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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-021

Filing Date: December 14, 2015

Docket No. 33,896

STATE OF NEW MEXICO ex rel.

CHILDREN, YOUTH AND FAMILIES 

DEPARTMENT,

Petitioner-Appellee,

v.

ALFONSO M.-E.,

Respondent-Appellant,

and

IN THE MATTER OF URIAH F.-M.,

Child.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

William E. Parnall, District Judge

Children, Youth & Families Department

Charles E. Neelley, Chief Children’s Court Attorney

Kelly P. O’Neill, Children’s Court Attorney

Albuquerque, NM

for Appellee

Law Offices of Nancy L. Simmons, P.C.

Nancy L. Simmons

Albuquerque, NM

for Appellant

Peter G. Tasso Law Firm, P.C.

Peter G. Tasso
2

Albuquerque, NM

Guardian Ad Litem

OPINION

WECHSLER, Judge.

{1} Father, Alfonso M.-E., appeals from the district court’s judgment terminating his

parental rights to Child, Uriah F.-M., under two statutory provisions of the Abuse and

Neglect Act (ANA), NMSA 1978, §§ 32A-4-1 to -34 (1993, as amended through 2015). The

court also terminated the rights of Child’s mother, Brandi S. (Mother), but she has not

appealed. Father challenges the district court’s termination pursuant to Section 32A-4-

28(B)(1) and argues that clear and convincing evidence did not support the district court’s

finding that he abandoned Child. Father also raises sufficiency of evidence claims in

appealing the district court’s termination on the basis of Section 32A-4-28(B)(2). In this

regard, Father contends that the district court erred in finding that (1) he neglected Child; (2)

the causes and conditions of neglect were unlikely to change in the foreseeable future; and

(3) the Children, Youth and Families Department (CYFD) made reasonable efforts to assist

Father in adjusting the conditions that rendered him unable to properly care for Child. Father

also contends that CYFD violated his due process rights by failing to provide him adequate

translation services and, finally, argues that he was denied effective assistance of counsel.

{2} We hold that our Supreme Court’s opinion in In re Grace H., 2014-NMSC-034, 335

P.3d 746 renders the district court’s termination of Father’s parental rights for abandonment

under Section 32A-4-28(B)(1) improper. We also hold that the record is not sufficient to

support, by clear and convincing evidence, that the causes and conditions of neglect were

unlikely to change in the foreseeable future or that CYFD made reasonable efforts to assist

Father in adjusting the conditions that rendered him unable to properly care for Child under

Section 32A-4-28(B)(2). Because we reverse the district court’s termination of Father’s

parental rights on these grounds, we do not reach Father’s due process and ineffective

assistance of counsel arguments.

BACKGROUND

{3} Child was born on August 20, 2012 to Father and Mother. On January 24, 2013,

CYFD took Child into custody after receiving an emergency referral alleging physical

neglect and a lack of adequate supervision of Child by Mother, who reportedly had been

arrested on outstanding warrants. CYFD also took Child’s half-brother, Isaac K., born April

11, 2005, into custody and placed the two with the same foster family. Father is not the

biological father of Child’s half-brother.

{4} On January 28, 2013, CYFD filed a neglect and abuse petition against Father and

Mother, alleging that Child was without proper parenting or parental supervision due to

Mother’s substance abuse issues, her inability to provide safe and stable housing, and her
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criminal lifestyle. As to Father, the petition alleged that he abandoned Child and had “failed

to protect [Child] from [M]other’s drug abuse, homelessness, criminal conduct and neglect.”

The petition further alleged that Father’s location was unknown. It was determined at the

initial custody hearing on February 6, 2013 that Father was incarcerated and was subject to

an immigration hold. Father had been incarcerated since December 2012 due to his arrest for

driving while under the influence of intoxicating liquor or drugs.

{5} At the adjudicatory and dispositional hearing held on March 8, 2013, Father

appeared with the aid of an interpreter and entered a plea of no contest to the allegations in

CYFD’s petition, acknowledging that Child was a “neglected” child pursuant to Section

32A-4-2(E)(2), and that Father had “failed to provide for [Child’s] basic necessities.” The

district court entered a stipulated judgment and disposition against Father on March 28,

2013. The treatment plan developed by CYFD for Father and adopted by the court indicated

that Father had “expressed a strong desire to maintain his bond with [Child].” The plan

specified that Father was required to complete substance abuse, mental health, psychosocial,

and domestic violence assessments and follow all recommendations made by those

assessments. The plan also mandated that Father “will provide random [urinalyses] as

determined by [CYFD].” Further, the treatment plan included the requirements that Father

maintain weekly contact with CYFD, obtain safe and stable housing, create a financial plan

to ensure Child’s basic needs are met, engage in parenting education, participate in family

time at CYFD’s discretion, and provide letters, photos, and other memorabilia for Child’s

life book. For CYFD’s part, the treatment plan required CYFD to “make appropriate

recommendations[,] . . . make referrals[,] and monitor [Father’s] progress.”

{6} Father spoke through an interpreter at the initial judicial review hearing on May 17,

2013 to inform the court that he was currently incarcerated and serving his sentence for his

DWI conviction and that he might face immigration detention and deportation to Mexico

following completion of his sentence. CYFD’s judicial review report, which the court

adopted by reference, indicated that Father had “done as much as possible considering his

current incarceration and [immigration] hold” but that Father was “also waiting to be

deported, and may not be able to be a consistent caretaker for [Child].” The report also noted

that Father had “engaged in [an addiction treatment program], but hasn’t been able to do any

further substance abuse programs due to his current incarceration and [immigration] hold.”

The report additionally stated that Father “has written letters to [his permanency planning

worker (PPW)] regarding [Child] and his [incarceration] status” and provided CYFD the

names of Father’s relatives for Child’s possible placement. The court ordered CYFD to

implement its permanency plan of reunification.

{7} In August 2013, Father was transferred from New Mexico to a federal holding

facility in El Paso, Texas for immigration processing. He was subsequently deported to

Mexico in September 2013. Father called his PPW, Frances Steckbauer, and left her a

voicemail after he arrived in Mexico. During this time, CYFD requested the Mexican

Consulate’s assistance in conducting a psychological evaluation of Father and a study of

Father’s sister’s home in Mexico where Father was living. Additionally, with the help of the
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Consulate, Steckbauer coordinated a telephone call with Father in October 2013 and told

Father to maintain monthly communication with CYFD.

{8} Shortly thereafter, on October 28, 2013, CYFD moved to terminate Father’s parental

rights to Child. CYFD asserted that Father, “[w]ithout justifiable cause, . . . ha[d] not

communicated with or provided support for [Child] in over 3 months” and “ha[d] abandoned

[Child].” Moreover, CYFD argued, Father was “in substantial non-compliance with his

treatment plan[.]” Among Father’s failures, CYFD stated that Father had not completed the

required assessments, provided proof to CYFD that he had obtained safe and stable housing,

provided random urinalyses, maintained weekly contact with CYFD, or discussed his history

with CYFD. CYFD also asserted that Father had not provided it with names of relatives for

possible placement with Child, participated in family time with Child, provided Child with

memorabilia for his life book, or created a financial plan to ensure Child’s needs would be

met.

{9} The following week, on November 4, 2013, the court held the initial permanency

planning hearing. Father was not present at the hearing but was represented by his attorney

who notified the court that Father had been deported. CYFD informed the court that CYFD

had stayed in contact with the Consulate, which provided CYFD an address and the phone

number for Father in Mexico as well as the names of some of Father’s relatives living in

Mexico. However, CYFD further represented that Father had made no attempts “to contact

[CYFD] at all [after his deportation], even though Ms. Steckbauer made sure [Father] had

all of [CYFD’s] contact information.” Although the court approved changing CYFD’s plan

from reunification to adoption, the court explicitly asked CYFD to “continue trying to open

a line of communication with [Father] to determine what, if anything, he wants to do to work

his plan.”

{10} In accordance with CYFD’s request through the Consulate, Mexican officials

conducted a study of Father’s sister’s home on November 5, 2013. Father, who was

employed as a day laborer, provided his financial information as part of the study. A

November 6, 2013 urinalysis administered in Mexico indicated that Father tested negative

for amphetamines, cocaine, and marijuana. By December 2013, Father had also completed

a psychological evaluation that recommended he engage in therapy sessions. In a letter to

the Mexican Consulate dated December 16, 2013, a government official from Mexico’s

social service agency in Father’s municipality explained that Father would be offered six

sessions of therapy in accordance with the psychological evaluation recommendation and

that the first session was scheduled for December 18, 2013. The official additionally

referenced the Consulate’s request for Father to attend parenting classes but indicated that

Father’s municipality did “not have an institution capable of offering them,” and therefore

proposed that “[parenting] classes be substituted by psychological therapy where facts based

on paternity will be taken into consideration.”

{11} Father’s termination of parental rights trial began on January 10, 2014. Father

appeared telephonically and was assisted by an interpreter. In its opening argument, CYFD
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argued that Father had failed to comply with his treatment plan by not completing “even the

minimal things he could have done while he was incarcerated” in New Mexico and that

Father had “only done the minimal that he can since he left the United States.” CYFD

pointed out that Father had not completed a mental health assessment “until just recently”

and that he had not completed substance abuse assessment “until very recently.” CYFD also

argued that Father “may have done one [urinalysis] through the Mexican Consulate” and

“only recently acquired safe and stable housing.” CYFD also cited Father’s failure to

maintain weekly contact with CYFD, provide support for Child, give any gifts to Child, and

communicate with Child as reasons supporting termination. CYFD also told the court that

Child has no bond with Father and has not heard Father’s voice or seen Father since the

inception of the case.

{12} Steckbauer testified that she developed Father’s treatment plan based on the

circumstances of his incarceration as well as his disclosures about his DWI and substance

abuse history. Steckbauer explained that she visited Father monthly during his incarceration

in New Mexico until August 2013 and that CYFD had mailed Father a copy of his treatment

plan after he was deported. She testified that since Father’s deportation, she had two

telephone calls with Father that were facilitated by the Mexican Consulate to assess Father’s

situation. Steckbauer stated that Father completed the home study and psychological

evaluation that CYFD requested through the Consulate “but [Father] hasn’t completed any

follow-up services.” She also stated that Father submitted a urinalysis but had “not

specifically completed a substance abuse assessment” and that she had not received proof

of Father’s completion of an addiction treatment program he engaged in during his

incarceration in the United States. Further, Steckbauer said that Father had not completed

parenting education and that he informed her during their last telephone call in December

2013 that he was “still waiting to find out when he was going to start parenting classes and

therapy.” Although Father had provided his financial information as part of the home study

in Mexico, Steckbauer stated that he had not sent Child any financial support. Father was

living with his mother and sister in Mexico, Steckbauer additionally testified, but he had not

provided CYFD their names as potential placements for Child while Father was incarcerated

in the United States. In summary, she stated that “apart from no longer being in custody”

Father had made no progress in eliminating causes and conditions of Child’s neglect.

{13} In Steckbauer’s opinion, CYFD would have no justification to split up Child’s

current placement with his foster family, where Child had lived with his half-brother since

the inception of the case. She stated that Child was very young when he entered the home,

that “this is the home that [Child] knows[,]” and that “he’s very comfortable.” Steckbauer

also testified that Child also had specific needs related to his speech development and was

receiving early intervention services. During her few phone calls with Father, Steckbauer

“worked to keep him informed of [Child’s] well-being,” but she stated that Father has not

had any “hands-on experience” in addressing Child’s needs. Steckbauer testified that Father

told her that he cares for Child but that Father stated that he has not had much contact with

Child because of Father’s incarceration. She said that Father had not participated in family

time with Child or had any communication with Child since CYFD took Child into custody.
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Steckbauer stated that Father wrote to Child during Father’s incarceration but that he had not

sent any letters to Child since Father was deported. Steckbauer further testified that she had

explored the possibility of Father’s relatives in the United States serving as possible

placements for Child, but they were either non-responsive to her requests or their legal status

precluded their eligibility. According to Steckbauer, it would not be safe to return Child to

Father because there had been no “direct communication” between Father and Child and that

“it would be harmful to [Child] to place him suddenly with someone who he has no

relationship with.”

{14} During cross-examination, Steckbauer testified that the Consulate had sent her an

email with Father’s home study and urinalysis results, but she admitted that she had not seen

Father’s psychological evaluation. She did not recall the date of the evaluation and did not

have a copy of the evaluation in her file. Steckbauer also testified that she had not seen the

December 18, 2013 letter regarding Father’s therapy sessions. She stated that the evaluation

and letter may be included in a packet of documents that she recently received from the

Consulate, but she had not yet reviewed the documents. Nevertheless, Steckbauer testified,

she knew the outcome of the evaluation because in December 2013 she had “a thorough

conversation” with Father and the Consulate’s protective services staff about the results.

However, she indicated that her discussion with the Consulate’s staff did not cover the

December 18, 2013 letter. Father’s counsel attempted to introduce Father’s psychological

evaluation and the December 16, 2013 letter regarding Father’s therapy sessions, but because

the documents had not been translated from Spanish into English, CYFD stipulated to a

continuance of the trial.

{15} Before trial resumed in February 2014, CYFD filed an amendment to its motion for

termination, incorporating the grounds alleged in its original motion and asserting the

additional ground that Father had abandoned Child. The court also held a subsequent

permanency hearing on January 27, 2014. Father appeared telephonically and was assisted

by an interpreter. CYFD informed the court that its amendment to its motion for termination

was based on information CYFD received at the trial, specifically that Father had not

contacted Child or provided support for Child. CYFD also argued that the psychological

evaluation Father received in Mexico recommended that he receive various types of

counseling but that Father had done nothing to obtain the services. In its permanency hearing

order, the court found that Father “made some efforts to comply with and cooperate in the

treatment plan” but that Father had not made progress toward alleviating the causes that

precipitated CYFD’s need to take custody of Child. The court adopted CYFD’s latest

treatment plan and also granted CYFD’s amendment to its termination motion.

{16} Steckbauer’s testimony resumed on the second and final day of the termination trial,

February 13, 2014. Her testimony revealed that her final conversation with Father occurred

in early December 2013, prior to her receipt of Father’s psychological evaluation and before

Father began his therapy sessions. She testified that she talked with Father about scheduling

the therapy sessions recommended by the psychological evaluation and that she asked Father

to address parenting issues and his substance abuse history during the sessions. Steckbauer
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also informed Father that she had received the home study, but she did not discuss the results

of the study with Father or notify him of any additional information that CYFD needed. At

that time, Father inquired about Child, expressed that he wanted Child with him in Mexico,

and asked Steckbauer for a picture of Child, which Steckbauer stated she did not send to

Father.

{17} Father’s counsel introduced a January 30, 2014 letter from the Mexican psychologist

who had conducted Father’s psychological evaluation. The letter, which Steckbauer said she

had received from the Consulate, stated that Father “completed the psychological therapy

[sessions] on January 23, of this year, showing favorable control of emotions[.] Likewise,

regarding the topic of [parenting] covered in therapy [sessions], [Father] is capable of being

in charge of [Child].” Given that parenting classes were not available in Father’s village in

Mexico, Steckbauer testified that she believed that Father complied with the alternative

recommendation to address parenting issues in his therapy sessions and that Father

“addressed parenting to the best of his ability” in accordance with his treatment plan.

Nevertheless, Steckbauer testified that she did not agree with the psychologist’s conclusion

about Father’s parenting capability. For example, she stated that the letter did not alleviate

her concerns about Father’s “impulsivity” issues that were identified as part of the

psychologist’s initial diagnosis. However, Steckbauer testified that she never asked Father

to address impulsivity issues in his therapy sessions and that she had not communicated with

Father since their December 2013 conversation. Steckbauer stated that she was unable to set

up an appointment to speak with Father in January 2014 “because of [her] caseload.”

{18} During redirect examination, CYFD elicited testimony from Steckbauer that was

critical of the home study and psychological evaluation requested through the Consulate.

With regard to the home study, Steckbauer testified that the study did nothing to explore

Father’s possible criminal history or whether there had been abuse or neglect allegations

against Father in Mexico. She also said that she had no knowledge of how long it took

Mexican investigators to complete the home study, whether investigators had interviewed

members of Father’s family outside of the home, or whether investigators had explored

“medical issues” of anyone in Father’s family. Turning to Father’s psychological evaluation,

Steckbauer said that she had never seen a psychological evaluation “as short as [Father’s].”

She testified that out of the “innumerable” psychological evaluations she had reviewed as

a social worker, none of them had lacked “diagnosis one through four diagnoses” or a

“global assessment of functioning.” Father’s evaluation failed to include these assessments

and, in her experience as a social worker, she had never seen someone pass domestic

violence, parenting education, and substance abuse areas with six sessions of therapy. She

also testified that the urinalysis provided by Father did not satisfy her need to know whether

Father was using illegal substances or alcohol.

{19} At the conclusion of testimony, the court terminated Father’s parental rights to Child.

In its judgment, the court found that there was clear and convincing evidence that (1) Father

abandoned Child, (2) Father had not alleviated the conditions and causes of neglect, (3) the

conditions and causes of neglect were unlikely to change in the foreseeable future, and (4)
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CYFD made reasonable efforts to assist Father in adjusting those conditions. The court

further found that termination “would promote the physical, mental, and emotional welfare

and needs of [Child].” This appeal followed.

TERMINATION FOR ABANDONMENT UNDER SECTION 32A-4-28(B)(1)

{20} As an initial matter, we address the district court’s termination of Father’s parental

rights on grounds of abandonment under Section 32A-4-28(B)(1). Father advances a

sufficiency of evidence claim to attack the district court’s judgment regarding his

abandonment of Child. However, our Supreme Court’s opinion in In re Grace H. is

controlling legal authority that dictates our analysis of this issue on appeal.

{21} The ANA’s definition of “abandonment” encompasses “instances when the parent,

without justifiable cause . . . left the child with others, including the other parent or an

agency, without provision for support and without communication for a period of . . . three

months if the child was under six years of age.” Section 32A-4-2(A)(2)(a). Section 32A-4-

28(B)(1) imposes the mandatory requirement that a court terminate parental rights if “there

has been an abandonment of the child by his parents[.]” CYFD relied heavily on Father’s

failure to send gifts, support, or letters to Child, except for one letter in April 2013, as

evidence in support of termination on grounds of abandonment. See In re Adoption of Doe,

1976-NMCA-084, ¶ 73, 89 N.M. 606, 555 P.2d 906 (“The typical kinds of conduct which

constitute abandonment are the withholding of parental presence, love, care, filial affection

and support and maintenance.” (internal quotation marks and citation omitted)). In its

findings of fact supporting termination, the district court specified that Father “has had no

contact and provided no support for [Child] for a period of at least three months prior to the

commencement of the trial in this case . . . [Father] did not provide any justification for

failing to contact or provide support for [Child].”

{22} In In re Grace H., our Supreme Court curtailed the statutory requirement that a court

“shall terminate parental rights” under Section 32A-4-28(B)(1) if a child has been

abandoned. The intent of the Legislature, our Supreme Court explained, is that Section 32A4-28(B)(1) is “to be used when there is no parent present with whom [CYFD] could work

towards reunification prior to termination.” In re Grace H., 2014-NMSC-034, ¶ 41. The

Court therefore held that Section 32A-4-28(B)(1) applies “where a parent is absent prior to

termination.” In re Grace H., 2014-NMSC-034, ¶ 43. Conversely, the Court held that

Section 32A-4-28(B)(2) “is to be used where a parent is present and expresses a legitimate

desire to take responsibility for a child prior to termination.” In re Grace H., 2014-NMSC034, ¶ 43. Section 32A-4-28(B)(2) imposes a separate statutory trigger for the termination

of parental rights when abandonment of a child has occurred. See State ex rel. Children,

Youth & Families Dep’t v. Christopher B., 2014-NMCA-016, ¶ 9, 316 P.3d 918 (“Abuse or

neglect and abandonment are separate and independent grounds for the termination of

parental rights, and they have a distinct set of statutorily created requirements.”). That

section requires termination of parental rights when a “court finds that the conditions and

causes of the neglect and abuse are unlikely to change in the foreseeable future despite
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reasonable efforts by [CYFD] or other appropriate agency to assist the parent in adjusting

the conditions that render the parent unable to properly care for the child.” Section 32A-4-

28(B)(2); see § 32A-4-2(E)(1) (defining a “neglected child” as a child “who has been

abandoned by the child’s parent, guardian or custodian”).

{23} In this case, the motions CYFD filed with the district court and the district court’s

judgment failed to identify which statutory mechanism was used to terminate Father’s

parental rights on the basis of abandonment. Our review of the record nonetheless reveals

that CYFD proceeded under a theory of abandonment pursuant to Section 32A-4-28(B)(1)

in moving to terminate Father’s parental rights. In its closing argument, CYFD specifically

stated that “the abandonment statute is mandatory” and requires the court to terminate

parental rights if a parent has abandoned his or her child. Moreover, at the conclusion of

trial, the district court found that Child was abandoned as defined under Section 32A-4-

2(A)(2)(a) and ultimately determined that Section 32A-4-28 required the court to terminate

Father’s parental rights. Therefore, in view of In re Grace H., the district court’s use of

Section 32A-4-28(B)(1) to terminate Father’s parental rights on the basis of abandonment

was improper. The record clearly supports that Father was present prior to the district court’s

termination and that Father expressed a legitimate desire to take responsibility for Child. See

State ex rel. Children, Youth & Families Dep’t v. Melvin C., 2015-NMCA-067, ¶ 23, 350

P.3d 1251 (interpreting In re Grace H.’s use of “legitimate desire” as “referenc[ing] a parent

who is present and willing to participate, even if they do so late in the game, so long as they

do so prior to termination” (internal quotation marks and citation omitted)).

{24} It is important to note that the district court did not terminate Father’s rights based

on presumptive abandonment. Accordingly, our holding does not reach the question of

whether presumptive abandonment was an appropriate basis for termination under the

specific circumstances of this case. See, e.g., Section 32A-4-28(B)(3) (providing that a court

shall terminate parental rights if certain conditions exist that create a presumption of

abandonment that has not been rebutted); see also In re Grace H., 2014-NMSC-034, ¶¶ 36,

38 (stating that presumptive abandonment is distinct from abandonment under Section 32A4-28(B)(1) and Section 32A-4-28(B)(2) and that presumptive abandonment was not

applicable to the analysis of the case).

EVIDENCE SUPPORTING THAT THE CAUSES AND CONDITIONS OF

NEGLECT WERE UNLIKELY TO CHANGE IN THE FORESEEABLE FUTURE

UNDER SECTION 32A-4-28(B)(2)

{25} Father also challenges the sufficiency of the evidence underlying the district court’s

judgment terminating his parental rights to Child under Section 32A-4-28(B)(2), specifically

arguing that clear and convincing evidence did not exist to prove that (1) Father neglected

Child, (2) the causes and conditions of neglect were unlikely to change in the foreseeable

future, and (3) CYFD made reasonable efforts to assist Father in adjusting the conditions that

rendered him unable to properly care for Child.
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{26} “Terminating parental rights implicates rights of fundamental importance.” State ex

rel. Children, Youth & Families Dep’t v. Hector C., 2008-NMCA-079, ¶ 11, 144 N.M. 222,

185 P.3d 1072. Accordingly, clear and convincing evidence is the standard of proof for

termination of parental rights cases. Section 32A-4-29(I); State ex rel. Children, Youth &

Families Dep’t v. Lance K., 2009-NMCA-054, ¶ 16, 146 N.M. 286, 209 P.3d 778. To meet

the clear and convincing evidence standard, the evidence “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.” In re Adoption of Doe, 1982-

NMCA-094, ¶ 31, 98 N.M. 340, 648 P.2d 798 (internal quotation marks and citation

omitted). In order to analyze Father’s claims of evidentiary sufficiency, we must determine

whether the district court’s decision is supported by substantial evidence of a clear and

convincing nature. State ex rel. Children, Youth & Families Dep’t v. Patricia H., 2002-

NMCA-061, ¶ 22, 132 N.M. 299, 47 P.3d 859. “Substantial evidence is relevant evidence

that a reasonable mind would accept as adequate to support a conclusion.” State v. Laguna,

1999-NMCA-152, ¶ 7, 128 N.M. 345, 992 P.2d 896. On appeal, this Court will “not reweigh

the evidence or substitute our judgment for that of the trial court on factual matters or on

matters of credibility.” State ex rel. Children, Youth & Families Dep’t v. William M., 2007-

NMCA-055, ¶ 59, 141 N.M. 765, 161 P.3d 262. “We will uphold the district court’s

judgment if, viewing the evidence in the light most favorable to the judgment, a fact finder

could properly determine that the clear and convincing standard was met.” Hector C., 2008-

NMCA-079, ¶ 11 (internal quotation marks and citation omitted).

{27} The ANA requires that CYFD carry the clear and convincing evidentiary burden of

proof in termination of parental rights cases. Under Section 32A-4-28(B)(2), CYFD must

establish that a child has been neglected or abused as contemplated by the ANA. Moreover,

CYFD must show “that the conditions and causes of the neglect and abuse are unlikely to

change in the foreseeable future despite reasonable efforts by [CYFD] or other appropriate

agency to assist the parent in adjusting the conditions that render the parent unable to

properly care for the child.” Section 32A-4-28(B)(2). CYFD must also demonstrate that

termination serves “the physical, mental and emotional welfare and needs of the child,

including the likelihood of the child being adopted if parental rights are terminated.” Section

32A-4-28(A); see Patricia H., 2002-NMCA-061, ¶ 21.

A. Finding of Neglect

{28} Father first contends that there was not clear and convincing evidence to support the

district court’s finding that he neglected Child because Father’s plea and the court’s

adjudication under Section 32A-4-2(E)(2) were based solely on his incarceration status.

Father argues that his subsequent release from incarceration in the United States ameliorated

the basis for neglect. We disagree.

{29} Our standard of review for the district court’s adjudication of neglect “is a narrow

one.” In re Termination of Parental Rights of Eventyr J., 1995-NMCA-087, ¶ 3, 120 N.M.

463, 902 P.2d 1066. Father suggests that evidence that arose after the district court’s
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adjudication of neglect should nullify the court’s finding, but our review is restricted “to a

determination of whether the district court could have found [neglect] based upon the

evidence before it.” State ex rel. Children, Youth & Families Dep’t v. Shawna C., 2005-

NMCA-066, ¶ 7, 137 N.M. 687, 114 P.3d 367. We therefore reject Father’s argument that

his release from jail after the district court’s adjudication of neglect is a dispositive legal

ground on which we may reverse the court’s finding.

{30} The district court adjudicated Child as neglected by Father pursuant to Section 32A4-2(E)(2). That section provides that a “neglected child” is 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 . .

. or the failure or refusal of the parent . . . when able to do so, to provide them[.]” Id. Father

pleaded no contest to the neglect allegations, and the district court accepted Father’s plea

after inquiring as to the factual basis for Father’s admission. See Rule 10-342(D) NMRA

(“The court shall not enter judgment upon an admission, including the entry of a no contest

plea . . . without making such inquiry as shall satisfy the court that there is a factual basis for

the admission[.]”). The court found that Father had “failed to provide for [Child’s] basic

necessities[,]” and the court adopted CYFD’s position that Father was “unable to care for

[Child] in a safe and stable environment due to his incarceration.”

{31} It is true that Father’s incarceration status alone is not sufficient for the district court

to find that Father neglected Child. See Shawna C., 2005-NMCA-066, ¶ 30 (concluding that

the ANA “does not permit a court to find abuse or neglect based solely on a parent’s

[incarceration] status”). However, despite Father’s incarceration at the time of the district

court’s adjudication, he nevertheless had a continuing legal obligation to provide proper care

for Child. “When a parent is incarcerated and unable to fulfill ordinary parental duties, the

court should consider whether the parent has pursued other opportunities and avenues that

could be available in order to carry out such duties to the best of his or her ability.” Hector

C., 2008-NMCA-079, ¶ 23. Although the record of the proceedings below indicates that

Father’s inability to care for Child arose from his incarceration, Father did not provide

financial support for Child or make other arrangements for Child’s care or placement while

Father was incarcerated in the United States. Based on this evidence, substantial evidence

supported the district court’s finding that Father neglected Child.

B. Causes and Conditions of Neglect

{32} Father next argues that clear and convincing evidence did not support the district

court’s finding that the causes and conditions of Child’s neglect were unlikely to change in

the foreseeable future. Father argues that (1) he promptly cooperated with his treatment plan

requirements after his deportation, (2) the court improperly relied on evidence of his past

history to support the termination of his parental rights, (3) CYFD’s assertions regarding his

mental health diagnosis were speculative and failed to comport with the court’s original

finding of neglect, and (4) the district court’s reliance on CYFD’s alleged deficiencies of the

home study was likewise improper.
12

{33} In reviewing Father’s sufficiency claim, we are mindful that a treatment plan under

the ANA “identifies, addresses, and attempts to correct those circumstances and conditions

which rendered the child abused or neglected.” State ex rel. Children, Youth & Families

Dep’t v. Michelle B., 2001-NMCA-071, ¶ 38, 130 N.M. 781, 32 P.3d 790. At trial,

Steckbauer testified that she based her development of Father’s treatment plan on his

disclosures about “his DWI history [and] substance abuse history” and the “restrictions of

[Father’s] criminal situation[.]” Related to these causes and conditions, the evidence must

be substantial to meet the statutory condition that Father was unlikely to alleviate them in

the foreseeable future. Patricia H., 2002-NMCA-061, ¶ 22. We have construed “foreseeable

future” to “refer to corrective change within a reasonably definite time or within the near

future.” Id. ¶ 34 (internal quotation marks and citation omitted).

{34} CYFD initiated termination proceedings approximately one month after Father was

deported. At that time, Child had been in CYFD’s custody for nine months. Steckbauer

testified that she never received proof of Father’s completion of the addiction treatment

program during his incarceration in the United States, but the evidence presented to the

district court at trial focused primarily on Father’s compliance with his treatment plan

following his deportation. After Father’s deportation, CYFD requested the assistance of the

Mexican Consulate in conducting a psychological evaluation and home study for Father. The

evidence clearly established that Father voluntarily and timely participated in a

psychological evaluation arranged by the Consulate and completed six sessions of individual

therapy that were recommended by the evaluation. Father also obtained employment,

participated in a study of the home where he lived with his mother and sister, disclosed his

financial information as part of that study, and submitted to a urinalysis that screened for

illegal drugs.

1. Evidence Supporting Father’s Alcohol and Substance Use

{35} The district court did not enter a finding that CYFD presented evidence that Father’s

alcohol and substance abuse persisted as a continuing cause and condition of neglect. Father

therefore challenges the district court’s termination decision by arguing that the district court

erred in relying on stale and speculative evidence that was based on generalizations of

Father’s past conduct. In response, CYFD points to the evidence of Father’s previous DWI

conviction, which CYFD argues resulted from Father’s “history of substance abuse” and

cites Father’s submission of “only one drug screen” that did not test for alcohol.

{36} With respect to the drug screen, Steckbauer testified that the urinalysis submitted by

Father on November 6, 2013 did not satisfy her need to know whether Father was using

alcohol or other substances. The court found that Father “only provided one [urinalysis]

during the life of the case, but did not provide a series of tests to determine whether alcohol

and substance abuse issues were being addressed or alleviated. The [urinalysis] provided did

not test for alcohol, one of [Father’s] issues.” However, there is no evidence that CYFD

notified the Consulate or Father that the initial urinalysis was deficient because it failed to

test for alcohol. There is likewise no evidence that CYFD made any requests through the
13

Consulate or to Father for additional urinalyses that would have established whether Father

had failed to alleviate his alcohol problem, despite the treatment plan’s requirement that

Father “will provide random [urinalyses] as determined by [CYFD].” (Emphasis added).

CYFD also failed to present any evidence suggesting that Father was directed by CYFD to

submit urinalyses that screened for alcohol but was noncompliant or unwilling to do so.

Steckbauer’s final conversation with Father occurred in early December 2013, and Father

testified that Steckbauer did not discuss the subject of drug tests with him at all.

{37} In the absence of evidence showing any efforts on the part of CYFD to obtain

additional urinalyses, we do not believe that Father’s submission of one inconclusive drug

screen constituted evidence that he had failed to alleviate the causes and conditions of

neglect or was unlikely to do so in the foreseeable future. Cf. State ex rel. Children, Youth

& Families Dep’t v. Amanda H., 2007-NMCA-029, ¶ 22, 141 N.M. 299, 154 P.3d 674

(holding that an initial positive toxicology test was inconclusive and therefore did not

constitute clear and convincing evidence that established the child’s neglect). The district

court incorrectly applied the burden of proof that is required in a termination of parental

rights case by holding the informational deficit regarding Father’s alcohol and substance use

against him. Notably, in announcing its findings at the conclusion of trial, the court stated

that Father “ha[d] not presented evidence that supports the conclusion” that he had alleviated

the causes and conditions of neglect. The court specified that there was evidence that Father

“has an alcohol problem” but that there was no evidence regarding “whether he’s still

drinking.” CYFD is not entitled to transfer its evidentiary burden under the ANA as a result

of Father’s deportation, particularly when Father made efforts to comply with a treatment

plan that imposes responsibilities on CYFD to assess the continuing existence of the causes

and conditions of neglect. Such a result would contravene the statutory duty of CYFD under

the ANA and undermine the fundamental nature of parental rights. See State ex rel. Children,

Youth & Families Dep’t v. Marsalee P., 2013-NMCA-062, ¶ 25, 302 P.3d 761 (“The district

court has an affirmative obligation to make sure that the requirements of the [ANA] are

followed prior to the termination of something as fundamental as the parental rights to a

child.”). The district court therefore erred by relying on the lack of evidence regarding

Father’s alcohol and substance abuse as if it were, in actuality, evidence supporting its

finding that Father was unlikely to alleviate his alcohol and substance abuse problem in the

foreseeable future. See In re E.N.C., 384 S.W.3d 796, 808 (Tex. 2012) (“A lack of evidence

does not constitute clear and convincing evidence.”).

{38} As additional evidence of the persistence of Father’s “history of substance abuse” as

a cause and condition of neglect, CYFD relies on Steckbauer’s testimony that six therapy

sessions were inadequate to address that history. CYFD also argues that Father was not

engaged in substance abuse treatment or “relapse prevention” at the time that his parental

rights were terminated. At trial, Steckbauer testified that she spoke with Father in early

December 2013 about “having the therapy sessions set up” that were recommended by the

psychological evaluation and that she discussed with Father “when [the sessions] would be

beginning.” She told Father that he should address “his substance abuse history” in his

therapy sessions as part of his treatment plan requirements. The evidence showed that
14

Father’s schedule of therapy sessions began on December 18, 2013 and that he completed

the sessions on January 23, 2014.

{39} Although Father’s treatment plan required CYFD to “make appropriate

recommendations[,] . . . make appropriate referrals[,] and monitor [Father’s] progress[,]”

Steckbauer had no further contact with Father after their telephone conversation in early

December 2013. Steckbauer requested documentation from the Consulate that described

what issues were specifically being addressed in Father’s therapy sessions, but she did not

contact Father after she received the documents from the Consulate or after she received

confirmation of Father’s completion of the recommended therapy sessions. There is also no

evidence that Steckbauer or anyone else from CYFD communicated with the Consulate after

Father completed the sessions. Instead, CYFD elicited testimony from Steckbauer in which

she stated generally that, based on her experience, she had never seen a person successfully

deal with parenting, domestic violence, and substance abuse issues in six sessions of therapy.

The court found that Father had participated in six individual therapy sessions recommended

by the psychological evaluation but that the sessions “did not satisfy [CYFD’s] requirement

for . . . substance abuse[.]” The court also found that Father “did not participate in a . . .

substance abuse assessment[,]” even though CYFD did not present evidence that it requested

an assessment through the Consulate or otherwise referred Father for an assessment.

{40} We agree with Father that CYFD relied on vague references to Father’s past to draw

speculative inferences about the current and future existence of the causes and conditions

of neglect. See Baca v. Bueno Foods, 1988-NMCA-112, ¶ 15, 108 N.M. 98, 766 P.2d 1332

(“Evidence from which a proposition can be derived only by speculation among equally

plausible alternatives is not substantial evidence of the proposition.”). Other than Father’s

incarceration for DWI and Steckbauer’s testimony that Father disclosed a history of

substance abuse, we could not identify any explanations or details in the record regarding

the extent or severity of Father’s history of alcohol or substance abuse, such as past criminal

convictions or the specific types of substances involved. The record also does not explain

whether the basis for Father’s DWI conviction was for the use of alcohol or drugs. CYFD’s

evidence in support of termination consisted solely of the testimony of Steckbauer, who

instructed Father to address his “substance abuse history” in his therapy sessions but then

never communicated with Father either during or after he completed the recommended

sessions. In Hector C., we held that the evidence was insufficient to support a finding that

the causes and conditions of neglect were unlikely to change in the foreseeable future where

“[n]o effort was made by CYFD to present an opinion . . . based on [the f]ather’s current

situation and on new information that had become available since [the father’s] evaluation.”

2008-NMCA-079, ¶ 19 (emphasis added). In that case, CYFD did offer expert testimony

from a psychologist, who opined that the father could not resolve the causes and conditions

of neglect of his child due to the combination of the father’s history of drug addiction, gang

affiliation, and prior incarceration. Id. ¶¶ 15, 19. We determined that the “evidence was stale

for the purpose of determining whether those conditions persisted at the time of the hearing

or would persist into the future.” Id. ¶ 16 (quoting State ex rel. Dep’t of Human Servs. v.

Natural Mother, 1981-NMCA-103, ¶ 9, 96 N.M. 677, 634 P.2d 699). We agree with Father
15

that the district court similarly based its finding on stale evidence in this case.

{41} CYFD developed its treatment plan to address Father’s “DWI history [and] substance

abuse history[,]” but it did not present any evidence that these causes and conditions

persisted or were unlikely to change in the foreseeable future. Father’s DWI arrest occurred

in December 2012, which was prior to the time Child was taken into custody, and more than

a year had elapsed between Father’s arrest and the final day of the termination trial. Given

that CYFD did not reevaluate or communicate with Father after early December 2013,

Steckbauer’s opinion about Father’s progress focused on Father’s past and whether, in her

general experience as a social worker, “someone” could resolve those issues in six sessions

of therapy. We are not persuaded that Steckbauer’s testimony alone is the type of evidence

that leaves the “fact finder’s mind . . . with an abiding conviction that the evidence is true.”

In re Adoption of Doe, 1982-NMCA-094, ¶ 31 (internal quotation marks and citation

omitted); see Fitzgerald v. Fitzgerald, 1962-NMSC-028, ¶ 2, 70 N.M. 11, 369 P.2d 398

(“[T]estimony founded upon mere surmise, guess or conjecture is not substantial to support

a finding of fact.”). CYFD did not introduce any other evidence in support of the conclusion

that Father’s past conduct demonstrated that the causes and conditions of neglect persisted

at the time of trial, were unlikely to change, and currently impacted Father’s ability to parent

Child. This lack of evidence does not constitute clear and convincing evidence.

2. Evidence Supporting Father’s Mental Health and Domestic Violence Issues

{42} We now turn to the evidence pertaining to Father’s mental health and domestic

violence history. Father contends that the court’s finding that Father was unlikely to alleviate

the causes and conditions of neglect was improperly based on stale and speculative evidence

related to Father’s “impulsivity.” In defending the court’s finding on appeal, CYFD cites

Steckbauer’s testimony that Father’s completion of six sessions of therapy was inadequate

to address the “magnitude and severity” of the issues identified in Father’s psychological

evaluation, namely his problems with impulse control. CYFD additionally cites its

“concerns” with Father’s domestic violence history and that Father never completed a

domestic violence assessment.

{43} The district court heard testimony from Steckbauer that she instructed Father in early

December 2013 to address “parenting” and “his domestic violence history” in therapy.

During cross-examination on the final day of trial on February 13, 2014, Father’s counsel

introduced a letter dated January 30, 2014 from the Mexican psychologist who had evaluated

Father. The letter, which Steckbauer said she had received from the Consulate, stated that

Father had successfully completed his therapy sessions, showed “favorable control of [his]

emotions[,]” and was “capable of being in charge of [Child].” When asked in crossexamination whether the letter resolved her concerns about the psychologist’s initial

diagnosis that Father “lacks control of his impulses[,]” Steckbauer answered not

“completely” because “somebody could be still struggling with impulsivity and maybe be

seen to be able to make decisions, I don’t know.” Steckbauer said that “impulsivity” is a “big

issue” that CYFD considers when assessing parental capacity and that CYFD did not “have
16

anything specifically stating that [impulsivity] was addressed.”

{44} When asked whether Father complied with the treatment plan requirement for

parenting classes, Steckbauer testified that, based on her knowledge of the documents she

received from the Consulate, she believed Father addressed parenting education “to the best

of his ability” because parenting classes were unavailable in Father’s municipality.

Nonetheless, Steckbauer testified that she did not agree with the psychologist’s conclusion

about Father’s parenting capability because she did not believe that the psychologist’s letter

was a “full assessment” of the multiple aspects that factor into CYFD’s determination

regarding someone’s ability to parent a child. Steckbauer testified that “there’s more than

one need, and saying that [Father] completed therapy as an equivalent of parenting classes,

it’s great . . . but I don’t think that [Father’s psychologist] from six sessions of therapy could

speak to that.” CYFD also elicited testimony from Steckbauer that indicated Father’s

psychological evaluation was deficient. Steckbauer stated that Father’s therapy sessions

were, in her experience, inadequate to address domestic violence, parenting education, and

substance abuse areas.

{45} We agree with Father that the evidence was insufficient to support the district court’s

finding that Father had failed or was unlikely to alleviate the causes and conditions of

Child’s neglect in the foreseeable future. In its findings, the court specified that the

psychological evaluation of Father “was not very revealing regarding his mental health” and

“did not use any of the standard testing recognized in the United States.” The court also

stated at the conclusion of trial that the evaluation “doesn’t really tell us much, except that

[Father] has some impulsivity problems, which is evident in what’s happened here in his

past.” The court further noted that Father participated in six individual therapy sessions

recommended by the evaluation but that the sessions “did not satisfy [CYFD’s] requirement

for domestic violence . . . and parenting counseling.” Again, the court relied on a lack of

evidence establishing the adequacy of Father’s mental health and parenting capabilities as

if it were, in reality, evidence demonstrating that the causes and conditions of Child’s neglect

persisted at the time of trial or were likely to continue into the future.

{46} CYFD did not present evidence that Father was unable to safely parent Child because

his present condition was plagued by unresolved mental health problems or domestic

violence issues. In State ex rel. Children, Youth & Families Dep’t v. Athena H., this Court

held that substantial evidence supported the district court’s finding that the mother was

unlikely to alleviate the causes and conditions of neglect due to her continued psychological

instability and “the chronic abuse and trauma” that the children suffered while in the

mother’s care. 2006-NMCA-113, ¶ 12, 140 N.M. 390, 142 P.3d 978. In that case, the

evidence in support of termination consisted of the testimony of the children’s therapist and

a child psychologist appointed by the court as an expert in the case. Id. ¶¶ 10, 12. The

evidence also demonstrated that the mother had complied with the treatment plan to the best

of her ability but that she had discontinued “the treatment two years prior to the termination

hearing because she . . . did not believe that she needed continued care.” Id. ¶ 10. Unlike in

Athena H., CYFD did not present evidence that Father suffered from the current or long-term
17

impacts of “impulsivity” that rendered him unable to properly parent Child. Even assuming

the existence of this condition, CYFD did not present evidence that Father’s condition

persisted despite his efforts to comply with his treatment plan or that he was unwilling to

pursue further treatment for the condition.

{47} There is also no evidence that CYFD made any effort to make proper referrals, obtain

information about Father’s condition, or reevaluate Father after it received his psychological

evaluation or the letter regarding Father’s completion of therapy. CYFD did not present any

opinion, other than Steckbauer’s testimony, regarding the credibility of Father’s

psychological evaluation, comparisons to evaluations performed in the United States, the

adequacy of Father’s therapy sessions, or the conclusions that could be drawn about Father

from his participation in the evaluation or the sessions. Additionally, there was no evidence

that any impulse control or domestic violence issues were connected to the causes and

conditions that brought Child into CYFD’s custody. In our review of the record, we did not

identify any facts that would explain or clarify the details of Steckbauer’s reference to

Father’s domestic violence history, and CYFD did not introduce any evidence at trial in this

regard. We therefore cannot conclude that CYFD met its burden of proof and that there was

substantial evidence to justify termination on those grounds. See, e.g., State ex rel. Children,

Youth & Families Dep’t v. Stella P., 1999-NMCA-100, ¶ 35, 127 N.M. 699, 986 P.2d 495

(stating that in a case of a parent whose mental illness constituted the basis for CYFD’s

proposed termination, CYFD must present “sufficient testimony to allow the court to make

the statutorily required findings” under the ANA).

3. Evidence Supporting Father’s Ability to Provide Safe and Stable Housing

{48} Finally, we address the evidence pertaining to the home study requested by CYFD

and conducted by the Consulate as part of Father’s treatment plan. Given that Father pleaded

no contest to CYFD’s neglect allegations that he had “failed to provide for [Child’s] basic

necessities[,]” Father’s ability to obtain safe and stable housing was obviously fundamental

to Father’s progress toward alleviating the causes and conditions of neglect. See In re Grace

H., 2014-NMSC-034, ¶ 11 (stating that the treatment plan required by the ANA sets forth

services “the parents must complete in order to address the causes and conditions which led

to removal of the child from the home”). Accordingly, Father’s treatment plan required that

he “obtain and maintain safe and stable housing[,]” and CYFD was required to “monitor

[Father’s] current living arrangement.” Steckbauer also testified that she instructed Father

to have a home study completed as part of the treatment plan.

{49} The home study was conducted on November 5, 2013 and sent by email to

Steckbauer by Consulate staff. The study indicated that Father had obtained employment and

lived in a home with his mother and sister. Father also provided his financial information as

part of the study. Steckbauer testified that, based on the study, the home looked appropriate

and that she did not have any problem with its physical structure or cleanliness. Despite the

favorable results, CYFD’s counsel elicited testimony from Steckbauer that was critical of

the study. Steckbauer testified that the study did nothing to explore Father’s possible
18

criminal history or any possible abuse or neglect allegations against Father in Mexico. She

also said that she had no knowledge of the length of time it took Mexican investigators to

complete the home study, whether investigators had interviewed members of Father’s family

outside of the home, or whether investigators had explored “medical issues” of anyone in

Father’s family. The district court found that the “home was deemed appropriate, however,

the home study did not include a criminal history for the family members, or any

documentation as to a lack of abuse and neglect allegations. It was unclear whether anyone

other than the family members were interviewed, or whether any medical issues were

considered.” The court stated at the conclusion of trial that Father’s mother and sister, who

lived in the home, were “probably good people, but we don’t know.”

{50} Once more, based on the lack of evidence before it, the district court improperly

shifted CYFD’s statutory burden of proof required in a termination case to Father. The

court’s finding pointed to the lack of information included in the study as evidence in favor

of termination; however, it was CYFD’s statutory responsibility to support its termination

motion by presenting evidence that established that Father’s home was unsafe or unstable,

which CYFD failed to do. To the contrary, based on the evidence presented at trial, the

district court found that the home “was deemed appropriate[.]” Even more telling, CYFD did

not present evidence that suggested that the study was incomplete or deficient as a result of

Father’s unwillingness to participate in the study or disclose information. Steckbauer

informed Father in December 2013 that she had received the home study, but she never

discussed the results of the study with Father nor notified him of any additional information

CYFD required. There is also no evidence that CYFD communicated with the Consulate to

express its reservations about the completeness of the study or to request any information

whatsoever. We therefore are not convinced that the evidence of the home study constitutes

substantial evidence supporting the district court’s finding.

{51} Notably, in announcing its findings at the conclusion of trial, the court explained that

it believed that Father had made efforts to alleviate the causes and conditions of Child’s

neglect, “credit[ed] him with making efforts,” and stated that it “underst[ood] it’s difficult

in Mexico.” While we recognize that “[e]ven with a parent’s reasonable efforts, . . . the

parent may not be able to make the changes necessary to rectify the causes and conditions

of the neglect and abuse so as to enable the court to conclude that the parent is able to

properly care for the child[,]” Athena H., 2006-NMCA-113, ¶ 9, we cannot conclude that

there was clear and convincing evidence to support the district court’s determination that

Father was unable to alleviate the causes and conditions of Child’s neglect in the foreseeable

future. We reiterate that Father’s deportation did not absolve CYFD from its required

statutory burden of proof in termination proceedings. See State ex rel. Children, Youth &

Families Dep’t v. Maria C., 2004-NMCA-083, ¶ 22, 136 N.M. 53, 94 P.3d 796 (“Because

a [termination of parental rights] hearing irrevocably divests parents of all legal rights in

their children . . . CYFD carries the burden of proof by clear and convincing evidence.”).

{52} In holding that CYFD failed to meet its burden, we do not overlook the evidence

pertaining to Father’s efforts to provide support for and communicate with Child. This
19

evidence may indicate abandonment of Child; however, abandonment under Section 32A-4-

28(B)(1) was not a proper basis for termination in this case. See Christopher B., 2014-

NMCA-016, ¶ 12 (“Multiple factors may indicate abandonment, including an absence of

financial support and a purposeful declination of opportunities to remain in contact with the

child or children.”); see also In re Guardianship of Ashleigh R., 2002-NMCA-103, ¶ 22, 132

N.M. 772, 55 P.3d 984 (“A parent’s contact with the children and financial support for the

children during their absence will weigh against a finding of abandonment.”). We have

difficulty concluding that this same evidence supports termination on the basis that Father

was unlikely to alleviate the causes and conditions of Child’s neglect in the foreseeable

future. Father’s ability to provide financial support to Child was hampered by his

incarceration for the initial seven months of the case, but the home study indicated that

Father obtained employment shortly after his deportation. Steckbauer testified that an

important part of Father’s “financial plan” requirement under his treatment plan was that he

maintain employment. Given the very young age of Child, we are also not persuaded that

Father’s failure to send letters, which Child could not read or comprehend, is dispositive of

Father’s inability to maintain a bond with Child. Child was four months old at the time

CYFD took him into custody and was just over a year old at the time of Father’s termination

trial. We do not believe this evidence alone is substantial evidence to support termination

under Section 32A-4-28(B)(2).

C. Reasonable Efforts by CYFD

{53} Father next argues that clear and convincing evidence did not support the district

court’s determination that CYFD made reasonable efforts to assist Father in adjusting the

causes and conditions that led to CYFD’s custody of Child. Father contends CYFD failed

to comply with its statutory obligation to pursue reunification by not engaging in sufficient

efforts to communicate with Father or the Mexican Consulate following his deportation, and

he advances several arguments in support of this claim, including that CYFD (1) failed to

request information that it deemed necessary to complete the home study and Father’s

psychological evaluation; and (2) failed to determine if Father’s relatives in Mexico would

be a suitable placement for Child.

{54} CYFD is required to “provide reasonable efforts to assist the parent to change the

conditions that gave rise to the neglect and abuse, and the district court must consider the

results of CYFD’s efforts.” Athena H., 2006-NMCA-113, ¶ 9. “What constitutes reasonable

efforts may vary with a number of factors, such as the level of cooperation demonstrated by

the parent and the recalcitrance of the problems that render the parent unable to provide

adequate parenting.” Patricia H., 2002-NMCA-061, ¶ 23. In determining whether CYFD’s

efforts were reasonable, we also consider the duration of reunification services provided to

a parent by CYFD prior to resorting to termination. Id. ¶ 26. This Court has used the time

period for reunification services set forth under federal law as a touchstone in our reasonable

efforts analysis. Id. The Adoption and Safe Families Act (ASFA), Pub. L. No. 105-89, 111

Stat. 2115 (1997), provides that a fifteen-month period following the placement of a child

into foster care consists of “time-limited reunification services.” Id.; see also Hector C.,
1

Father argues on appeal with regard to CYFD’s reasonable efforts that CYFD

violated Article 37 of the Vienna Convention on Consular Relations (VCCR), April 24,

1963, 21 U.S.T. 77, 596 U.N.T.S. 261, by failing to provide the Mexican Consulate timely

notification of CYFD’s custody of Child. The VCCR is a multilateral international treaty that

regulates various consular activities between countries that are parties to the treaty. SanchezLlamas v. Oregon, 548 U.S. 331, 337-38 (2006). Father raises the issue of consular

notification for the first time on appeal and thus did not properly preserve this argument in

the district court proceedings below. See Rule 12-216(A) NMRA (“To preserve a question

for review it must appear that a ruling or decision by the district court was fairly

invoked[.]”). In any event, our Supreme Court has determined that “the provisions of the

VCCR do not create legally enforceable individual rights.” State v. Martinez-Rodriguez,

2001-NMSC-029, ¶ 15, 131 N.M. 47, 33 P.3d 267, abrogated on other grounds as

recognized by State v. Forbes, 2005-NMSC-027, ¶ 6, 138 N.M. 264, 119 P.3d 144.

Therefore, Father does not have standing to enforce Article 37 of the VCCR. See MartinezRodriguez, 2001-NMSC-029, ¶ 15. 

20

2008-NMCA-079, ¶ 26 (applying ASFA’s fifteen-month window as the time period for

analyzing whether CYFD’s efforts were reasonable under the ANA).

{55} We cannot conclude that substantial evidence supported the district court’s

determination that CYFD made reasonable efforts when the evidence shows that CYFD’s

approach to the circumstances of Father’s deportation foreclosed any possibility of achieving

the goal of reunification. Although Father’s treatment options during his incarceration in the

United States were limited, Father engaged in an addiction treatment program, provided

CYFD the names of relatives living in the United States so that placement options could be

explored, and wrote to Child in April 2013. Steckbauer testified that she did use the

assistance of an interpreter to meet with Father monthly during that time, and she also

explored Father’s relatives in the United States as possible placement options for Child. Yet

CYFD’s reunification efforts abruptly changed following Father’s deportation and

participation in treatment services in Mexico.

{56} CYFD requested the Consulate’s assistance in conducting a psychological evaluation

and a home study after Father was deported in September 2013.1 Nevertheless, at the end of

October 2013, CYFD moved to terminate Father’s parental rights. In its motion, CYFD

asserted that Father had failed to comply with all aspects of his treatment plan, including that

Father failed to (1) maintain weekly contact with CYFD, (2) discuss his history with CYFD,

(3) complete a mental health assessment, (4) submit proof that he had obtained safe and

stable housing, and (5) participate in family time with Child. We are troubled that CYFD

requested the Consulate’s assistance in offering treatment plan services to Father following

his deportation, then approximately one month later sought to terminate Father’s rights on

grounds that he failed to comply with that plan. It is also disconcerting that the evidence

presented at trial plainly conflicted with certain key representations about Father’s conduct

alleged by CYFD in its termination motion. As we previously stated, Steckbauer based her
21

development of the treatment plan on Father’s disclosures about his history. Steckbauer also

testified that Father called her after he was deported in September 2013, that she spoke to

him by telephone in October 2013, and that during that conversation she told him to maintain

monthly contact with CYFD. Furthermore, Steckbauer testified that Father was unable to

have in-person visitation with Child, demonstrating that CYFD was well aware that Father’s

participation in family time with Child was complicated by the circumstances of his

incarceration and deportation.

{57} Despite CYFD’s termination motion, Father demonstrated efforts to cooperate in

treatment services intended to assist him in adjusting the conditions that rendered him unable

to properly care for Child. By early December 2013, Father participated in the home study

and psychological evaluation requested by CYFD. He also submitted a urinalysis and was

slated to begin therapy sessions that were recommended by the psychological evaluation.

During his telephone conversation with Steckbauer that month, Father inquired about Child’s

well-being and asked Steckbauer to send him a picture of Child; however, Steckbauer ceased

her communication with Father after that telephone call, citing “caseload” issues as the

reason she did not arrange a call with Father. Steckbauer did not inform Father of additional

information necessary to complete the home study or direct him to submit additional

urinalyses. Further, we find it noteworthy that Steckbauer testified that she never spoke to

Father about what he earned from his job, whether he was saving his money, or why he was

not sending money to Child, despite his employment. She also did not contact him after she

received his psychological evaluation and, as a result, never recommended to Father that he

address any impulsivity problems in his therapy sessions. Steckbauer testified that

“impulsivity” was a significant issue in assessing parental capacity but that Father was never

notified that his “impulsivity” problems could constitute a basis for termination. See State

ex rel. Children, Youth & Families Dep’t v. Joseph M., 2006-NMCA-029, ¶¶ 20, 22, 139

N.M. 137, 130 P.3d 198 (holding that there was insufficient evidence to support that CYFD

made reasonable efforts to assist the father because CYFD never informed him that his

relationship with the mother was a cause and condition of the abuse and neglect that could

be a basis for termination). CYFD also made no attempt to reevaluate Father after he

completed the recommended therapy sessions in order to assess his progress. In essence,

CYFD halted its reunification efforts less than one year after taking custody of Child, then

required Father to present evidence at trial that rebutted CYFD’s presumption that he was

unfit to parent Child.

{58} We also agree with Father that CYFD fell short in its efforts, required under the

ANA, to explore whether Father’s relatives in Mexico would serve as suitable placement

options for Child. Section 32A-4-25.1(D) provides that “[i]f the court adopts a permanency

plan other than reunification, the court shall determine whether [CYFD] has made reasonable

efforts to identify and locate all grandparents and other relatives.” In State ex rel. Children,

Youth & Families Department v. Laura J., this Court “emphasize[d] that Section 32A-4-

25.1(D) imposes a duty upon the district court to make a serious inquiry into whether

[CYFD] has complied with its mandate to locate, identify, and consider relatives with whom

to place children in its custody.” 2013-NMCA-057, ¶ 61, 301 P.3d 860. We further stated:
22

In future cases, such inquiry will not be satisfied by a pro forma ratification

of [CYFD’s] assertions that such efforts have been made. . . . [I]n order to

comply with the relatives search requirement of Section 32A-4-25.1(D), the

court must conclude that [CYFD], through all of its available resources, has

met its affirmative duty to “identify and locate . . . [and] conduct home

studies on any appropriate relative expressing an interest in providing

permanency for the child.” Section 32A-4-25.1(D).

Laura J., 2013-NMCA-057, ¶ 61 (fifth and sixth alterations in original). The district court

did not indicate such a conclusion in its findings of facts and conclusions of law, and we

have difficulty concluding that Steckbauer’s testimony consitutes evidence that her efforts

to consider Father’s Mexican relatives as potential placements for Child were reasonable.

Steckbauer testified that Father’s relatives in the United States suggested to her that their

family members in Mexico could have been potential placement options for Child. She also

testified that she spoke with the Consulate about the possibility of Father’s family in Mexico

being a foster care placement for Child, but she could not remember the time that discussion

occurred or its outcome, and she never spoke to his mother and sister. When Father’s counsel

asked Steckbauer if she knew if Father’s mother and sister were interested in being foster

care placements, she responded that she said “it would be explored, but [Father’s mother and

sister] haven’t communicated through the Consulate or me any further to pursue that.”

However, because of her conversations with the Consulate, Steckbauer testified that she

knew that mother and sister were willing to have Child in the home. We cannot conclude that

this evidence is sufficient to survive the type of inquiry that we imposed in Laura J. to

ensure that CYFD met its obligations under Section 32A-4-25.1(D).

{59} In response to Father’s arguments on appeal, CYFD points to its efforts to request

the psychological evaluation and home study, obtain documentation of their completion, and

translate the results. CYFD also argues that it sought the Consulate’s assistance in using the

Consulate’s mail system to facilitate Father’s communication with Child and that CYFD

explored Father’s relatives in the United States as possible placement options. Considering

the totality of the circumstances, we do not agree with CYFD that these efforts met the

minimum statutory requirements under the ANA. See Patricia H., 2002-NMCA-061, ¶ 28

(“[An appellate court’s] job is not to determine whether CYFD did everything possible; our

task is limited by our statutory scope of review to whether CYFD complied with the

minimum required under law.”). Father made efforts to comply with the services offered in

Mexico as part of his treatment plan once he was free from the restrictions of his

incarceration. In light of Father’s efforts, we cannot attribute the resulting lack of evidence

related to the causes and conditions of neglect to Father. Cf. Hector C., 2008-NMCA-079,

¶ 20 (holding that CYFD failed to present clear and convincing evidence that the causes and

conditions of neglect were unlikely to change in the foreseeable future when the father

complied with his treatment plan and CYFD failed to reevaluate the father following his

release from prison). Additionally, Child had been in CYFD’s custody for nine months at

the time CYFD moved for termination, and CYFD ended its contact with Father less than

twelve months after CYFD took custody of Child. This time period expired well before the
23

fifteen-month period of time-limited reunification services established by ASFA. We

acknowledge “CYFD’s duty to expeditiously handle [termination] cases,” id., but its actions

suggest that it did not properly assist Father in ameliorating the causes and conditions of

Child’s neglect. See Natural Mother, 1981-NMCA-103, ¶ 14 (holding that the Human

Services Department failed to make reasonable efforts and “acted in bad faith” when it

disregarded the mother’s efforts and rejected a favorable home study). We therefore

conclude that substantial evidence of a clear and convincing nature did not exist to support

the district court’s finding that CYFD made reasonable efforts to assist Father in adjusting

the causes and conditions that led to CYFD’s custody of Child.

D. Best Interests of Child

{60} The ANA requires the district court to “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.” Section 32A-4-28(A). It is well established,

however, that adherence to this statutory principle “cannot be done to the utter exclusion of

consideration of the rights of a parent to raise [his or] her children.” Natural Mother, 1981-

NMCA-103, ¶ 16. “[I]n termination of parental rights proceedings, there is often a tension

between the [child’s needs] and the understanding that parental rights are among the most

basic rights of our society and go to the very heart of our social structure.” State ex rel.

Children, Youth & Families Dep’t v. Benjamin O., 2007-NMCA-070, ¶ 34, 141 N.M. 692,

160 P.3d 601 (internal quotation marks and citation omitted).

{61} Based on our review of the trial record, the district court found Father’s

acknowledgment of the language barrier between Father and Child highly persuasive in

determining Child’s need for permanency. The court explicitly stated in its written findings

that “[Father] acknowledged that he has not seen [Child] since December of 2012, and that

[Child] would not recognize him. He also acknowledged that [Child] does not speak Spanish,

that language would be a barrier, and that [Child] would have to get to know [Father] ‘little

by little.’” In announcing its termination decision at the end of trial, the court explained that

Father’s testimony regarding the language barrier was “very telling, because his son

wouldn’t be able to communicate with him as a result of this break in their communication,

literally.”

{62} We are unconvinced that, as a general rule, native language disparities between a

natural parent and his or her infant child are insurmountable obstacles to reunification. We

have serious reservations about the district court’s reliance on this theory in light of the lack

of evidence before the court in this case. There was no evidence presented by CYFD that

Child, who was approximately eighteen months old at the time of trial and in the early stages

of developing his language capabilities, possessed an inability to learn Spanish that fatally

inhibited his reunification with Father. Steckbauer testified that it would be “harmful” to

return Child to Father because there had been no “direct communication” between Father

and Child. However, CYFD failed to present any evidence that Father’s native language

rendered him incapable of caring for Child. Moreover, the lack of evidence related to the
24

home study impaired the court’s knowledge of the adequacy of the home environment that

would await Child in Mexico. The court did hear evidence that Child had resided in a stable

foster home environment in the United States with his half-brother since CYFD took custody

of Child, but “a parent’s rights may not be terminated simply because a child might be better

off in a different environment.” Joseph M., 2006-NMCA-029, ¶ 16 (internal quotation marks

and citation omitted). We therefore cannot agree that presumptions about Child’s Spanishspeaking skills, given the young age of Child and the truncated time period of CYFD’s

reunification efforts, indicated an irreparable disintegration of the parent-child relationship

that overwhelms all other considerations in this case.

{63} We do not suggest that Child’s best interest is to be reunited with Father in Mexico.

We recognize that Child now resides in a foster home with his half-brother and Child’s

permanency needs are significant. However, CYFD’s failure to comply with its statutory

mandate to make reasonable efforts and carry its evidentiary burden of proof in this case

improperly deprived Father of his rights. This Court has specified that a judgment

terminating parental rights must be entered “only with the utmost circumspection and

caution” due to the fundamental nature of those rights. Stella P., 1999-NMCA-100, ¶ 33; see

In re Termination of Parental Rights of Reuben & Elizabeth O., 1986-NMCA-031, ¶ 36, 104

N.M. 644, 725 P.2d 844 (“Termination of parental rights is not a matter to be lightly

taken.”). Upon remand of this case, “[i]t is clear that the district court is in the best position

to determine the present circumstances of [Child] and Father and to balance the emotional

interests of [Child] and Father’s rights.” Lance K., 2009-NMCA-054, ¶ 41.

CONCLUSION

{64} New Mexico law does not relieve CYFD of its statutory mandate to make reasonable

efforts to assist the parent in adjusting the causes and conditions of neglect simply because

the parent has been deported to another country. The ANA affirmatively places the burden

on CYFD, not the parent, to prove by clear and convincing evidence that the parent is

unlikely to alleviate the causes and conditions of neglect in the foreseeable future. In this

case, CYFD moved to terminate Father’s parental rights one month after his deportation and

discontinued its communication with Father shortly thereafter. Additionally, CYFD failed

to reevaluate Father’s progress in ameliorating the causes and conditions of neglect, despite

Father’s efforts to comply with significant aspects of his treatment plan. Accordingly, we

conclude that CYFD’s subsequent presentation of incomplete evidence was not substantial

evidence of a clear and convincing nature that justified termination of Father’s parental

rights under the ANA. The district court’s termination for abandonment was likewise

improper. We therefore reverse the district court’s termination of Father’s parental rights

under Section 32A-4-28(B)(1) and Section 32A-4-28(B)(2), and we remand this case for

further proceedings consistent with this opinion.

{65} IT IS SO ORDERED.

____________________________________
25

JAMES J. WECHSLER, Judge

WE CONCUR:

____________________________________

MICHAEL D. BUSTAMANTE, Judge

____________________________________

LINDA M. VANZI, Judge