Termination of Parental Rights in New Mexico – Family Members Must be Considered for Placement

On September 26, 2012, the Court of Appeals of New Mexico issued its ruling in the case of State of New Mexico vs. Laura J. The Court of Appeals upheld the district court‘s termination of Laura J.‘s parental rights, but determined that the New Mexico Department of Children Youth and Families (“CYFD”) had not met its burden to attempt to place Laura J.‘s child with a relative.

The Court of Appeals remanded the case back to the district court and required CYFD to conduct a thorough inquiry into placement of the child with a family member who had sought custody of the child.

The case began in December, 2008, when CYFD received information that Laura J. was abusing drugs and physically neglecting her child. During CYFD‘s investigation, it found that the child‘s hands and face were dirty; he had scratches and abrasions on his hands and shins, and a rash on his buttocks. CYFD officials took the child to the hospital because he could not sit up, could not hold his head up and was not responsive. The child tested positive for opiates, had impetigo and was clearly hungry. The child was then placed in foster care.

The district court ordered CYFD to retain custody of the child and he was placed with a foster family while permanent placement was explored, which included giving Laura J. time to work on her issues so that she could potentially be reunited with the child. When Laura J. was admitted to a rehabilitation facility, the child was placed with her until she was unsuccessfully discharged at which time the child was again placed with foster parents.

Laura J. began therapy, but was erratic with attendance and her therapist did not believe she was remaining sober. By October, 2009, Laura J. was not making it to all her visits with the child, failing to take urinalyses, missing therapy appointments and missing parenting appointments. On April 21, 2011, the district court issued a final judgment terminating Laura J.‘s parental rights because the causes and conditions of Laura J.‘s neglect were not likely to change in the foreseeable future, even with CYFD‘s efforts to assist her.

The New Mexico Abuse and Neglect Act (“the Act”), 1978 NMSA § 32A- 4-1 et. seq., governs the termination of a parent‘s rights and subsequent placement of their child or children. A parent‘s rights can be terminated if the court finds clear and convincing evidence that the parent is unable to properly care for their child and that the conditions and causes of the neglect are unlikely to change in the foreseeable future. Under the Act, CYFD is charged with investigating allegations of abuse of neglect and finding placement for children when their parents are unable or unwilling to care for them. CYFD is required, whenever possible, to preserve the unity of a child‘s family by placing children with family members for foster care or adoption.

In Laura J., the Court of Appeals found that CYFD had made reasonable efforts to accommodate Laura J.‘s emotional and addiction problems by providing referrals to services intended to help her fight her addiction and become a better parent. However, Laura J. failed to take advantage of CYFD‘s efforts to help her and the district court was convinced that Laura J‘s behavior would not change for the foreseeable future. Therefore, the Court of Appeals upheld the decision to terminate Laura J.‘s parental rights.

However, the Court of Appeals found that CYFD was required to make every effort to identify any relatives of Laura J.‘s child who were appropriate candidates to accept custody of the child and investigate whether any of those relatives were willing to accept custody. Laura J.‘s cousin Colin had repeatedly approached CYFD asking to be considered as a custodian for the child, but CYFD did not consider placing the child with Colin. The Court of Appeals found that CYFD had not made a reasonable effort to place the child with a family member because it failed to consider Colin as a custodian for the child. The Court of Appeals went on to say that the district court has a duty to make a serious inquiry into whether CYFD has met its burden with respect to placing children with family members.


Related Reading:
Acquiring Third Party Child Custody in New Mexico
Rules Regarding Parental Fitness in New Mexico Kinship Guardianship
Petitioning for Guardianship Under New Mexico‘s Kinship Guardianship Act

Collins & Collins, P.C.
Albuquerque Attorneys

Share your thoughts