1

Certiorari Denied, October 27, 2016, S-1-SC-36107

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-101

Filing Date: August 31, 2016

Docket No. 34,345

COULTON QUEVEDO, by and through his 

Attorney-in-Fact (with power of attorney), AIMEE 

BEVAN; BARBARA GUILFOYLE, individually; 

SUSAN WECKESSER, as Conservator for RYAN 

MORGAN; CHERYL MORGAN, individually; 

JORDAN ALMANZA, individually; and MARC 

FLEMING, individually, 

Plaintiffs-Appellants, 

v.

NEW MEXICO CHILDREN, YOUTH & FAMILIES 

DEPARTMENT, NEW MEXICO LICENSING AND 

CERTIFICATION AUTHORITY, a division of the

NEW MEXICO COMMUNITY OUTREACH AND 

BEHAVIORAL HEALTH PROGRAMS, and NEW

MEXICO DEPARTMENT OF WORKFORCE 

SOLUTIONS, 

Defendants-Appellees. 

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

Francis J. Mathew, District Judge

McGinn, Carpenter, Montoya & Love, PA

Randi McGinn

A. Elicia Montoya

Michael E. Sievers

Albuquerque, NM

for Appellants

Law Office of Michael Dickman
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Plaintiffs’ complaint also named the Department of Workforce Solutions (DWS),

a cabinet-level department of the state. NMSA 1978, § 9-26-4 (2007). The district court

granted summary judgment “in favor of the [s]tate [d]efendants,” including both CYFD (and

its Licensing and Certification Authority) and DWS. While on appeal Plaintiffs state that

they appeal the grant of summary judgment in its entirety, they posit no arguments related

to DWS’s duties to them nor do they cite to any statutes or regulations defining DWS’s

obligations vis á vis TBR. We therefore consider Plaintiffs’ appeal of the grant of summary

judgment to DWS abandoned. See State ex rel. Office of State Eng’r v. Lewis, 2007-NMCA008, ¶ 74, 141 N.M. 1, 150 P.3d 375 (“A party that fails to present argument or authority to

support a contention runs a very substantial risk that this Court will not address the

contention, either because of the failure of argument or authority, or because the party is

deemed to have abandoned the contention.”).

2

Michael Dickman

Santa Fe, NM

for Appellees

OPINION

BUSTAMANTE, Judge.

{1} Plaintiffs appeal the grant of summary judgment in favor of the Children, Youth, and

Families Department (CYFD) on the ground that CYFD was immune from suit under the

New Mexico Tort Claims Act. We conclude that questions of material fact preclude

summary judgment and reverse.

BACKGROUND

{2} Tierra Blanca Ranch High Country Youth Program (TBR) is a private, for-profit

business in New Mexico that provides troubled adolescent residents with schooling,

counseling, and therapy. CYFD is a cabinet-level department of the state government.

NMSA 1978, §§ 9-2A-1 to -24 (1992, as amended through 2011).

{3} Plaintiffs Quevedo, Morgan, Almanza, and Fleming, together with the other plaintiffs

(collectively, Plaintiffs), filed a multi-count complaint in 2013 against CYFD1

 and TBR

alleging that while they were participants in TBR’s program, they were physically and

emotionally abused by TBR staff and other participants. Some also allege that they were

deprived of adequate food, denied access to their families, shackled, and forced to perform

extreme exercise. Plaintiffs further allege that CYFD knew of abusive practices at TBR, that

TBR was not licensed pursuant to statute and CYFD regulations governing licensing of

“multi-service homes” and “community homes,” and that CYFD negligently failed to license

and regulate TBR. They point to the fact that, in 2005, CYFD initiated the licensing process
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with TBR. CYFD subsequently stated in a 2006 letter to TBR that it “ha[d] determined that

TBR is a multi[-]service home under [S]ection 7.8.3.10(B) [NMAC] of the Shelter Care

Regulations” and that “TBR must have a license to continue in operation.” However, CYFD

eventually ceased its efforts to license TBR. CYFD maintains that “the applicable New

Mexico statutes [do not] allow[] or require[] CYFD to license TBR[].”

{4} Instead of answering the complaint, CYFD filed a motion for summary judgment on

the ground that the so-called “building waiver” in NMSA 1978, Section 41-4-6(A) (2007)

of the New Mexico Tort Claims Act (the TCA) does not waive immunity for Plaintiffs’

claims. See NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2015); Rule 1-056

NMRA. After a hearing on the motion for summary judgment, the district court granted the

motion. Plaintiffs appeal. Additional facts are included as pertinent to our discussion of

Plaintiffs’ arguments.

DISCUSSION

{5} “Summary judgment is proper if there are no genuine issues of material fact and the

movant is entitled to judgment as a matter of law.” Callaway v. N.M. Dep’t of Corr., 1994-

NMCA-049, ¶ 2, 117 N.M. 637, 875 P.2d 393 (internal quotation marks and citation

omitted). “However, summary judgment should not be used as a substitute for trial on the

merits so long as one issue of material fact is present in the case.” Id. “In addition, when the

facts are insufficiently developed or further factual resolution is essential for determination

of the central legal issues involved, summary judgment is not appropriate.” Id. “An issue of

fact is ‘material’ if the existence (or non-existence) of the fact is of consequence under the

substantive rules of law governing the parties’ dispute.” Martin v. Franklin Capital Corp.,

2008-NMCA-152, ¶ 6, 145 N.M. 179, 195 P.3d 24. Our review of summary judgment is de

novo. Farmington Police Officers Ass’n v. City of Farmington, 2006-NMCA-077, ¶ 13, 139

N.M. 750, 137 P.3d 1204.

{6} Here, the relevant substantive law is the TCA, which “grant[s] governmental entities

and employees a general immunity from tort liability, but . . . waive[s] that immunity in

certain defined circumstances.” Cobos v. Doña Ana Cty. Hous. Auth., 1998-NMSC-049, ¶

6, 126 N.M. 418, 970 P.2d 1143; see § 41-4-4(A). “In each of these waivers the Legislature

identified a specific existing duty on the part of public employees, . . . which, if breached,

could result in liability ‘based upon the traditional tort concepts of duty and the reasonably

prudent person’s standard of care in the performance of that duty.’ ” Cobos, 1998-NMSC049, ¶ 6 (quoting Section 41-4-2(B)).

{7} “The ‘building waiver’ waives governmental immunity for damages caused by the

negligence of public employees while acting within the scope of their duties in the operation

or maintenance of any building, public park, machinery, equipment[,] or furnishings.” Id.

¶ 7 (internal quotation marks and citation omitted); see § 41-4-6. In Cobos, the Court held

that the building waiver is not limited to public buildings, stating that “[t]he Legislature

defined ‘scope of duties’ to mean ‘any duties that a public employee is requested, required,
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or authorized to perform . . . regardless of the time and place of performance.’ ” Cobos,

1998-NMSC-049, ¶ 8 (omission in original) (quoting Section 41-4-3(G)). “Accordingly, the

‘building waiver’ in Section 41-4-6 on its face excepts immunity for the negligent operation

or maintenance of any building by a public employee acting within the scope of duty.”

Cobos, 1998-NMSC-049, ¶ 8.

{8} Moreover, “the waiver is not limited to injuries resulting from a physical defect on

the premises.” Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, ¶ 10, 310 P.3d 611.

“Instead, we interpret Section 41-4-6(A) broadly to waive immunity where due to the alleged

negligence of public employees an injury arises from an unsafe, dangerous, or defective

condition on property owned and operated by the government.” Encinias, 2013-NMSC-045,

¶ 10 (internal quotation marks and citation omitted). “The waiver applies to more than the

operation or maintenance of the physical aspects of the building, and includes safety policies

necessary to protect the people who use the building.” Upton v. Clovis Mun. Sch. Dist.,

2006-NMSC-040, ¶ 9, 140 N.M. 205, 141 P.3d 1259.

A. The “Building Waiver” Permits Suit When There Is a Duty of Care Created by

a Relationship Between the Parties

{9} Case law indicates that the relationship between a governmental entity and a person

can influence whether the building waiver applies in a given circumstance. Two cases are

particularly instructive. In Cobos, the plaintiff sued the Doña Ana County Housing Authority

(Housing Authority) for the wrongful death of her daughter and granddaughters as a result

of a fire. 1998-NMSC-049, ¶ 4. The plaintiff and her family “were participants in a

federally[]subsidized low-income housing program administered by the . . . Housing

Authority. Their home was privately owned and rented to them through the [Housing]

Authority’s Section 8 Existing Housing Program.” Id. ¶ 2. The Housing Authority argued

that the building waiver did not apply to permit suit against it because it did not have a

sufficient legal interest in the home, which was owned by a private individual. Id. ¶ 4. The

Court of Appeals affirmed the dismissal of the complaint on immunity grounds and because

the Housing Authority had not received the required notice under the TCA. Id. ¶¶ 4-5.

{10} The Supreme Court granted certiorari to address only “whether [the p]laintiff [had]

stated a claim under the building waiver based on the duties of the public employees who

appear as individual defendants in [that] case.” Id. ¶ 5. It held first that “the effect of the

[building] waiver should not be determined by the legal status of or the title to the real

property, but should instead be determined by an examination of the public employees’

duties.” Id. ¶ 7. It next observed that “statutes, regulations, and contracts [are] sources of

duties of ordinary care imposed on public employees that may bring them within a [TCA]

waiver[,]” id. ¶ 12, and made a detailed examination of statutes and regulations governing

the Housing Authority. Id. ¶¶ 13-14. The Municipal Housing Law authorized the Housing

Authority to “construct, maintain, operate[,] and manage any housing project[,]” which was

defined as “any work or undertaking of the county to provide decent, safe, and sanitary

dwellings . . . for persons of low income.” Id. ¶ 13 (omission in original) (emphasis, internal
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quotation marks, and citations omitted). It also required compliance with federal regulations

connected with funding through the federal Section 8 Existing Housing Program. Id. ¶ 14.

Through the program, “the [Housing] Authority screens for and certifies a qualified needy

participant, and represents that it will subsidize the participant’s rental of approved homes

to an extent that is prorated by income, need, and family size. The [Housing] Authority then

contracts with the owner of the property to provide rental housing for the participant.” Id.

This arrangement “create[d] a relationship among the [Housing] Authority, the private

landowners, and the family in need.” Id. In addition, federal regulations required the Housing

Authority to inspect the home before leasing it and annually thereafter and gave the Housing

Authority the right to terminate the contract with the owner if the owner failed to maintain

the home to certain standards. Id. The Court concluded that “[u]nder the state law and the

federal regulations, the [Housing] Authority exercised at least some control over the quality

of the private housing by inspecting and selecting the proper dwelling and by providing in

its contract with the owners a large degree of control over the building.” Id. It concluded that

“the relationships of the actors . . . imposed at least limited duties of operation or

maintenance on [Housing] Authority employees” such that the plaintiff’s claim could

proceed under the building waiver provision of the TCA. Id. ¶ 18.

{11} In reaching this conclusion, the Court rejected the Housing Authority’s argument that

its relationship with the home and owner was “one of mere regulation and inspection of

private property[,]” id. ¶ 15, or the result of a “general regulatory relationship between the

government and its citizens.” Id. ¶ 16. The Court stated that

[t]he Legislature created the Authority for the purposes of operating and

maintaining housing projects in a decent, safe[,] and sanitary condition. The

Housing Authority . . . chose to do so by using private property in the manner

prescribed by the federal regulations. Thus, the privately[]owned home was

substituted for publicly[]owned low-income housing . . . , [and the Housing

Authority’s] duties under the Municipal Housing Law and Existing Housing

Program went far beyond a mere duty to inspect and regulate private conduct.

Id. ¶ 15; see id. ¶ 16 (stating that the Housing Authority’s “voluntary undertaking to

effectuate the policies in [the Municipal Housing Law] by providing [the p]laintiff’s family

with safe housing they could not otherwise obtain” and stating that [t]his undertaking gives

rise to a more specific relationship among the parties than does general regulation for the

public good”).

{12} In Young v. Van Duyne, this Court considered whether the building waiver could

apply to permit suit against CYFD based on CYFD’s failure to inform the plaintiff’s family

that the child they fostered and later adopted had violent tendencies. 2004-NMCA-074, ¶ 3,

135 N.M. 695, 92 P.3d 1269. The child later killed the plaintiff’s wife with a baseball bat.

Id. This Court held that the plaintiff’s claims survived a Rule 1-012(B)(6) NMRA motion

to dismiss and that the plaintiff “must be permitted to proceed on the merits of his claim that

CYFD operated the [plaintiff’s] foster home within the meaning of the [building] waiver.”
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Young, 2004-NMCA-074, ¶¶ 17, 23. Its reasoning was based in part on the special

concurrence in M.D.R. v. State ex rel. Human Services Department, in which Judge Minzner

wrote that “[t]he placement of a child in foster care within a private home involves the state

in the lives of its citizens in a unique way” because the statutes and regulations governing

foster care required the state to maintain a degree of control over the child. 1992-NMCA082, ¶ 17, 114 N.M. 187, 836 P.2d 106 (Minzner, J., specially concurring); see Young, 2004-

NMCA-074, ¶ 20. Although the claims presented in M.D.R. were based on allegations that

the state negligently placed a child in the plaintiffs’ foster home, Judge Minzner observed

that claims related to the day-to-day functioning of the foster home might have fallen within

the “operation” prong of the building waiver. M.D.R., 1992-NMCA-082, ¶ 21. Based on the

special concurrence in M.D.R. and Cobos, the Young Court remanded to permit the plaintiff

to “prove a regulatory scheme or conduct from which a fact[-]finder can conclude preadoption operation of the [plaintiff’s] home as contemplated under [the building waiver].”

Young, 2004-NMCA-074, ¶¶ 20-21, 35.

{13} We recognize that, because of its procedural posture, Young is not dispositive of

whether CYFD was “operating” foster homes so as to permit suit under the building waiver.

Similarly, Cobos is not dispositive. Nevertheless, Young and Cobos together suggest that the

building waiver may apply when an agency undertakes to provide housing for clients when

permitted or required to do so under specific statutory authority. Cobos, 1998-NMSC-049,

¶ 16 (stating that the Housing Authority’s “voluntary undertaking to effectuate the policies

in [the Municipal Housing Law] . . . [gave] rise to a more specific relationship among the

parties than does general regulation for the public good”).

B. CYFD Owes a Duty of Ordinary Care to Children Under Its Jurisdiction

{14} As indicated in Cobos, CYFD’s duty is imposed in a variety of statutes and

regulations. See id. ¶ 12 (“Our appellate courts regularly look to statutes, regulations, and

contracts as sources of duties of ordinary care imposed on public employees that may bring

them within a [TCA] waiver.”). For instance, the Children’s Code establishes standards for

the housing of children by CYFD. The Children’s Shelter Care Act, the purpose of which

is to “divert children out of the juvenile justice system,” NMSA 1978, § 32A-9-2(B)(2)

(1993), provides for the placement by CYFD of children alleged to be in need of supervision,

children determined to be in need of supervision, or alleged delinquent children “in a

community-based shelter-care facility.” NMSA 1978, § 32A-9-6 (1993); see NMSA 1978,

§ 32A-9-3(B)-(D) (1993). Other parts of the Children’s Code indicate that “communitybased shelter-care facilities” include the home of a relative, a licensed foster home or group

home, or “a facility operated by a licensed child welfare services agency[.]” NMSA 1978,

§ 32A-4-8 (1993); see NMSA 1978, § 32A-3B-6 (1993). Similarly, children alleged to be

neglected or abused, or from a family in need of services, may be placed with a family

member, or in a licensed foster home, facility operated by a licensed child welfare services

agency, or a facility provided for in the Children’s Shelter Care Act. Sections 32A-4-8, -3B6. Placement of children alleged to be delinquent or youthful offenders is limited to a similar

list of facilities. NMSA 1978, § 32A-2-12 (2009).
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{15} In addition to these statutes governing where CYFD may place children, CYFD has

promulgated extensive licensing requirements and regulations governing residential sheltercare facilities for children, including crisis shelters, multi-service homes, community homes,

and “[n]ew or [i]nnovative programs” that provide children’s services, as well as foster

homes. 7.8.3.2 NMAC (09/15/1975, as amended through 08/15/2011) (licensing

requirements for shelter-care homes); 8.26.4 NMAC (licensing requirements for foster and

adoptive homes). The shelter-care regulations specify the records that must be kept for each

child, licensing requirements for each facility, reporting requirements, and space and

building requirements, as well as setting standards for medical care, nutrition, housekeeping,

waste disposal, and seclusion rooms, among other things. 7.8.3.2 NMAC (12/23/1987, as

amended through 05/15/2001). More relevant to Plaintiffs’ claims, the regulations require

facilities in which CYFD is permitted or required to place or refer children pursuant to

statute or regulation to “support, protect, and enhance the rights of children” including “the

right to receive visitors in private at reasonable times” and “the right to written and

telephone access.” 7.8.3.28 NMAC(B)(7), (8). The regulations also prohibit use of “unusual

or unnecessary punishments including, but not limited to,” physical exercise as a form of

punishment, denial of food, water, or rest, denial of visiting or communication privileges,

use of restraints, verbal abuse, and spanking, hitting, or “aggressive physical contact with

a child.” 7.8.3.80(F) NMAC. The regulations also include requirements for staffing levels

and records, staff qualifications, staff training and evaluation, and staff health certificates and

criminal background checks. 7.8.3.30 to .34 NMAC. Similarly, the statutes and regulations

governing foster care, discussed in M.D.R., provide for substantial oversight of foster homes

and foster parents. 1992-NMCA-082, ¶ 17 (Minzner, J., specially concurring); see 8.26.4

NMAC. Both the shelter-care regulations and foster home regulations clearly address a wide

variety of aspects of the day-to-day operation of the subject facilities.

{16} Even “community homes,” which are excluded from particular regulations governing

residential shelter-care facilities, see 7.8.3.2 NMAC, and “group homes” are required to

“observe standards comparable to pertinent recognized state or national group home

standards for the care of children[.]” NMSA 1978, § 9-8-13(B) (2007) (defining “group

home” as “any home the principal function of which is to care for a group of children on a

[24]-hour-a-day residential basis,” which (1) “receives no funds as such directly from or

through the department” and (2) “is a member of any state or national association that

requires it to observe standards comparable to pertinent recognized state or national group

home standards for the care of children” (emphasis added)); 8.26.6.7(D) NMAC

(regulations governing community homes, defining a community home as “a facility which

operates 24 hours a day and provides full time care, supervision[,] and support to no more

than 16 children in a single residential building, and which meets the definition of ‘group

home’ as outlined in . . . [Section] 9-8-13.”); 7.8.3.2 NMAC (stating that community homes

are subject to only some of the regulations in 7.8.3 NMAC).

{17} What we glean from these statutes and regulations is that CYFD has an obligation

to house children in its care in homes or facilities that meet certain minimum health and
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In support, Plaintiffs attached a copy of the general appropriations bill containing

the earmark to TBR and a complaint filed by Scott and Colette Chandler, who own and

operate TBR, in which the Chandlers asserted that “[o]ver the existence of the TBR Youth

Program, TBR Youth Program has received youths from New Mexico [CYFD], referrals

from juvenile justice and parole, the courts, as well as private placements.” The Chandlers

further stated that “[f]or enrollment in the TBR Youth program, Scott Chandler is contacted

either by a program facilitator, a social worker, a . . . Juvenile Justice Police Officer [sic],

therapist and/or a parent.”

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safety standards. This obligation may create a relationship between CYFD, the homes or

facilities in which children are placed, and the children. See Cobos, 1998-NMSC-049, ¶ 14.

We conclude that the waiver of immunity in Section 41-4-6(A) permits suit against CYFD

when such a relationship exists.

C. Questions of Material Fact Preclude Summary Judgment

{18} We turn now to the immediate question presented by Plaintiffs’ appeal. The question

centers factually on whether and under what circumstances, children were sent or referred

to TBR by CYFD, a question that raises a genuine issue of material fact, requiring reversal

and remand. Once answered, the issue becomes a legal one, what duty of care, if any, CYFD

owed to any particular child placed or referred to TBR by CYFD. Based on the facts and

arguments on appeal, we construe Plaintiffs’ assertions to go beyond a failure by CYFD to

license and regulate TBR. Plaintiffs argue that CYFD “failed to operate and maintain TBR

safely despite having a duty to do so.” Plaintiffs’ assertions can be read as being similar to

those made at the motion to dismiss stage in Cobos and in Justice Minzner’s scenario in

M.D.R., to include an assertion that CYFD failed to exercise ordinary care “to provide for

the care, protection, and wholesome mental and physical development of children” under

statutory or regulatory circumstances requiring CYFD to do so and to do so in a manner that

could have prevented the alleged abuse of one or more children sent or referred to TBR by

CYFD. To be explored in further discovery and proof are Plaintiffs’ allegations and any

evidence in the record in regard to whether, and if so to what extent, CYFD was involved

in sending or referring children to TBR, and what duty existed, if any, to follow up on their

well-being. Included within this analysis is the extent, if any, indicated by evidence in the

record, to which CYFD’s juvenile justice division may have received funds earmarked for

TBR in 1999, and also the extent, if any, to which inferences can be drawn that TBR and

CYFD had financial dealings then or at any other time. We note that, at the hearing on the

motion, CYFD appeared to admit that CYFD had placed children at TBR. Since CYFD did

not respond to Plaintiffs’ allegations in writing and the admission was only in a passing

comment, we decline to give this statement more import than is deserved. In spite of

CYFD’s statement, we conclude that the questions of whether and under what circumstances

children were placed at TBR by CYFD present disputed material factual issues.2

{19} In its pleadings related to the motion for summary judgment, CYFD did not respond
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to Plaintiffs’ assertions that CYFD sent children in its care to TBR or that CYFD has or had

a financial arrangement with TBR. The district court did not set out the undisputed facts on

which it relied in granting summary judgment.

{20} In reviewing a motion for summary judgment, the district court “must resolve all

reasonable inferences in favor of the nonmovant and must view the pleadings, affidavits,

depositions, answers to interrogatories and admissions in a light most favorable to a trial on

the merits.” Garcia-Montoya v. N.M. Treasurer’s Office, 2001-NMSC-003, ¶ 7, 130 N.M.

25, 16 P.3d 1084. “Summary judgment is an extreme remedy that should be imposed with

caution[,]” and is improper if the nonmovant demonstrates “a reasonable doubt as to the

existence of a genuine factual issue.” Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶¶ 12,

22, 135 N.M. 539, 91 P.3d 58 (internal quotation marks and citation omitted). Here,

Plaintiffs’ assertions raise a reasonable doubt as to the existence of material factual issues,

to wit, whether CYFD placed children in its care at TBR.

CONCLUSION

{21} We conclude that questions of material fact preclude summary judgment on the issue

of whether the TCA’s building waiver applies to permit Plaintiffs’ suit. We hold that

summary judgment should have been denied. See Espinoza v. Town of Taos, 1995-NMSC070, ¶ 5, 120 N.M. 680, 905 P.2d 718 (“Summary judgment is inappropriate when resolution

of a factual dispute is required to determine a legal question before the [c]ourt.”). We

therefore reverse and remand for further proceedings.

{22} IT IS SO ORDERED.

____________________________________

MICHAEL D. BUSTAMANTE, Judge

I CONCUR:

____________________________________

MICHAEL E. VIGIL, Chief Judge

____________________________________

JONATHAN B. SUTIN, Judge