,
§ 32A-1-1 (1995)]:
(1) the Children’s Court Rules govern procedure in the children’s
courts of New Mexico in all matters involving children alleged by the state:
...
(c) to be abused or neglected as defined in the Abuse and
Neglect Act[.]
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The Children’s Code sets forth the procedure to be used when petitions are amended:
When it appears from the facts during the course of any proceeding under the
Children’s Code that some finding or remedy other than or in addition to
those indicated by the petition or motion are appropriate, the court may,
either on motion by the children’s court attorney or that of counsel for the
child, amend the petition or motion and proceed to hear and determine the
additional or other issues, findings or remedies as though originally properly
sought.
NMSA 1978, § 32A-1-18(A) (1995) (emphasis added).
{10} Along these lines, CYFD acknowledges that Section 32A-1-18 does not contain
language allowing an amendment when issues not raised by the pleadings are tried by the
express or implied consent of the parties. Relying on State v. Franks, 119 N.M. 174, 889
P.2d 209 (Ct. App. 1994), and State v. Salgado, 112 N.M. 793, 819 P.2d 1351 (Ct. App.
1991), CYFD argues that the district court ruling should be affirmed under the “right for any
reason” doctrine. Franks, 119 N.M. at 177, 889 P.2d at 212 (allowing affirmance when a
district court ruling is correctly based “on a ground not relied upon by the district court” but
not “if reliance on the new ground would be unfair to the appellant”); Salgado, 112 N.M. at
796, 819 P.2d at 1354 (same). According to CYFD, allowing the amendment under Rule 1-
015 would be consistent with the primary purpose of the Children’s Code to “provide for the
care, protection[,] and wholesome mental and physical development of children coming
within the provisions of the Children’s Code” as set forth in NMSA 1978, Section 32A-1-
3(A) (2009). We disagree.
{11} We begin by looking at the plain language of the statute. In re Jade G., 2001-
NMCA-058, ¶ 16, 130 N.M. 687, 30 P.3d 376 (“In pursuing this question of construction of
the Children’s Code, we look initially to the plain language of the Code to ascertain
legislative intent.”). Section 32A-1-18(A) refers to facts presented that would support “some
finding or remedy other than or in addition to those indicated by the petition or motion” and
then directs that the district court may “amend the petition or motion and proceed to hear and
determine the additional or other issues, findings[,] or remedies as though originally properly
sought.” Father was put on notice regarding claims of neglect and abandonment, but he first
learned of the abuse claim during CYFD’s closing argument at the end of the proceedings.
Once the district court grants a motion to amend, Section 32A-1-18(A) requires the court to
“proceed to hear and determine the additional or other issues, findings[,] or remedies,” which
in this case pertain to the new allegation of abuse. Here, the district court granted the motion
to amend the petition, immediately made its ruling, and did not “proceed to hear” the
additional issue. We note that proof of abuse requires elements that are different from those
elements required to prove neglect. An abused child is defined as one “who has suffered or
who is at risk of suffering serious harm because of the action or inaction of the child’s
parent[.]” Section 32A-4-2(B)(1). A neglected child is one “who is without proper parental
care and control or subsistence, education, medical[,] or other care . . . because of the faults
5
or habits of the child’s parent[.]” Section 32A-4-2(E)(2). Throughout the proceedings,
Father was defending against allegations of neglect and abandonment, not abuse. Once the
petition was amended, Father was not given the opportunity to defend against the new charge
of abuse. We conclude that the court erred by relying on Rule 1-015 and by not following
the requirements of Section 32A-1-18.
{12} Our interpretation of Section 32A-1-18 is consistent with the guarantees of due
process. “[N]eglect and abuse proceedings must . . . be conducted in a manner that affords
the parents constitutional due process.” In re Pamela A.G., 2006-NMSC-019, ¶ 11, 139
N.M. 459, 134 P.3d 746. “Process is due when a proceeding could affect or interfere with
the relationship between a parent and a child.” State ex rel. Children, Youth & Families
Dep’t v. Browind C., 2007-NMCA-023, ¶ 20, 141 N.M. 166, 152 P.3d 153. Even though the
early stages of neglect and abuse proceedings do not involve the termination of parental
rights, that due process requirement “begins with the filing of a petition for neglect and
abuse.” Pamela A.G., 2006-NMSC-019, ¶ 11 (internal quotation marks and citation
omitted).
{13} Due process requires “timely notice reasonably calculated to inform the person
concerning the subject and issues involved in the proceeding; a reasonable opportunity to
refute or defend against a charge or accusation; [and] a reasonable opportunity to confront
and cross-examine adverse witnesses and present evidence on the charge or accusation[.]”
Id. ¶ 12 (internal quotation marks and citation omitted). To evaluate the process owed to a
parent in abuse and neglect proceedings, we utilize the balancing test from Mathews v.
Eldridge, 424 U.S. 319 (1976). See State ex rel. Children, Youth & Families Dep’t v. Mafin
M., 2003-NMSC-015, ¶ 19, 133 N.M. 827, 70 P.3d 1266. We weigh three factors under the
Mathews test: (1) the parent’s interest, (2) the risk to the parent of an erroneous deprivation
in light of the probable value of additional or substitute procedures as safeguards, and (3) the
government’s interest. Browind C., 2007-NMCA-023, ¶ 31. “Parents’ interest in
maintaining a parental relationship with [their] children is a fundamental right that merits
strong protection.” Pamela A.G., 2006-NMSC-019, ¶ 13 (alteration in original) (internal
quotation marks and citation omitted). “The government’s interest in protecting the welfare
of children is equally significant.” Id. We thus focus on the second prong and compare the
risk to the parent of erroneous deprivation of rights with the potential burden to the state
associated with additional procedures.
{14} Here, the risk to Father of erroneously depriving him of his rights is high. As we
explained above, the procedure followed by the court prevented Father from presenting a
defense to the new charge of abuse. Father was not given adequate notice of the new charge
nor was he given the opportunity “to be heard at a meaningful time and in a meaningful
manner.” State ex rel. Children, Youth & Families Dep’t v. Maria C., 2004-NMCA-083, ¶
26, 136 N.M. 53, 94 P.3d 796 (internal quotation marks and citation omitted). Father “did
not have a fair opportunity to defend” against the claim of abuse, nor was he allowed to
“offer[] additional evidence on the new theory.” Bellet, 114 N.M. at 692, 845 P.2d at 786.
Denial of notice and the opportunity to be heard is especially prejudicial in light of the
6
relationship between the adjudicatory findings and any proceedings related to the
termination of Father’s parental rights. We agree with Father that he was “blind-sided” by
the amended petition “sprung on him” at the end of the proceedings.
{15} By contrast, the burden on the state to provide additional procedural safeguards—i.e.,
“proceed[ing] to hear and determine the additional or other issues” and allowing Father to
mount a defense to the charge of abuse—is minor. The district court spent parts of one
afternoon and the next morning adjudicating the case against Father. According to CYFD,
all of the facts that supported the court’s findings were readily discoverable before the
hearing and the evidence supporting neglect was equally relevant to a claim of abuse.
Therefore, there was nothing to prevent CYFD from moving to amend its petition before the
hearing. And once the motion was granted at the end of the hearing, the court could have
extended the proceedings to allow Father to present his defense to the added charge, or if
time presented a problem, the court could have adjudicated the neglect issue and set the
abuse issue for another day. None of these options place a significant burden on CYFD or
the district court.
{16} We also observe that whether Father was afforded due process is not dependent on
whether he would have prevailed had he been given adequate notice; rather, Father need only
show “that there is a reasonable likelihood that the outcome might have been different.”
Maria C., 2004-NMCA-083, ¶ 37. Because Father was not aware that he was facing
allegations of abuse, he had not investigated or prepared a defense in this regard. His
evaluation of the evidence presented was in relation to the neglect and abandonment issues,
not to abuse. His strategy regarding objections might have been different had he known that
he needed to defend against claims of abuse. Accordingly, we conclude that there is a
reasonable likelihood that the outcome might have been different had notice been given.
Applying the Mathews test to the circumstances of this case, we conclude that Father’s due
process rights were violated by the amendment procedure.
CONCLUSION
{17} For the foregoing reasons, we reverse the adjudication of child abuse against Father.
As we have explained, the adjudication as to neglect was not appealed and the disposition
of the case based on neglect was proper. We remand for any proceedings the court may want
to take with regard to the disposition now that the determination as to abuse has been
reversed.
{18} IT IS SO ORDERED.
____________________________________
CELIA FOY CASTILLO, Chief Judge
WE CONCUR:
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____________________________________
JONATHAN B. SUTIN, Judge
____________________________________
J. MILES HANISEE, Judge
Topic Index for State of NM ex rel CYFD v. Steve C., Docket No. 31,311
CD CHILDREN
CD-CC Children’s Code
CT CONSTITUTIONAL LAW
CT-DP Due Process
CL CRIMINAL LAW
CL-CN Child Abuse and Neglect
CA CRIMINAL PROCEDURE
CA-AM Amendments to Pleadings
CA-NO Notice
ST STATUTES
ST-IP Interpretation
ST-LI Legislative Intent
ST-RC Rules of Construction
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