The slip opinion is the first version of an opinion released by the Chi ef Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA, authenticated and formally published. The slip opinion may contain d eviations from the formal authenticated opinion. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number:

________________ 2

F iling Date: August 31, 2022 3

No. A

- 1

- CA

- 39557 4

STATE OF NEW MEXICO ex rel. 5 CHILDREN, YOUTH & FAMILIES 6 DEPARTMENT, 7

Petitioner

- Appellee, 8

v. 9

GENEVA C., 10
Respondent

- Appellant, 11

and 12

THOMAS F., 13
Respondent, 14

and 15

JENNIFER C., 16

Intervenor, 17

IN THE MATTER OF ARTHUR F. 18 and ISRAEL F., 19

Children. 20

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 21 William E. Parnall, District Judge 22Children, Youth & Families Department 1 Mary McQueeney, Chief Children’s Court Attorney 2 Santa Fe, NM 3 Kelly P. O’Neill, Children’s Court Attorney 4 Albuquerque, NM 5
for Appellee 6

Law Offices of Nancy L. Simmons, P.C. 7 Nancy L. Simmons 8 Albuquerque, NM 9
for Appellant 10

Law Firm of Alexander D. Crecca, P.C. 11 Sara Seymour Crecca 12 Albuquerque, NM 13

Guardian Ad Litem 14OPINION 1

YOHALEM , Judge. 2

{1} Geneva C. (Mother), a qualified individual with an intellectual disability as 3
defined by the Americans with Disabilities Act (ADA), appeals the termination of 4
her parental rights to her two children (Children). Mother’s parental rights were 5
terminated pursuant to NM SA 1978, Section 32A

- 4

- 28(B)(2) (2005 , amended 6

2022 )
, of the New Mexico Abuse and Neglect Act
, NMSA 1978, §§ 32A

- 4

- 1 to

- 35 7
(1993, as amended through 2022)

. Mother raises three issues on appeal. She first 8
contends that the Children, Youth and Families Depa rtment (CYFD) failed to satisfy 9
the reasonable efforts requirement of Section 32A

- 4

- 28(B)(2) because CYFD’s 10
efforts failed to include reasonable accommodation for Mother’s disability as 11
required by the ADA. Mother next contends that CYFD failed to carry it s burden to 12
show by substantial
, clear and convincing evidence that
, with the assistance of 13
reasonable efforts by CYFD
, she was unlikely to be able to adequately parent 14
Children in the foreseeable future. Third, Mother challenges the refusal of the distric t 15
court to appoint a guardia n ad litem (GAL) to assist her. 16

{ 2 } We agree with Mother that the state law requirement that CYFD make 17
reasonable efforts to assist a parent incorporates the ADA requirement that the 18
services provided by CYFD reasonably accommod ate a parent’s disability. We 19
further hold that when the district court finds at the outset of an abuse and neglect 202 case that the parent is a qualified individual with a disability, as defined by the ADA, 1
and orders that specific accommodations be made, as the court did in this case, 2
CYFD must provide those accommodations. Because CYFD did not timely provide 3
the accommodations ordered by the district court at the dispositional hearing, seek 4

modification of the court’s order, or advise the district court of these failures, the 5
district court’s finding that CYFD provided reasonable accommodations for 6
Mother’s intellectual disability in compliance with the ADA and with Section 32A

7

4

- 28(B)(2) was not fully informed. We therefore reverse the termination of Mother ’s 8
parental rights on this basis and remand to the district court for reconsideration of its 9
decision with full knowledge of the facts of this case. 10

{ 3 } Additionally, because the question will likely arise again on remand, we 11
briefly address Mother’s argum ent that the district court abused its discretion and 12
denied Mother due process when it refused to appoint a GAL to assist her in 13
understanding the legal proceedings, understanding and complying with her 14
treatment plan, and making decisions in her own best interests. We hold that the 15
district court properly relied on the evidence in the record concerning Mother’s 16

needs and abilities and that the court neither abused its discretion nor denied Mother 17
due process when it found that appointment of a GAL was unn ecessary and instead 183 required CYFD to provide Mother the assistance of a social worker 1 skilled in 1
working with parents with disabilities. 2

BACKGROUND 3

{ 4 } Mother and Thomas F. ( Father ) have two children, A rthur and I srael

. A rthur 4
was three years old and I srael was one month old at the end of August 2018 when 5

Ch ildren were taken into custody. Pointing to what CYFD claimed was Mother’s 6
need for constant reminders to attend to the needs of Children, CYFD alleged that 7

Children were ne glected due to Mother’s intellectual disability. Father was 8
diagnosed with schizophrenia, which led to violent outbursts that prevented him 9
from adequately caring for Children, and CYFD alleged that Children were 10
neglected due to Father’s mental illness. 2 Following an adjudicatory hearing on 11
October 9, 2018, continuing on January 7, 2019, and concluding on March 5, 2019, 12
the district court entered an adjudication of neglect under Section 32A

- 4

- 2(G)(2)
, (4) 13
based on Mother’s intellectual disability, which t he court found interfered with her 14
ability to properly feed, clean, a nd care for Children. 15

1 The district court referred sometimes to a “case worker” and more often to a “social worker.” We use the term “social worker” throughout this opinion.
2 Mother and Father were both respondents in the proceedings below and both were found to have neglected Children. Father refused throughout the proceedings to engage in services to address his diagnosis of schizophrenia or to parti cipate in visits with Children. F ather has not appealed. We therefore focus on facts relevant to Mother’s appeal.4 { 5 } Mother’s disability and the reasonable modifications to policies, practices, or 1
procedures required to give Mother an equal opportunity to pa rticipate in her 2
treatment plan, consistent with the ADA
, were a focus of this case from the outset. 3
At the custody hearing on September 4, 2018, the first hearing required by the New 4
Mexico Abuse and Neglect Act, see § 32A

- 4

- 18(A) (requiring a custody hearing be 5
held within ten days of taking a child into CYFD custody), Mother’s counsel advised 6
the district court that Mother had special ne eds arising from her disability and 7
requested that Mother be provided necessary ADA accommodations. Counsel 8
requested that Mother be appointed her own social worker to work clo sely with her 9
and help her understand her treatment plan, transition to greater independence, and 10
successfully reunite with Children. Counsel noted that she hoped they could “get a 11
social worker on board quickly.” At the conclusion of the hearing, the cour t approved 12
the accommodations sought by Mother and allowed a relative to attend the upcoming 13
adjudicatory hearing to assist Mother. The hearing ended with CYFD assuring the 14

court that it was committed to providing Mother with a social worker. 15

{ 6 } At the ou tset of the adjudicatory hearing a month later, Mother’s counsel again 16
raised Mother’s need for additional assistance due to her disability and asked the 17
district court to appoint a GAL to assist Mother. Mother’s c ounsel told the court that 18

Mother “needs a lot of help and support and repetition” to make legal decisions. The 19
court assured Mother and her counsel that if parents were adjudicated, they would 205 get their own social worker “to help them work their treatment plan [ and ] get them 1
the services they need.” The court described the appointment of a GAL as 2
“superfluous” given that the court was requiring a social worker to work closely with 3
parents and took the request fo r a GAL under advisement. A few days after this 4
hearing, the distr ict court entered an order requiring the appointment of a F amily 5

Support S ervices (FSS) social worker from a nonprofit agency that provides social 6
workers skilled in working with individuals with developmental disabilities, noting 7

that a social worker was “necessary due to Mother’s cognitive difficulties.” 8

{ 7 } At the continuation of the adjudication on January 7, 2019, counsel for Mother 9
informed the district court that she had been unable to implement the district court’s 10
order because the FSS nonprofit i s not a court program. Mother’s counsel reported 11

that she told the nonprofit agency that Mother “desperately needs your services” but 12
was unable to get their agreement to provide services . Counsel reiterated that it was 13
important for Mother to “have someon e,” noting that “this client really needs it

. ” 14
The district court responded
, “I think they should be provided” and this “ is 15
something that can help someone with a disability.” The district court at this point 16

agre ed to appoint a GAL for Mother. 17

{ 8 } On March 5, 2019, a t the outset of the third and last day of the adjudicatory 18
hearing
, the district court rescinded its decision to appoint a GAL. Although the 19
court announced that, on further consideration, it would not appoint a GAL, the court 206 decided durin g the dispositional hearing later that day to require CYFD to provide a 1
social worker or to ensure one was provided by another agency. The court 2
specifically stated that because the FSS services apparently were not available, it 3

“want [ ed ] in the [dispositi onal] order” to be sure that if FSS workers were not 4
provided, that Mother and Father “ be given [ a social worker]

. . . to help them get 5
where they n e ed ed to be.” 6

{ 9 } During the discussion of the dispositional order and treatment plan, CYFD 7
told the court that Mother’s treatment plan was incomplete because CYFD was in 8
the process of obtaining a supp lementary evaluation of Mother. CYFD explained 9

that it needed detailed r ecommendations on how to work effectively with Mother 10
given her intellectual disability and that such recommendations had not been 11

included in her initial neuropsychological evaluation. CYFD, therefore, was seeking 12
to supplement Mother’s evaluation. CYFD t old the district court it was committed 13
to submitting a modified treatment plan to the court when it receiv ed the 14
supplemental evaluation. 15

{ 10 } At the conclusion of the hearing, the court noted it was adding to the 16
dispositional order the two treatment pla n provisions

— that CYFD provide Mother 17

with a social worker and that CYFD obtain a supplemental evaluation of Mother

— 18
discussed during the hearing

. CYFD made no objection to these additions. The 19

district court’s written combined adjudicatory and dispositional order required 207 CYFD to comply with the ADA, which directs CYFD “to make reasonable 1

modifications in policies, practices, or procedures,” when the modifications are 2

necessary to provide Mother an equal opportunity to participa te in her treatment 3
plan, “unless

. . . [ such ] modifications would fundamentally alter the nature of the 4
service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i) (2016) . The order notes 5
that the district court adopted the CYFD treatment plan “as clarifi ed in open court,” 6
without specifically describing the content of the two clarifying orders issued from 7

the bench. 8

{ 11 } In addition to the two modifications adopted in the court’s dispositional order
, 9
Mother’s treatment plan laid out the steps Mother was r equired to take in order to 10
demonstrate appropriate parenting and a stable home life. Under the plan, Mother 11
was required to (1) participate in individual therapy
, (2) participate in Children’s 12
nonemergency medical and dental appointments
, (3) submit to a random drug screen 13

at CYFD’s discretion
, (4) participate in family time at least two hours per week
, (5) 14
obtain safe and stable housing
, (6) remain free from intoxication, neglect, or abuse
, 15

and (7) participate in at least one reunification cla ss offered by CYFD. Later in the 16
case, when Father was not working his treatment plan
, and Mother was warned both 17
by CYFD and by the district court that she could not be reunited with Children if she 18

remained with Father
, s eparating from Father became an a dditional requirement of 198 her treatment plan. Drug addiction was found not to be a problem and, as a result, 1
drug screening was remove d from Mother’s treatment plan. 2

{ 12 } Mother initially struggled with the directives in her treatment plan. Mother 3

was repor ted by CYFD staff to be uncooperative. She was unwilling to attend 4
individual therapy
, and she reacted negatively to criticism of her parenting by CYFD 5
parenting coaches. Mother and Father were living with Mother’s mother 6
(Grandmother) in a shed outside th e house in filthy conditions. Mother resist ed 7

CYFD’s advice to move out of Grandmother’s home and to leave Father, who was 8
not working his treatment plan. Grandmother was described at the termination of 9
parental rights hearing as actively interfering with Mother’s ability to parent 10

Children and preventing Mother from contacting her service providers. Grandmother 11
frightened Mother with lies about supportive f amily living services being equivalent 12
to jail in order to discourage Mother from taking CYFD ’s advice to move away. 13
Grandmother was uncooperative and hostile with CYFD staff and service providers 14

as well. 15

{ 13 } Nevertheless, Grandmother remained Mother’s p rimary liaison with CYFD
, 16

and the district court relied on Grandmother to assist Mother to understand the court 17
proceedings and the requirements of her treatment plan. At the time CYFD fil ed the 18
motion to terminate Mother’s parental rights, no social worke r had been provided to 19

assist Mother with these tasks. Nor had CYFD completed the supplemental 209 evaluation the court had ordered it to complete. Annie King, a behavioral specialist 1
working through the Medicaid program, told the court that she had not yet completed 2

such an evaluation of Mother so she was unable to advise Mother’s providers on 3
how to work with her effectively. CYFD relied instead on the original, 4
preadjudication neuropsychological evaluation, which CYFD had conceded lacked 5

the de tailed direction on how to work effectively with Mother that CYFD needed to 6
reasonably accommodate Mother’s disability. 7

{ 14 } In February 2020, after filing a motion to terminate Mother’s parental rights 8
in December 2019, CYFD provided Mother the support o f her own social worker. 9

A t that time, CYFD assigned Rosemary Villagomez, a CYFD permanency planning 10
worker who was experienced in working with parents with intellectual disabilities, 11
to work with Mother and provide the additional, individualized support t he court had 12
ordered. Villagomez was able to establish a relationship with Mother and to perform 13
most, if not all, the functions the court intended a social worker would provide. 14
Villagomez testified that she was able to meet with Mother frequently and to take 15

time to talk with her. Mother gradually came to trust Villagomez’s advice. Over the 16
period of seven months between Villagomez’s appointment and the termination of 17
parental rights hearing, Mother began to engage in all of the treatment services 18

offered to her, including psychological counseling and other services she had refused 19
previously. Mother consistently attended psychotherapy every other week

— 2010 something that had been a problem before Mother began working with Villagomez. 1
She agreed to attend hands

- on parenting classes at Peanut Butter and Jelly, another 2
difficult area for Mother. These classes were never provided, because of a long 3
waiting list. With Villagomez’s support, Mother separated from Father, and, in 4
August 2020 moved out of Grandmother’s house into a family supportive living 5
home. Villagomez testified that Mother had improved more in the months she 6

worked with her than Mother had since Children were taken in to CYFD custody. 7
The district court’s findings noted this improvement. 8

{ 15 } Because of the COVID

- 19 pandemic, CYFD had not visited Mother in her 9
new home and was not able to report at the termination of parental rights hearing on 10
Mother’s progress performing tasks of daily living in that setting or on the feasibility 11
of placing Ch ildren with Mother in her new home. There was testimony describing 12
Mother’s family supportive living home as a place where Children could possibly 13

move in with Mother and where Mother could both care for them and continue to 14
receive any necessary support. At the time of the termination of parental rights 15
hearing, Mother was still struggling with parenting skills. Visits with Children, 16
which Mother attended without fail, had moved online in February 2020 . In June 17

2020 the in

- person visits resumed . In additio n to concern about Mother’s level of 18
parenting, CYFD also expressed concern about whether Mother would sustain her 19
independence from Father and Grandmother in the long term. CYFD reported that it 2011 would not consider Mother’s new home stable until Mother had lived there 1
successfully for at least six months. She had been there only two months at the time 2
of the termination of parental rights hearing on October 16, 2020. 3

{ 16 } At the conclusion of the termination of parental rights hearing, the district 4

court t erminated Mother’s parental rights to Children. The court found that (1) 5
CYFD had made reasonable efforts to assist Mother in adjusting the conditions and 6
causes that brought Children into custody, including providing reasonable 7

accommodations for her disa bilities; (2) Mother had not alleviated the conditions 8
and causes of neglect; and (3) the conditions and causes of neglect were unlikely to 9
change in the foreseeable future. The district court also found that Children needed 10
permanency and that, therefore, termination of parental rights was in their best 11
interests. This appeal followed. 12

DISCUSSION 13

I. CYFD Failed to Follow the Orders of the Court Directing CYFD to 14 Reasonably Accommodate Mother’s Disability 15

{ 17 } Mother contends that the efforts made by CYFD did not reasonably 16
accommodate her disability as required by the ADA and, therefore, were also not 17
the reasonable efforts required by state law to assist her in remedying the causes and 18
conditions that brought Children into custody. Mother focuses on CYFD’s f ailure to 19
provide the extra support and assistance of the social worker ordered by the court 20
until February 2020

— almost a year and a half into the case

— and after a motion to 2112 terminate her parental rights already had been filed. In addition, the evidence sh owed 1
that the other accommodation ordered by the district court

— a supplemental 2
psychological evaluation, which was needed to provide direction to CYFD and other 3
providers on how best to work with Mother

— w ould be completed only after the 4
termination of pare ntal rights hearing. 5

A. The ADA 6

{ 18 } We look first to the role of the ADA in the proceedings to terminate Mother’s 7
parental rights. The parties and the district court agreed at the outset of this case that 8

Mother was a “ qualified person with a disability” under the ADA, see 42 U.S.C. 9

§ 12131( 2), and that CYFD’s efforts would need to be modified to reasonably 10
accommodate Mother’s disability. See State ex rel. Child., Youth & Fams. Dep’t v. 11
Johnny S. , Sr. , 2009

- NMCA

- 032, ¶ 9, 145 N.M. 754, 204 P.3d 769 (providing that 12
once the ADA is found to ap ply, the ADA requires that CYFD’s efforts be modified 13
to reasonably accommodate the parent’s disability). 14

{ 19 } The ADA provides that “no qualified individual with a disability shall, by 15
reason of such disability, be excluded from participation in or be den ied the benefits 16
of the services, programs, or activities of a public entity, or be subjected to 17
discrimination by any such entity.” 42 U.S.C. § 12132. The federal regulations 18
implementing the ADA require that the services provided, both directly and throu gh 19
contract, be “as effective in affording equal opportunity to obtain the same result, to 2013 gain the same benefit, or to reach the same level of achievement as that provided to 1

others.” 28 C.F.R. § 35.130 (b)(1)(iii). Affording an equal opportunity to obtain the 2

same result or the same level of achievement does not mean that an individual with 3
a disability must be guaranteed the identical result, level of achievement
, or outcome 4
as a person without a disability; only that a person with a disability must be pr ovided 5
services that meet their special needs in a manner that gives them the same 6
opportunity given others. 3 Meeting these requirements may require the state agency 7
to “make reasonable modifications in policies, practices, or procedures when the 8
modifications are necessary to avoid discrimination on the basis of disability.” 28 9
C.F.R. § 35.130(b)(7)(i). Reasonab le modifications are required; the agency is not 10
required , however, to fundamentally alter its services. See i d. (“A public entity shall 11
make reasonable modifications in policies, practices, or procedures when the 12
modifications are necessary to avoid discr imination on the basis of disability, unless 13
the public entity can demonstrate that making the modifications would 14
fundamentally alter the nature of the service, program, or activity.”). 15

{ 20 } The modifications required must be individually designed to meet the 16
particular needs of the parent arising from their disability. See PGA Tour, Inc. v. 17

3 See U.S. Dep artment of Health & Human Serv ices & U.S. Dep artment of J ustice, Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and Courts under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act (Aug. 2015), https://www.ada.gov/doj_hhs_ta/child_welfare_ta.html.14 Martin , 532 U.S. 661, 688 (2001) (providing that “an individualized inquiry must be 1

made to determine w hether a specific modification for a particular person’s 2
disability would be reasonable under the circumstances as well as necessary for that 3
person, and yet at the same time not work a fundamental alteration”). In Johnny S.
, 4

Sr.
, this Court addressed the steps necessary to properly request reasonable 5
accommodation under the ADA and to preserve any violation of the ADA for appeal. 6

2009

- NMCA

- 032, ¶ 8. The Court held that “the parent bears the initial burden of 7
asserting that the parent is a qualified individ ual with a disability under [the ADA].” 8

Id. The parent is responsible as well for creating a factual and legal record to allow 9
meaningful appellate review under the ADA. “At a minimum,

. . . there must be a 10
request for relief citing the ADA backed by facts developed in the record.” Id. 11

B. Mother Properly Invoked the ADA and the District Court Ordered 12 Reasonable Accommodations 13

{ 21 } In this case, Mother’s counsel took all of the steps required to timely raise the 14

ADA issue for the district court’s consideration. Mother asserted she was a qualified 15
individual with a disability
, created a record establishing the nature of her disability
, 16
established her ability to benefit from services designed to help her reunite with 17

Children
, and established the ne cessity of assistance to avoid discrimination based 18
on disability. See id. The evidence showed that Mother’s intellectual disability meant 19
that Mother is slow to learn things and has a hard time with language, including 20
expressing herself and understanding what others tell her. Mother’s IQ was reported 2115 to be in the borderline range, indicating mild brain dysfunction

. H er executive 1
functioning, which was reported by the neuropsychological evaluation to be intact
, 2

meant that she is able to make decisions, exe rcise judgment, and anticipate the 3
consequences of her actions. 4

{ 22 } CYFD did not dispute in the district court
, and does not dispute on appeal
, 5
that Mother is a “qualified individual with a disability” under the ADA. The district 6
court agreed and conclud ed that CYFD was required to modify its programs and 7
services to give Mother an opportunity to remedy her neglect of Children and reunite 8

with them. 9

{ 23 } Mother also inform ed the district court and CYFD early in the case about the 10
accommodations that were most important to enable her to make progress in her 11
treatment plan. The ADA recognizes that the individual with a disability is often best 12
able to define the necessary accommodations and, in some contexts, puts the burde n 13
on that individual to request a particular accommodation. Cf. Trujillo v. N. Rio 14
Arriba Elec. Coop, Inc. , 2002

- NMSC

- 004, ¶ 16, 131 N.M. 607, 41 P.3d 333 (holding 15
that where an individual has a mental disability and “necessary reasonable 16

accommodations, a re not open, obvious, and apparent to the employer, .

. . the initial 17
burden rests primarily upon the employee, or his [or her] health

- care provider” 18
(internal quotation marks and citation omitted)). In the context of services from 19
CYFD for a parent with a disability, this burden is shared. The determination of 2016 “what accommodation may be reasonable

. . . call[s] for a



### . . . collaborative effort 1

between the parents, CYFD, and the district court.” Johnny S

. , Sr. , 2009

- NMCA

2

032, ¶ 9; see also In re S.K. , 2019 COA 36, ¶ 21 (providing that, in addition to a 3
parent disclosing to the department his or her mental impairment or other disability, 4
“the parent should also identify any modifications that he or she believes are 5
necessary to accommodate the disability”). 6

{ 24 } Mother’s primary request, made at the very outset of the case, was for her own 7
social worker to help her understand her treatment plan, engage effectively with the 8

services offered, and communicate with CYFD and the district court. Mother and 9

her couns el were aware that without assistance by someone with knowledge of how 10
to work with an individual with an intellectual disability and the time to engage with 11
Mother, Mother would be unable to understand the benefits being offered and unable 12
to engage fully in services. Counsel repeatedly informed the district court of the 13
necessity of this accommodation for Mother, beginning with the initial custody 14
hearing and continuing through the three days of adjudicatory hearings. The district 15
court agreed, acknowledg ing that this service was necessary and appropriate for 16
Mother to accommodate her intellectual disability and ordered, on the first day of 17
the adjudicatory hearing that a nonprofit agency, FSS, known by the court to work 18
specifically with individuals with disabilities like Mother’s
, provide that service. 19
When the district court was informed at the continuation of the adjudicatory hearing 2017 in early January 2019 that the court’s order was not enforceable, the court first 1
announced it would appoint a GAL
, but later withdrew that appointment

. The court 2
requir ed CYFD to provide Mother her own social worker, either directly or through 3
the private sector. The district court specifically requested that CYFD include this 4
requirement in the dispositional order. C YFD made no objection to that order and, 5
indeed, had earlier assured the court that it would provide such a service to Mother. 6

{ 25 } Mother also sought services that were individually tailored to her special 7
needs. CYFD acknowledged to the court at the disp ositional hearing that providing 8
accommodations tailored to Mother’s needs required professional advice about how 9

best to work with Mother. CYFD represented that it was in the process of obtaining 10
a supplemental evaluation of Mother in order to properly as sess how to provide 11
Mother with meaningful access to reunification services. This supplemental 12
evaluation, followed by a revised treatment plan, was ordered by the court. 13

C. CYFD Failed to Follow the District Court’s Orders for Reasonable 14 Accommodation 15

{ 2 6 } A review of the judicial review and permanency hearings shows no mention 16
by CYFD (or by any party or the court) of the two orders for accommodation of 17
Mother’s disability announced by the district court at disposition. The dispositional 18

order reflects t he court’s adoption of the case plan “as clarified in open court, ” but 19

does not include their substance. There is no evidence in the record of judicial review 20
and permanency hearings or in the termination of parental rights hearing that CYFD 2118 brought these orders or any evidence of CYFD effort to comply with the orders to 1
the court’s attention. At the termination of parental rights hearing, King told the 2

court that she had not yet completed a supplemental evaluation of Mother

. As for 3

the social worker, for reasons having nothing to do with the court’s order, 4 Mother 4
was provided an additional CYFD case worker with experience working with parents 5
with intellectual disabilities. Villagomez appears to have begun to provide the 6
personalized assistanc e the court had in mind when it entered its dispositional order 7
a year earlier. Given that Mother’s disability slowed her learning, the supplemental 8
evaluation had not been completed, and this service began only after the motion to 9
terminate Mother’s paren tal rights was filed, CYFD’s efforts were not sufficient to 10
reasonably accommodate Mother’s disability or to comply with the district court 11

order. 12

{ 27 } Although the district court took judicial notice of adjudicatory and 13
dispositional order in which the c ourt had ordered ADA accommodations for Mother 14
and adopted its two orders from the bench at the outset of the termination of parental 15
rights hearing, CYFD did not bring these orders or its failure to comply with them 16

to the court’s attention, either at the judicial review or permanency hearings or at the 17
termination of parental rights hearing. Moreover, CYFD does not claim on appeal to 18

4 A s CYFD’s reason for assigning Mother an additional caseworker , the district court found that t here was a disagreement between Mother’s CYFD case worker and a Medicaid worker, which upset Mother.19 have timely complied with these two orders or to have sought and obtained 1

modification of the orders from the district cour t. CYFD instead asserts the adequacy 2
of its initial preadjudication evaluation of Mother and claims that it provided the 3
services required by that evaluation, again without mention of the two 4
accommodations ordered by the court. CYFD also argues, in a sing le sentence, that 5
it was not required to provide Mother the services of a social worker because such a 6
requirement would amount to a wholesale change in its program, something not 7
required by the ADA. 5 8

{ 28 } New Mexico law is clear that CYFD must comply w ith the orders of the 9
district court. The court is charged with making decisions about the provision of 10
services and the progress of an abuse and neglect case, and CYFD is required to 11
report to the court on both its own efforts to comply with the court’s d ispositional 12

orders and court

- ordered case plan, as well as reporting on the parent’s progress. The 13
Abuse and Neglect Act provides that “[i]f a child is found to be neglected or abused, 14
in its dispositional judgment the court shall also order [CYFD] to imp lement and the 15
child’s parent, guardian or custodian to cooperate with any case plan approved by 16

the court.” Section 32A

- 4

- 22(C). Our Supreme Court has construed this statutory 17

5 Because this issue is addressed in a single sentence in CYFD’ s brief on appeal , without pointing us to any support in the record, we do not address this undeveloped argument.20 provision to require CYFD to comply with the court

- ordered case plan and with 1

d ispositional, permanency, and other orders entered by the district court. See State 2
ex rel. Child. Youth & Fams. Dep’t v. Maurice H. , 2014

- NMSC

- 034, ¶ 18, 335 P.3d 3
746. CYFD is also charged by statute with reporting accurately to the district court 4

on the status of the proceedings and on the facts affecting a parent’s progress. See 5

i d. 6

{ 29 } In Maurice H. , a father learned his daughter was in CYFD custody three 7
weeks before a scheduled termination of parental rights hearing and informed CYFD 8

that he wanted to reunite with and care for his daughter. Id. ¶¶ 17

- 18. CYFD refused 9
to evaluate the father or offer him any treatment services, despite an exi sting court 10
order incorporating a treatment plan for him. Id. ¶ 18. Our Supreme Court firmly 11
rejected CYFD’s assertion that, despite a court order incorporating a family 12
treatment plan for the father, which required an evaluation, “ it could have chosen to 13
evaluate [the f]ather” or, instead, to go ahead with the termination of parental rights 14
hearing, in its discretion. Id. ¶ 18. Concluding that a court order directing treatment 15
is binding on CYFD, the Court held that CYFD engaged in misconduct when it faile d 16

to tell the father that he had a court

- ordered treatment plan and when CYFD failed 17
to inform the district court, either prior to or at the termination of parental rights 18
hearing, that there was a permanency order in place requiring the agency to 19
implemen t the father’s treatment plan. Id. ¶¶ 22, 30. “ [ CYFD] ignored its obligation, 2021 and its arbitrary actions led the district court to doubt [the f]ather’s presence and 1
willingness to care for [the c]hild. The district court b ased its decision to terminate 2

. . . on a lack of information and full disclosure of the actual facts.” Id. ¶ 42. 3

{ 30 } While we do not suggest CYFD engaged in the kind of intentional misconduct 4

identified in Maurice H. , we conclude that a similar error occurred here. CYFD 5
failed to incorporate into Mother’s case plan the district court’s orders concerning 6
the accommodations it was required to implement and then failed as well to bring 7

these orders, and its failure to co mply with them, to the district court’s attention. 8
This Court has stated that a judgment terminating parental rights must be entered 9
“only with the utmost circumspection and caution” due to the fund amental nature of 10
those rights. State ex rel. Child., Yout h & Fams. Dep’t v. Stella P.
, 1999

- NMCA

11

100, ¶ 33, 127 N.M. 699, 986 P.2d 495. Because the district court was not presented 12
with the facts concerning CYFD’s lack of compliance with the reasonable 13
accommodations ordered by the court, “we believe that the di strict court should be 14
presented an opportunity to reconsider this case with full knowledge of the facts.” 15

See Maurice H. , 2014

- NMSC

- 034, ¶ 30. 16

{ 31 } We remand to the district court to reconsider its termination of Mother’s 17
parental rights. If the district court concludes that termination of Mother’s parental 18
rights is not warranted and that Mother is now stable in a family living situation 19
where she is able to parent Children, then the court will need to make the difficult 2022 decision whether circumstances no netheless exist, making the return of Children to 1
Mother’s custody inconsistent with Children’s interests. See State ex rel. Child., 2
Youth & Fams. Dep’t v. Lance K. , 2009

- NMCA

- 054, ¶ 41, 146 N.M. 286, 209 P.3d 3
778 (finding that “the district court is in th e best position to determine the present 4
circumstances of the children and [the parent] and to balance the emotional interests 5
of the children and [the parent’s] rights”). 6

II. The District Court Did Not Deny Mother Due Process or Abuse Its 7 Discretion in R efusing to Appoint a GAL 8

{ 32 } Mother argues that the district court denied her due process and abused its 9
discretion by refusing to appoint a GAL for her. Although we need not decide this 10
issue, given we have reversed and remanded for further proceedings on other 11
grounds , we address this issue because it is likely to arise again on remand. See State 12

v. Anderson , 2016

- NMCA

- 007, ¶ 20, 364 P.3d 306 (addressing additional issue s 13
likely to arise on remand, notwithstanding reversal on other grounds). 14

{ 33 } Mother’s counsel requested the appointment of a GAL to assist Mother in 15
understanding the proceedings and to make decisions in Mother’s best interests. 16

Counsel also argued that a GAL would assist CYFD personnel and the district court 17
in understanding the i mpact of Mother’s cognitive disability on her progress in 18
implementing her treatment plan. CYFD contends that the district court did not 19
abuse its discretion or violate Mother’s right to due process when it denied the 20

request . The district court instead ma de a series of accommodations for hearings, 2123 including allowing Grandmother and other family members to attend court with 1
Mother and, at the termination of parental rights hearing, allowing a care provider 2

to confer with Mother to clarify the proceedings. W e agree with CYFD that the 3
courtroom accommodations provided by the district court were appropriate, and that 4
Mother’s due process rights were not infringed by the court’s refusal to appoint a 5

GAL. 6

{ 34 } Parents have a procedural due process right to partic ipate meaningfully in a 7
hearing that may result in the termination of parental rights. State ex rel. Child., 8
Youth & Fams. Dep’t v. Maria C. , 2004

- NMCA

- 083, ¶ 17, 136 N.M. 53, 94 P.3d 9
796. This includes, at a minimum, “timely notice reasonably calculated t o inform 10
the person concerning the subject and issues involved in the proceeding; a reasonable 11
opportunity to refute or defend against a charge or accusation; a reasonable 12
opportunity to confront and cross

- examine adverse witnesses and present evidence 13

on the charge or accusation; representation by counsel, when such representation is 14
required by constitution or statute; and a hearing before an impartial 15

decision [] maker.” State ex rel. Child., Youth & Fams. Dep’t v. Kathleen D.C. , 2007

- 16

NMSC

- 018, ¶ 12, 141 N .M. 535, 157 P.3d 714 (internal quotation marks and citation 17
omitted). 18

{ 35 } In determining whether a parent’s procedural due process rights were violated, 19

our review is de novo. State ex rel. Child., Youth & Fams. Dep’t v. Jeremy N. , 2008

- 2024 NMCA

- 145, ¶ 11, 145 N.M. 198, 195 P.3d 365. The question before us is whether 1
the procedure f ollowed increased the risk of an erroneous deprivation of Mother’s 2

interests and “ whether an additional or substitute procedure would have eliminated 3

or reduced that risk. ” See i d. To succeed on a due process claim, “[p]arents need 4
only demonstrate that th ere is a reasonable likelihood that the outcome might have 5

been different.” State ex rel. Child., Youth & Fams. Dep’t v. Pamela R.D.G. , 2006

- 6

NMSC

- 019, ¶ 14, 139 N.M. 459, 134 P.3d 746 (internal quotation marks and citation 7
omitted). 8

{ 36 } Mother correctly notes that the failure to appoint a GAL to protect the interests 9
of a respondent parent may constitute a denial of due process in some circumstances. 10
Cf. State ex rel. Child., Youth & Fams. Dep’t v. Lilli L. , 1996

- NMCA

- 014, ¶ 14, 121 11

N.M. 376, 911 P.2d 884. Where, however, an adult parent is competent and 12
represented by counsel, the decision to appoint a GAL is discretionary. Cf. id. ¶ 13 13
(providing that “while it is a general practice under [Rule 1

- 017 NMRA] for a 14
guardian ad litem to be a ppointed to represent a minor who is a defendant in a civil 15
case, it is clear the court is not required to appoint a guardian ad litem where the 16
child is represented by counsel in such action”); Rule 1

- 017(D) (“The court shall 17
appoint a guardian ad litem f or an infant or incompetent person not otherwise 18
represented in an action or shall make any other order as it deems proper for the 19
protection of the infant or incompetent person.”). 2025 { 37 } In this case, the district court acted within its discretion in refu sing to appoint 1
a GAL because Mother was both competent and capable of making decisions with 2
the advice of counsel. The court reasoned that appointing a GAL would be 3
“superfluous” because it is the role of Mother’s attorney to provide legal advice to 4

Mothe r and to argue on Mother’s behalf to the court. Indeed, a lawyer is permitted 5
to seek the appointment of a GAL only “[ w ] hen the lawyer reasonably believes that 6

the client

. . . cannot adequately act in the client’s own interest.” Rule 16

- 114(B) 7

NMRA. Other wise, a lawyer must endeavor to maintain as normal a client

- lawyer 8
relationship as possible. Rule 16

- 114(A) (“When a client’s capacity to make 9
adequately considered decisions

. . . is diminished, whether because of minority, 10
mental impairment or for some o ther reason, the lawyer shall, as far as reasonably 11
possible, maintain a normal client

- lawyer relationship with the client.”). 12

{ 38 } Mother does not argue on appeal that a GAL was needed as a substitute 13

decision maker, acknowledging that Mother is competent to make her own 14

decisions. Instead, Mother claims that she needed someone “to assist her in 15
navigating the abuse and neglect legal process, including access to resources to 16
comply with the treatment plan.” Mother does not explain, however, why a GAL, 17

who is generally an attorney, would have provided specialized knowledge that her 18
attorney did not have or why the role of accessing services was not more 1926 appropriately played by a CYFD case worker or case manager, as the district court 1
suggested. 2

{ 39 } The district court accommodated Mother’s impaired communication skills by 3
ordering CYFD to provide a social worker to consult with and advise Mother, and 4
by permitting service providers and family members to attend court hearings, and by 5
taking multiple br eaks to allow Mother to get assistance in understanding the 6
proceedings from both these individuals and from her counsel. Putting aside CYFD’s 7
failure to timely follow the court’s order to provide Mother her own social worker, 8

there is no evidence in the r ecord indicating that these accommodations would have 9
been insufficient to provide the assistance Mother needed. The district court did not 10
abuse its discretion in allowing Mother’s family care provider to sit with her and 11
communicate with her during the t ermination of parental rights hearing, rather than 12
appointing a GAL. 13

{ 40 } We therefore agree with CYFD that refusing to appoint a GAL did not deprive 14
Mother of due process and that providing other accommodations in the courtroom 15
for Mother’s disability in stead of a GAL was not an abuse of the court’s discretion. 16

CONCLUSION 17

{ 41 } For the reasons listed above, we reverse the termination of Mother’s parental 18
rights and remand to the district court for reconsideration of its decision with full 1927 knowledge of the facts of this case and for any further proceedings consistent with 1
this opinion. 2

{ 42 } IT IS SO ORDERED. 3

_________________________________ 4 JANE B. YOHALEM , Judge 5

WE CONCUR: 6

_________________________________ 7 JENNIFER L. ATTREP , Judge 8

_________________________________ 9 SHAMMARA H. HENDERSON , Judge 10