2020 New Mexico Statutes
Chapter 32A - Children's Code
Article 4 - Child Abuse and Neglect
Section 32A-4-28 - Termination of parental rights; adoption decree.

A. In proceedings to terminate parental rights, the court shall 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.

B. The court shall terminate parental rights with respect to a child when:

(1) there has been an abandonment of the child by his parents;

(2) the child has been a neglected or abused child as defined in the Abuse and Neglect Act and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts by the department or other appropriate agency to assist the parent in adjusting the conditions that render the parent unable to properly care for the child. The court may find in some cases that efforts by the department or another agency are unnecessary, when:

(a) there is a clear showing that the efforts would be futile; or

(b) the parent has subjected the child to aggravated circumstances; or

(3) the child has been placed in the care of others, including care by other relatives, either by a court order or otherwise and the following conditions exist:

(a) the child has lived in the home of others for an extended period of time;

(b) the parent-child relationship has disintegrated;

(c) a psychological parent-child relationship has developed between the substitute family and the child;

(d) if the court deems the child of sufficient capacity to express a preference, the child no longer prefers to live with the natural parent;

(e) the substitute family desires to adopt the child; and

(f) a presumption of abandonment created by the conditions described in Subparagraphs (a) through (e) of this paragraph has not been rebutted.

C. A finding by the court that all of the conditions set forth in Subparagraphs (a) through (f) of Paragraph (3) of Subsection B of this section exist shall create a rebuttable presumption of abandonment.

D. The department shall not file a motion, and shall not join a motion filed by another party, to terminate parental rights when the sole factual basis for the motion is that a child's parent is incarcerated.

E. The termination of parental rights involving a child subject to the federal Indian Child Welfare Act of 1978 shall comply with the requirements of that act.

F. If the court finds that parental rights should be terminated; that the requirements for the adoption of a child have been satisfied; that the prospective adoptive parent is a party to the action; and that good cause exists to waive the filing of a separate petition for adoption, the court may proceed to grant adoption of the child, absent an appeal of the termination of parental rights. The court shall not waive any time requirements set forth in the Adoption Act [Chapter 32A, Article 5 NMSA 1978] unless the termination of parental rights occurred pursuant to the provisions of Paragraph (3) of Subsection B of this section. The court may enter a decree of adoption only after finding that the party seeking to adopt the child has satisfied all of the requirements set forth in the Adoption Act. Unless otherwise stipulated by all parties, an adoption decree shall take effect sixty days after the termination of parental rights, to allow the department sufficient time to provide counseling for the child and otherwise prepare the child for the adoption. The adoption decree shall conform to the requirements of the Adoption Act and shall have the same force and effect as other adoption decrees entered pursuant to that act. The court clerk shall assign an adoption case number to the adoption decree.

History: 1978 Comp., § 32A-4-28, enacted by Laws 1993, ch. 77, § 122; 1995, ch. 206, § 25; 1997, ch. 34, § 9; 1999, ch. 77, § 10; 2001, ch. 41, § 1; 2005, ch. 189, § 51.

Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901.

The 2005 amendment, effective June 17, 2005, deleted former Subsection B(2)(c), which provided that the court may find that efforts to assist the parent care for the child are unnecessary when the parental rights of the parent to a sibling of the child have been terminated involuntarily.

The 2001 amendment, effective July 1, 2001, added Subsection D and renumbered the remaining subsections accordingly.

The 1999 amendment, effective July 1, 1999, in Subsection B(2), added the Subparagraph (a) designation, deleted "or when a parent has caused great bodily harm to the child or great bodily harm or death to the child's sibling; or" from the end of Subparagraph (a), and added Subparagraphs (b) and (c).

The 1997 amendment, effective July 1, 1997, added "including the likelihood of the child being adopted if parental rights are terminated" at the end of Subsection A, inserted "or when a parent has caused great bodily harm to the child or great bodily harm or death to the child's sibling" near the end of Paragraph B(2), substituted "(a) through (f)" for "(a) through (e)" in Subsection C, and made minor stylistic changes in Subsections B and E.

The 1995 amendment, effective July 1, 1995, added Subsection B(3)(f), inserted "Subparagraphs (a) through (e) of" following "set forth in" in Subsection C, rewrote Subsection E, and made minor stylistic changes throughout the section.

I. GENERAL CONSIDERATION.

Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-54 NMSA 1978 have been included in the annotations to this section.

Application of Subsection B. — Subsection (B)(1) is to be used to terminate parental rights by a finding of abandonment where a parent is absent prior to termination. Subsection (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 the Matter of Grace H., 2014-NMSC-034.

Where respondent did not receive notice of and did not appear at hearings leading to termination of respondent's parental rights; the district court's permanency order incorporated a family treatment plan for respondent that had a completion date of May 1, 2010; in March 2010, the department filed a motion to terminate respondent's parental rights; in April 2010, one month before the initial termination hearing, when respondent learned that the department had custody of respondent's child, respondent met with the department and told the department that respondent wanted custody of the child; and the district court concluded that respondent had abandoned the child under Subsection (B)(1) as grounds for termination of respondent's parental rights, respondent's parental rights were improperly terminated under Subsection (B)(1) because respondent was entitled to assistance and treatment under Subsection (B)(2). In the Matter of Grace H., 2014-NMSC-034.

Improper application of Subsection B. — In termination of parental rights case, where the record established that father was present prior to the district court's termination and that father expressed a legitimate desire to take responsibility for the child, the district court's use of 32A-4-28(B)(1) NMSA 1978 was improper because 32A-4-28(B)(1) applies only where a parent is absent prior to termination, and conversely, 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. State ex rel. CYFD v. Alfonso M.E., 2016-NMCA-021.

Application of Subsection B when CYFD proceeds under two theories. — Subsection B(1) should be used to terminate parental rights where a parent is completely absent prior to termination, while Subsection B(2) should be used where a parent is present and expresses a legitimate desire to take responsibility for a child prior to termination. Where the children, youth and families department proceeds under both theories and there is an adjudication of neglect under Subsection B(2), the application of Subsection B(1) is precluded. State ex rel. Children, Youth & Families Dep't v. Melvin C., 2015-NMCA-067.

Where father indicated his desire to reunify with his child and his willingness to work a treatment plan, and where the children, youth and families department stipulated to father's no contest plea to the neglect allegation, the application of Subsection B(1) of this section was inappropriate because the record reflected father's legitimate desire to take responsibility for his child and did not support a finding that father was completely absent. State ex rel. Children, Youth & Families Dep't v. Melvin C., 2015-NMCA-067.

Kinship guardians possess the rights of biological parents. — A kinship guardian appointed under the Kinship Guardianship Act, 40-10B-1 NMSA 1978 et seq., possesses the same legal rights and responsibilities of a biological parent and may not be involuntarily dismissed as a party from a termination of parental rights case under the Abuse and Neglect Act, 32A-4-1 NMSA 1978 et seq., without first revoking the kinship guardianship according to the procedures specified in the Kinship Guardianship Act and the rules of evidence, but is not a necessary and indispensable party as defined by Rule 1-019 NMRA. State ex rel. Children, Youth & Families Dep't v. Djamila B., 2015-NMSC-003.

Where guardian was appointed by a family court as a kinship guardian pursuant to the Kinship Guardianship Act, 40-10B-1 NMSA 1978 et seq., and where Children, Youth and Families Department (CYFD) brought abuse and neglect proceedings in children's court against guardian and children's biological parents pursuant to the Abuse and Neglect Act, 32A-4-1 NMSA 1978 et seq., the kinship guardian, who possesses the same legal rights and responsibilities of a biological parent, must be a party to a termination of parental rights hearing under the Abuse and Neglect Act, but is not a necessary and indispensable party as defined by Rule 1-019 NMRA. State ex rel. Children, Youth & Families Dep't v. Djamila B., 2015-NMSC-003.

Kinship guardian is a necessary and indispensable party. — A kinship guardian under the Kinship Guardianship Act, 40-10B-1 NMSA 1978 et seq., who is named as a respondent in an abuse and neglect proceeding is a necessary and indispensable party in the abuse and neglect case and may not be involuntarily dismissed from the case without first revoking the kinship guardianship according to the procedures specified in the Kinship Guardianship Act. State ex rel. CYFD v. Djamila B., 2014-NMCA-045, cert. granted, 2014-NMCERT-004.

Where the guardian was appointed as kinship guardian for the children pursuant to the Kinship Guardianship Act, 40-10B-1 NMSA 1978 et seq.; the children lived with the guardian; the department filed a neglect and abuse petition under the Abuse and Neglect Act, 32A-4-1 NMSA 1978 et seq., against the guardian and the children's parents; the district court adopted the department's permanency plan to reunify the children with the guardian; six months later, the district court changed the permanency plan from reunification to adoption and dismissed the guardian from the proceedings; and the guardian's kinship guardianship had not been revoked pursuant to the Kinship Guardianship Act, because the permanency plan included a proposed adoption, the guardian was a necessary and indispensable party to the abuse and neglect case so long as the guardian's kinship guardianship remained in effect. State ex rel. CYFD v. Djamila B., 2014-NMCA-045, cert. granted, 2014-NMCERT-004.

Best-interests-of-the-child standard. — The statutory mandate to give primary consideration to the best interests of the child in a proceeding to terminate parental rights does not deny the fundamental interests of the parents in the care, custody and control of the child. State ex rel. Children, Youth & Families Dep't v. John R., 2009-NMCA-025, 145 N.M. 636, 203 P.3d 167.

In abuse and neglect or termination proceedings, translations of court documents and interpreters do not have to be provided as a matter of law to non-English speaking respondents. State ex rel., Children, Youth & Families Dep't v. William M., 2007-NMCA-055, 141 N.M. 765, 161 P.3d 262, cert. denied, 2007-NMCERT-005, 141 N.M. 762, 161 P.3d 259.

Procedure after adjudication of neglect. — Termination of parental rights may be based on abandonment, abuse or neglect, or presumptive abandonment. After a court makes a finding of neglect in an adjudicatory proceeding, the children, youth and families department has a statutory duty to make reasonable efforts to assist a parent with reunification, and where there is a finding of neglect or abuse under Subsection B(2) of this section, the plain language of the statute requires a dispositional hearing and the creation of a treatment plan therein. State ex rel. Children, Youth & Families Dep't v. Melvin C., 2015-NMCA-067.

Where father entered a no contest plea to an allegation of neglect, and the district court entered a finding of neglect, it was error for the district court to proceed with a termination of parental rights hearing based on an allegation of abandonment. Although abuse or neglect and abandonment are separate and independent grounds for the termination of parental rights, where there is a finding of neglect or abuse under Subsection B(2) of this section, the statute requires a dispositional hearing and the creation of a treatment plan therein. The district court, having never acted to assess the propriety of a treatment plan and having never ordered that one be created, erred by failing to fulfill its statutory duties under the adjudication of neglect that it had previously entered as it was required to do by 32A-4-28(B)(2). State ex rel. Children, Youth & Families Dep't v. Melvin C., 2015-NMCA-067.

Procedure after reversal of abuse and neglect adjudication. — After an adjudication of abuse and neglect is reversed during termination of parental rights proceedings, the district court, on remand, retains jurisdiction to determine whether the parent prevailing on appeal should regain custody of the child. The court and CYFD must put a transition plan in place to attempt to return the child to the parent. CYFD may seek a termination of parental rights by filing new or current allegations of abuse, neglect or abandonment. To prevail on new allegations, the department must demonstrate by clear and convincing evidence that the prior reversed adjudications and CYFD's own actions did not contribute to the new or current allegations of abuse or neglect against the parent. The court must determine whether the new allegations are supported by clear and convincing evidence. The court must make findings with respect to whether the new allegations are actually a result of the prior adjudication against the parent or whether the allegations actually constitute new incidences of abuse or neglect. If the court does not find clear and convincing evidence of abuse or neglect based on the new allegations, the court must expedite the transition of the child to the parent, putting in place any services or plans that may assist in the transition. If the court determines that there is clear and convincing evidence of new abuse or neglect by the parent, the court must approve a treatment plan for the parent or find that further efforts by CYFD would be futile. If a treatment plan is approved, the court must review compliance with the plan as provided in the Abuse and Neglect Act. If CYFD establishes that further efforts to assist the parent would be futile, then they may seek termination of parental rights. State ex rel., Children, Youth & Families Dep't v. Benjamin O., 2007-NMCA-070, 141 N.M. 692, 160 P.3d 601.

Limitation on evidence. — In a termination of parental rights case, where the children, youth and families department's (department) first motion to terminate father's parental rights was denied due to lack of clear and convincing evidence that the statutory requirements for termination had been satisfied, the district court did not err in allowing the department to present evidence of events preceding the first hearing on the first motion to terminate parental rights in a subsequent termination of parental rights hearing, because to ignore all preceding evidence when there is no dispute as to the adjudication of abuse or neglect, which could include a parent's history of compliance, information about the causes and conditions that led to the child being taken into custody, and attempts to alleviate those causes and conditions, would be to limit the district court's access to information that is needed to appropriately assess whether a parent's parental rights should be terminated. State ex rel. CYFD v. William C., Jr., 2017-NMCA-058.

Constitutionality. — A similar statute was not constitutionally defective by failing to provide for a defense of mental illness. In re Jason Y., 1987-NMCA-120, 106 N.M. 406, 744 P.2d 181.

A similar statute was not vague or ambiguous. In re Samantha D., 1987-NMCA-082, 106 N.M. 184, 740 P.2d 1168, cert. denied, 106 N.M. 174, 740 P.2d 1158.

No right to jury trial. — There is no right to a trial by jury in termination of parental rights proceedings provided by either the Children's Code or the state constitution. State ex rel. Children, Youth & Families Dep't v. T.J., 1997-NMCA-021, 123 N.M. 99, 934 P.2d 293, cert. denied, 122 N.M. 808, 932 P.2d 498.

Effect of Child Custody Jurisdiction Act. — The former New Mexico Child Custody Jurisdiction Act (now see Sections 40-10A-101 to 40-10A-403 NMSA 1978) does not supersede or invalidate a proceeding to terminate parental rights. Laurie R. v. N.M. Human Servs. Dep't, 1988-NMCA-055, 107 N.M. 529, 760 P.2d 1295.

Applicability of the federal Indian Child Welfare Act. — In termination of parental rights proceeding, the federal Indian Child Welfare Act did not apply where father failed to show that his children were eligible for membership in an Indian tribe, and therefore did not satisfy the definition of Indian child as set forth in the federal law. State ex rel. CYFD v. Nathan H., 2016-NMCA-043, cert. denied.

Applicability of Americans with Disabilities Act. — Even though the federal Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) might apply in the context of abandonment under this section if, because of a violation thereof, the parent lacked responsibility for destruction of the parent-child relationship, there was no violation in this case since the mother refused to cooperate or participate voluntarily in treatment plans. State ex rel. Children, Youth & Families Dep't v. John D., 1997-NMCA-019, 123 N.M. 114, 934 P.2d 308.

Adequacy of notice when parent represented by counsel. — The human services department was required to serve a parent's attorney with notice of the department's action to terminate parental rights, when the attorney was representing him in a separate neglect action before the children's court. Ronald v. State ex rel. Human Servs. Dep't, 1990-NMSC-071, 110 N.M. 454, 797 P.2d 243.

Assistance of counsel. — The appointment of one attorney to represent both the mother and father in a proceeding for termination of parental rights may create a conflict of interest for the attorney. State ex rel. Children, Youth & Families Dep't v. Tammy S., 1999-NMCA-009, 126 N.M. 664, 974 P.2d 158.

Efforts to assist parents. — Because parenting is a fundamental liberty interest, reasonable efforts must be made by the department to assist the parent before parental rights may be terminated. In re Elizabeth H., 2002-NMCA-061, 132 N.M. 299, 47 P.3d 859, cert. denied, 132 N.M. 397, 49 P.3d 76.

Reasonable efforts by the department to assist a parent vary with a number of factors, including the level of cooperation demonstrated by the parent and the recalcitrance of the problems that render the parent unable to provide adequate parenting. In re Elizabeth H., 2002-NMCA-061, 132 N.M. 299, 47 P.3d 859, cert. denied, 132 N.M. 397, 49 P.3d 76.

Case law. — The provisions of Section 32A-4-28B NMSA 1978 which permit the court to relieve the state of the burden of engaging in reasonable efforts to assist the parent in adjusting the conditions that render the parent unable to properly care for the child and relieve the state of the burden of proving that such efforts would not result in a change of the conditions and causes of the neglect or abuse are not unconstitutional as denial of a parent's right to due process as a termination of parental rights hearing. State ex rel. Children, Youth and Families Dep't v. Amy B., 2003-NMCA-017, 133 N.M. 136, 61 P.3d 845.

Department not required to assist parent where abandonment's effects are unremediable. — Where abandonment by a father is proven, and the results of the father's past conduct are not remediable, the department is not required to show that it has made efforts to assist the father in remedying the problem. State ex rel. Dep't of Human Servs. v. Peterson, 1986-NMSC-001, 103 N.M. 617, 711 P.2d 894, cert. denied, 103 N.M. 525, 710 P.2d 92.

Aggravating circumstances relieved the department of the obligation to make efforts to reunify the family. — Where the department filed proceedings to terminate the parent's parental rights to the child; the parent had a chronic illegal drug abuse problem, but never entered or completed a drug treatment plan, never had a home or employment, failed to complete work on a GED, and had been in and out of jail since the beginning of the case; the child had a high level of methamphetamine in the child's system when the child was taken into custody by the department; the parent's parental rights to the child's sibling had previously been terminated; the district court found that there were aggravating circumstances based on the prior termination of the parent's parental rights to the child's sibling, relieved the department of its obligation to make efforts to reunify the family, and terminated the parent's parental rights to the child; the parent's appeal of the prior termination of the parent's parental rights to the child's sibling was pending and unresolved during the neglect and abuse proceeding regarding the child; and the parent claimed that the parent's right to due process had been violated by the district court's finding of aggravated circumstances when the prior termination had not been resolved on appeal, the parent's due process rights were not violated. State ex rel. CYFD v. Raquel M., 2013-NMCA-061, 303 P.3d 865, cert. quashed, 2013-NMCERT-007.

Notice required that parent's relation with partner is a condition of abuse and neglect. — When the behavior of a parent's partner is such that it is difficult for a person of ordinary intelligence and sensibilities to realize that the partner's self-centeredness or other characteristic is harming the child, the department must put the parent on notice that the parent's relation with the partner is a condition and cause of the abuse and neglect of the child and that a continued relation with the partner is grounds for termination of the parent's parental rights in order to satisfy the department's duty to engage in reasonable efforts to assist the parent in adjusting the conditions that render the parent unable to properly care for the child. State ex rel. Children, Youth & Families Dep't v. Joseph M., 2006-NMCA-029, 139 N.M. 137, 130 P.3d 198.

Termination of parental rights because of neglect or abuse does not require a prior adjudication of neglect. State ex rel. Dep't of Human Servs. v. Ousley, 1985-NMCA-035, 102 N.M. 656, 699 P.2d 129.

Injury to child not condition precedent. — While a court may not speculate as to the future care of a child, the primary consideration is the best interests and welfare of the child, and the court should not be forced to refrain from taking action until each child suffers an injury. It is not necessary to wait until a child has been injured, since knowingly, intentionally, or negligently placing a child in danger constitutes abuse and is a ground for terminating parental rights. State ex rel. Dep't of Human Servs. v. Tommy A. M., 1987-NMCA-043, 105 N.M. 664, 735 P.2d 1170.

II. PARENTAL RIGHTS.

Due process. — Minimum consideration of due process required court to inquire on the record whether mother waived certain due process rights and failure to do so was fundamental error. A mother was denied due process when her parental rights were terminated at a hearing that she did not attend and at which only a proffer was made of the evidence supporting the termination. State ex rel. Children, Youth & Families Dep't v. Stella P., 1999-NMCA-100, 127 N.M. 699, 986 P.2d 495.

The trial court has a responsibility to inquire into whether mother has waived her due process rights. If the parties were not prepared to address the issue, the trial court should have ordered a brief continuance. Such a continuance will give the parties an opportunity to propose arrangements for mother to participate even though she cannot be physically present. State ex rel. Children, Youth, & Families Dep't v. Steven, 1999-NMCA-141, 128 N.M. 304, 992 P.2d 317.

Sufficient procedural protections of non-English speaking parent. — Father, whose primary language was Spanish, was afforded adequate procedural protections to ensure that he had adequate notice and an opportunity to be heard, where the father was represented by a court-appointed attorney who spoke Spanish and could discuss the case with him; the father appeared by telephone at the adjudicatory hearing and in person at all other in-court proceedings with the assistance of a certified interpreter; CYFD used a Spanish-speaking social worker on occasion to assist in communicating with the father; and the father was apprized of the critical aspects of the case throughout the proceedings by his counsel, the department, and the court. State ex rel., Children, Youth & Families Dep't v. William M., 2007-NMCA-055, 141 N.M. 765, 161 P.3d 262, cert. denied, 2007-NMCERT-005, 141 N.M. 762, 161 P.3d 259.

Due process rights of parents generally. — Because the right to raise one's child is a fundamental right protected by the fourteenth amendment to the United States constitution, termination proceedings must be conducted in a constitutional manner. As such, a parent's legal relationship with his or her child cannot be severed without due process of law, which requires that termination proceedings be conducted with scrupulous fairness to the parent. State ex rel. Children, Youth and Families Dep't v. Mafin M., 2003-NMSC-015, 133 N.M. 827, 70 P.3d 1266.

Parent's due process rights were not violated. — Where petitioner was not given notice or an opportunity to participate in two permanency hearings in an abuse and neglect proceeding; after the court's approval of a permanency plan, the court terminated petitioner's parental rights on the grounds of abandonment; and petitioner claimed that the court erred in terminating petitioner's parental rights without first providing petitioner with notice and an opportunity to participate in the permanency hearings regarding abuse and neglect, which could have altered the court's unchallenged findings of abandonment, petitioner did not suffer an abuse of due process because abuse and neglect are separate and independent grounds for termination of parental rights. State ex rel. CYFD v. Christopher B., 2014-NMCA-016.

Where the parent claimed that the termination of the parent's parental rights violated due process because the department failed to make reasonable efforts to assist the parent to adjust to the causes and conditions that led to the department taking custody of the child; specifically, the parent claimed that the department created a near-insurmountable obstacle to the parent's adjustment by placing the child in a home in Las Vegas where the case was being managed and by failing to create a treatment plan that accommodated the parent's learning disorder and cognitive limitations; the parent lived on Santa Fe; the department transported the child to Santa Fe twice a week for supervised visits and the parent was provided transportation to Las Vegas for additional visits; the parent was admitted to a residential treatment center where the parent underwent a psychiatric evaluation and a psychosocial assessment; and the department provided individual dialectical behavior therapy and emotional literacy and mindfulness training by a therapist who was aware of the parent's history of ADHD and special education, the department made a reasonable efforts to assist and to accommodate the parent's limitations and the parent was not denied due process. State ex rel. Children, Youth and Families Dep't v. Laura J., 2013-NMCA-057, 301 P.3d 860, cert. denied, 2013-NMCERT-003.

Mother's due process rights were not denied where witness's testimony was aided by an outline prepared by attorney. — In a termination of parental rights proceeding, where the permanency planning worker from the children, youth and families department (CYFD) testified that she prepared for her testimony by reading an outline prepared by CYFD's attorney which he emailed to her two days before the hearing, the district court did not err in denying mother's motion to strike the witness's testimony based on a violation of due process, because the outline, created from the witness's family treatment plan and court reports, were part of the record and available to mother's attorney, nothing in the record indicated that the outline or the witness's testimony was inaccurate or incorrect, and the district court sufficiently corrected any alleged impropriety in CYFD's handling of its witnesses by allowing for cross-examination and voir dire of the witness, and therefore the risk to mother of an erroneous deprivation of her parental rights was low. State ex rel. CYFD v. Rosalia M., 2017-NMCA-085.

Witness's testimony aided by an outline prepared by attorney did not result in structural error. — In a termination of parental rights proceeding, where the permanency planning worker from the children, youth and families department (CYFD) testified that she prepared for her testimony by reading an outline prepared by CYFD's attorney which he emailed to her two days before the hearing, the witness's testimony did not render the entire proceeding fundamentally unfair, because the witness only read and relied on the portion of the outline that pertained to her testimony, which was created from her own court reports and family treatment plan, and mother's attorney was provided an opportunity to question and to cross-examine the witness which corrected any alleged impropriety in CYFD's handling of its witnesses. State ex rel. CYFD v. Rosalia M., 2017-NMCA-085.

Due process rights of incarcerated parent in termination hearing. — Because a fundamental liberty interest is implicated in proceedings involving the termination of parental rights, a parent who is incarcerated and is unable to attend a hearing on a petition to terminate parental rights is entitled to procedural due process, including the right to review and challenge the evidence presented against him and to present evidence on his behalf. State ex rel. Children, Youth & Families Dep't v. Ruth Anne E., 1999-NMCA-035, 126 N.M. 670, 974 P.2d 164.

Incarcerated father's due process rights were not violated where he was given the opportunity to participate in a termination hearing via telephone, despite his insistence that he be physically present in the courtroom. State ex rel. Children, Youth & Families Dep't v. Christopher L., 2003-NMCA-068, 133 N.M. 653, 68 P.3d 199.

Right of custodians to termination proceedings. — That the nonparent custodians of a child were "acting as parents" pursuant to Section 40-10-3H NMSA 1978 (now 40-10A-102(13) NMSA 1978) because they had physical custody of the child and claimed a right to custody did not have applicability in a neglect or abuse case so as to entitle the custodians to the protections afforded in a termination of parent rights case. In re Agnes P., 1990-NMCA-091, 110 N.M. 768, 800 P.2d 202, cert. denied, 110 N.M. 749, 799 P.2d 1121.

Plea of nolo contendere to abuse and neglect charge. — The trial court's taking judicial notice of a mother's nolo contendere plea in a prior abuse and neglect case did not deprive the mother of due process since the court heard testimony and made its findings based on the evidence presented, rather than simply relying on the prior adjudication. State v. Eventyr J., 1995-NMCA-087, 120 N.M. 463, 902 P.2d 1066.

III. PROOF.

Efforts of the department. — The court is justified in terminating parental rights where it is clear after several years of effort by the department that the child will not thrive, and the causes of neglect and abuse are unlikely to change in the foreseeable future. State ex rel. Human Servs. Dep't v. Penny J., 1994-NMCA-143, 119 N.M. 328, 890 P.2d 389, cert. denied, 119 N.M. 20, 888 P.2d 466

Evidence of negect of siblings. — Although child was taken into CYFD custody at the time of birth, and was therefore never in parents' care, the court could rely on evidence of neglect or abuse to the other children as a factor in determining whether parental rights to child should be terminated. State ex rel. Children, Youth & Families Dep't v. David F., Sr., 1996-NMCA-018, 121 N.M. 341, 911 P.2d 235, cert. denied, 121 N.M. 242, 910 P.2d 318.

Parent's right to raise child to be considered. — While a court must give primary consideration to the physical, mental and emotional welfare and needs of the child, this cannot be done to the utter exclusion of consideration of the rights of a parent to raise her children. State ex rel. Dep't of Human Servs. v. Natural Mother, 1981-NMCA-103, 96 N.M. 677, 634 P.2d 699.

Relative merits of parental environments not considered. — The process of making a determination of termination of parental rights does not include a comparison of the relative merits of the environments provided by the foster parents and by the natural parents. The only consideration is whether the environment provided for the children by the parents is and will be adequate. State ex rel. Dep't of Human Servs. v. Natural Mother, 1981-NMCA-103, 96 N.M. 677, 634 P.2d 699.

The fact that a child might be better off in a different environment is not a basis for termination of parental rights. State ex rel. Department of Human Servs. v. Williams, 1989-NMCA-008, 108 N.M. 332, 772 P.2d 366 (Ct. App.), cert. denied, 108 N.M. 273, 771 P.2d 981 (1989).

Failure to assist parents. — Where the department's treatment plans treated the parents as a unit with the goal of reunification of the family; one parent failed to make progress toward becoming an adequate parent; the other parent made positive progress; and the department did not provide a specific treatment plan or specifically alert the parent who was progressing of the consequences of staying with the parent who was not progressing, the court erred in terminating the parental rights of the parent who was progressing because there was no clear and convincing evidence that it was unlikely that the parent who was progressing would be able to properly parent the children in the forseeable future. State ex rel. Children, Youth & Families Dep't v. Joseph M., 2006-NMCA-029, 139 N.M. 137, 130 P.3d 198.

Mere comparative analysis of prospective homes is improper in proceedings seeking to terminate parental rights. In re Doe, 1982-NMCA-094, 98 N.M. 340, 648 P.2d 798, cert. denied sub nom, Cook v. Brownfield, 98 N.M. 336, 648 P.2d 794.

Futile efforts to preserve family not required. — When it becomes clear that preserving the family is not compatible with protecting the child, further efforts at preservation are not required. Further efforts to assist the parents are not required when there is a clear showing that they would be futile. In re Kenny F., 1990-NMCA-004, 109 N.M. 472, 786 P.2d 699, overruled on other grounds by In re Adoption of J.J.B., 1993-NMCA-145, 117 N.M. 31, 868 P.2d 1256.

Advice regarding right to appointed counsel. — A district court must advise a parent in termination proceedings under the adoption provisions of the Children's Code that the parent is entitled to have counsel appointed if indigency can be established. The court's failure to advise a parent that the parent would be entitled to appointed counsel if the parent can establish indigency constitutes fundamental error. Chris L. v. Vanessa O., 2013-NMCA-107.

Where, in an adoption proceeding, the petitioners sought to terminate the parental rights of the child's biological parent; the parent appeared in the proceeding pro se; the district court told the parent that the parent would be required to follow the rules and that the parent could hire an attorney at any time during the proceedings, but failed to advise the parent that the court would appoint counsel for the parent if the parent was indigent and requested counsel, the failure of the court to advise the parent that the parent would be entitled to appointed counsel if the parent could establish indigency constituted fundamental error. Chris L. v. Vanessa O., 2013-NMCA-107.

"Reasonable efforts". — Sections 32A-4-2C, 32A-4-22C, and 32A-4-28B(2) NMSA 1978 are constitutional facially and as applied to a mother, whose parental rights were terminated without the state making reasonable efforts toward family reunification, where the mother had previously had parental rights terminated as to another child and no progress was evident in the mother's efforts to kick a four-year drug abuse problem. State ex rel. Children, Youth & Families Dep't v. Amy B., 2003-NMCA-017, 133 N.M. 136, 61 P.3d 845.

Abandonment by father does not mandate termination. — When a child has been abandoned by a father, i.e., when the parental relationship between father and child is nonexistent, it is not mandatory that the court terminate parental rights. The decision rests within the judicial discretion of the court. Wasson v. Wasson, 1978-NMCA-092, 92 N.M. 162, 584 P.2d 713.

Abandonment during incarceration. — Whether "abandonment" has occurred during incarceration is a question of fact to be determined on a case by case basis. Not every act of a parent which results in incarceration, nor every criminal act perpetrated between parents, can be deemed to be abandonment as a matter of law. In re Doe, 1982-NMCA-183, 99 N.M. 278, 657 P.2d 134, cert. denied, 99 N.M. 358, 658 P.2d 443.

Abandonment rests upon incarceration coupled with other factors such as parental neglect, lack of affection shown toward the child, failure to contact the child, financially support the child if able to do so, as well as disregard for the general welfare of the child. In re Doe, 1982-NMCA-183, 99 N.M. 278, 657 P.2d 134, cert. denied, 99 N.M. 358, 658 P.2d 433.

Act of selling children constitutes abandonment of them as a matter of law. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175.

When father, in child's presence, murders child's mother, the district court may terminate the father's parental rights. In re Doe, 1982-NMCA-183, 99 N.M. 278, 657 P.2d 134, cert. denied, 99 N.M. 358, 658 P.2d 443.

Summary judgment improper. — In termination proceeding, mother's contentions as to alleged constructive abandonment, her fitness as a parent, and the state's efforts to assist her in complying with rehabilitation plan were material factual issues which were sufficient to defeat state's summary judgment motion. State ex rel. Children, Youth & Families Dep't v. Erika M., 1999-NMCA-036, 126 N.M. 760, 975 P.2d 373.

"Neglect" by noncustodial parent. — Termination of parental rights by reason of "neglect" requires a showing by clear and convincing evidence of culpability on the part of the parent through intentional or negligent disregard of the child's well-being and proper needs. If the parents are separated and living in different communities, in order to hold a noncustodial parent responsible for the neglect of the parent having actual physical custody of the child, it must be established that the noncustodial parent knew or should have known of the condition of the child, that the child was without proper care by the custodial parent because of the faults or habits of that parent, and when able to do so, to provide that care. In re Adoption of J.J.B., 1993-NMCA-145, 117 N.M. 31, 868 P.2d 1256, rev'd in part on other grounds, Roth v. Bookert, 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995).

Department may not use psychologists' testimony where it sought examination. — If the human services department induces a person to be examined and counseled by psychologists, something she would not do but for such inducement, the department is estopped by such conduct to use the psychologists' testimony. In re Doe, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510.

State must prove one of specific statutory grounds. — In order to terminate a parent's rights, the state must plead and prove one of the specific grounds for termination set out in the statute. State ex rel. Dep't of Human Servs. v. Williams, 1989-NMCA-008, 108 N.M. 332, 772 P.2d 366, cert. denied, 108 N.M. 273, 771 P.2d 981.

Judicial standard for terminating parental rights. — The court shall terminate parental rights with respect to a neglected child when the court finds by clear and convincing evidence that the conditions and causes of the neglect are unlikely to change in the foreseeable future despite reasonable efforts by the children, youth and families department to assist the parent in adjusting the conditions that render the parent unable to properly care for the child. State ex rel. Children, Youth & Families Dep't v. Jerry K., 2015-NMCA-047, cert. denied, 2015-NMCERT-004.

Where incarcerated father, beginning a thirty-five year sentence for sex crimes, conceded that his children were neglected pursuant to 32A-4-2E(4) NMSA 1978, in that he was unable to discharge his responsibilities to and for his children because of incarceration, and where the district court permitted father to provide evidence that he had given placement alternatives and information to the children, youth and families department (department) and evidence about whether the department made reasonable efforts to assist father, the district court did not err in concluding that the conditions and causes of the neglect were unlikely to change in the foreseeable future despite the department's reasonable efforts to facilitate a treatment plan, and that it was in the children's best interest to be adopted and not reunified with father. State ex rel. Children, Youth & Families Dep't v. Jerry K., 2015-NMCA-047, cert. denied, 2015-NMCERT-004.

Grounds for termination to be shown by clear and convincing evidence. — In proceedings seeking the termination of parental rights, the grounds for any attempted termination must be proven by clear and convincing evidence. The clear and convincing evidence standard requires proof stronger than a mere "preponderance" and yet something less than "beyond a reasonable doubt." In re Doe, 1982-NMCA-094, 98 N.M. 340, 648 P.2d 798, cert. denied sub nom. Cook v. Brownfield, 98 N.M. 336, 648 P.2d 794.

Quantum of proof required concerning evidence as to parents' unfitness must be such as to clearly and convincingly show parents' unfitness. A mere preponderance of the evidence is insufficient. Huey v. Lente, 1973-NMSC-098, 85 N.M. 597, 514 P.2d 1093.

Because of the fundamental rights involved in a termination proceeding, the burden of proof of clear and convincing evidence is something stronger than a mere preponderance and yet something less than beyond a reasonable doubt. State ex rel. Dep't of Human Servs. v. Natural Mother, 1981-NMCA-103, 96 N.M. 677, 634 P.2d 699.

The findings to support termination must be supported by clear and convincing evidence. State ex rel. Dep't of Human Servs. v. Natural Mother, 1981-NMCA-103, 96 N.M. 677, 634 P.2d 699.

A trial court's decision in termination of parental rights cases will be upheld if its findings are supported by clear and convincing evidence and if it applied the proper rule of law. State ex rel. Dep't of Human Servs. v. Minjares, 1982-NMSC-065, 98 N.M. 198, 647 P.2d 400.

Evidence that the mother had continually neglected her children by failing to complete and progress in substance abuse treatment and by continuing to place herself in situations involving domestic violence and suspected criminal activity was sufficient to support a finding of neglect. State ex rel. Children, Youth & Families Dep't v. Vanessa C., 2000-NMCA-025, 128 N.M. 701, 997 P.2d 833, cert. denied, 128 N.M. 690, 997 P.2d 822.

Clear and convincing evidence supported termination. — Where the parent was abusing drugs and physically neglecting the child; the child tested positive for opiates; the parent was unsuccessfully discharged from an addiction-recovery program; and the parent failed to keep home visit, therapy, and urinalyses appointments, tested positive for marijuana; failed to attend substance abuse group meetings; was not able to provide a safe and stable living environment for the parent or the child, failed to comply with the department's treatment plan and to use the department's recommended services, and lacked a commitment to the child, clear and convincing evidence supported termination of the parent's parental rights. State ex rel. Children, Youth and Families Dep't v. Laura J., 2013-NMCA-057, 301 P.3d 860, cert. denied, 2013-NMCERT-003.

Separate finding of parental unfitness not required for termination. — Parental unfitness is inherent in a finding by the court of any of the statutory conditions: abandonment, neglect or abuse; and no separate showing or finding by the court with reference to unfitness is necessary. In re Adoption of J.J.B., 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995).

Clear and convincing evidence necessary to support abandonment. — In proceedings seeking to terminate parental rights on grounds of abandonment, the court must be satisfied, by clear and convincing evidence, that the best interests of the child will be served by severing the parent-child relationship. In re Samantha D., 1987-NMCA-082, 106 N.M. 184, 740 P.2d 1168, cert. denied, 106 N.M. 174, 740 P.2d 1158.

Proof of abandonment. — To prove abandonment (1) parental conduct, evidencing a conscious disregard of obligations owed to the child, and (2) that such conduct led to the disintegration of the parent-child relationship must be established; evidence of the disintegration of the parent-child relationship is of no consequence if not caused by the parent's conduct. In re Adoption of J.J.B., 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995).

The presumption of abandonment imposes on the parent against whom it is directed the burden of going forward to rebut or meet the presumption; however, it does not shift the burden of proof which remains on the person seeking termination of parental rights. In re Adoption of J.J.B., 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995).

The presumption of abandonment that arrives through the statutory factors is completely rebutted by showing that a parent lacks responsibility for the destruction of the parent-child relationship. In re Adoption of J.J.B., 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995).

Presumption of abandonment rebutted by evidence that parents did not cause disintegration of parent-child relationship. — In proceedings seeking to terminate parental rights on the grounds of abandonment, where the district court found all of the conditions set forth in 32A-4-28(B)(3) NMSA 1978, but did not enter any findings of fact or conclusions of law regarding the cause of the disintegration of the parent-child relationship between daughter and respondents, the district court erred in terminating parental rights on the grounds of abandonment, because a party seeking termination of parental rights has the burden of proving that the objective parental conduct is the cause of the destruction of the parent-child relationship, and in this case, there was no evidence that respondents caused the delays that contributed to the disintegration of the parent-child relationship with daughter; the suspension of visitation that lasted for several years, based on an unsubstantiated allegation that there may have been child pornography in the home, and the consequent disintegration of the parent-child relationship cannot be blamed on the respondents. State ex rel. CYFD v. Donna E., 2017-NMCA-088.

Intent to abandon. — A parent need not have a subjective intent to abandon the child for abandonment to have occurred; rather, abandonment is defined by the outward behavior of the parent as perceived and interpreted by others and there is no inquiry into the parent's concealed and unexpressed intentions. In re Adoption of J.J.B., 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995).

Authority of court after mother's consent declared invalid. — Since the mother's consent to adoption has been declared invalid in keeping with the best interests of the child, the trial court retains the power to determine custody in the absence of a legally valid consent, and it is within the authority of the trial court to continue the child in the custody of the couple seeking to adopt her. Although they lacked standing to petition the court for adoption, they were not left without remedy, since they did have standing to seek relief. In re Samantha D., 1987-NMCA-082, 106 N.M. 184, 740 P.2d 1168, cert. denied, 106 N.M. 174, 740 P.2d 1158.

Clear and convincing evidence that the conditions and causes of neglect and abuse were unlikely to change. — In termination of parental rights proceeding, there was clear and convincing evidence to prove that the conditions and causes of neglect and abuse were unlikely to change in the foreseeable future where father, due to his repeated incarcerations, was unable to participate in parenting classes, retain stable housing, follow the recommendations from his substance abuse and mental health assessments, and participate in scheduled visits with his children. State ex rel. CYFD v. Nathan H., 2016-NMCA-043, cert. denied.

Evidence of conditions and causes of neglect and abuse. — Evidence sufficient to support finding that conditions and causes of neglect and abuse were unlikely to change. State ex rel. Human Servs. Dep't v. Wayne R.N., 1988-NMCA-048, 107 N.M. 341, 757 P.2d 1333.

Incarceration. — Even though incarceration alone is not an appropriate reason to terminate parental rights, where the father was convicted of the murder of the mother, his subsequent long-term incarceration was sufficient to establish that the child was neglected, and that termination of his parental rights was justified. State ex rel. Children, Youth & Families Dep't v. Joe R., 1997-NMSC-038, 123 N.M. 711, 945 P.2d 76.

Components of "unfit" mother not required findings by trial court. — Since the ultimate fact is that a mother is unfit, the trial court is not required to make findings as to the components of "unfit" because those components are not ultimate facts. State Health & Social Servs. Dep't v. Smith, 1979-NMCA-004, 93 N.M. 348, 600 P.2d 294, cert. denied, 92 N.M. 532, 591 P.2d 286 (decided under prior law).

Appellate issue to determine substantial evidence of components of "unfit". — Having found the ultimate fact that the mother is unfit, the appellate issue does not involve the sufficiency of findings as to the components of "unfit"; rather, the appellate issue is whether there was substantial evidence of each of the components so that the finding of the ultimate fact was supported by the evidence. State Health & Social Servs. Dep't v. Smith, 1979-NMCA-004, 93 N.M. 348, 600 P.2d 294, cert. denied, 92 N.M. 532, 591 P.2d 286.

Effect of abuse of sibling. — While abuse of a sibling may be insufficient to justify terminating parental rights, it is evidence that should be considered in determining whether a child has been placed in danger. State ex rel. Dep't of Human Servs. v. Tommy A. M., 1987-NMCA-043, 105 N.M. 664, 735 P.2d 1170.

IV. SUFFICIENT EVIDENCE.

Abandonment. — Where the children, youth and families department arranged a visit between the parent and the child, and the parent could not visit at the appointed time because the parent was incarcerated in Colorado; the child moved to Georgia to live with an aunt; when the parent was released from incarceration, the CYFD attempted to set up a home visit with the parent in Colorado, but the parent refused because the parent was traveling to Georgia; the CYFD attempted to set up visits between the child and the parent in Georgia, but could not reach the parent and the parent never attempted to reach the CYFD; when the parent returned to Colorado, the CYFD arranged for calls to the child at the aunt's home and when the parent complained that the aunt wasn't answering the calls and when the parent's comments to the child became inappropriate, the CYFD set up standing calls to the child at the child's therapists office; after the parent failed twice to reach the child at the therapist's office, the parent stopped trying and had no contact with the child for five months, the evidence showed that the parent consciously disregarded the parent's obligations to the child and as a result, the parent-child relationship disintegrated and the trial court properly terminated the parent's parental rights based on abandonment. State ex rel. CYFD v. Benjamin O., 2009-NMCA-039, 146 N.M. 60, 206 P.3d 171.

Sufficient evidence to support termination of parental rights. — Where father did not dispute that child was a neglected child, and where the children, youth and families department (department) presented evidence that father was not consistent in attending treatment or counseling services despite numerous referrals, that both the clinical therapist and psychologist indicated that services were needed, that father missed two substance abuse assessments and only completed a mental health assessment less than two weeks prior to the second termination hearing, that father's participation in drug screenings was inconsistent, that father did not have stable housing as required by his treatment plan, and that father was inconsistent in his contact with the department even though he was ordered to maintain contact as part of his treatment plan, there was sufficient evidence for the district court to conclude that father had not alleviated the causes and conditions that led to child being taken into custody and that he would not do so in the foreseeable future, despite reasonable efforts by the department to assist father. The evidence supported termination of father's parental rights in child. State ex rel. CYFD v. William C., Jr., 2017-NMCA-058.

Termination of parental rights was in child's best interest. — In a termination of parental rights case, where the children, youth and families department presented evidence of neglect based on father's plea of no contest to neglect of child, evidence that mother's contact with child was inconsistent, leading child to be confused about his future and causing child to become emotionally volatile, which resulted in acts of self-harm and low tolerance regarding conflict with peers, and evidence that father had shown an inability to follow the laws of the state of New Mexico and that his ability to change was uncertain, and where CYFD was not required to make reasonable efforts to assist father in adjusting the conditions that rendered him unable to care for the child because father stipulated to a finding that reunification with child was futile based on father's potential penitentiary sentence on pending criminal charges, there was sufficient evidence to support the district court's finding that it was in child's best interests to terminate father's parental rights. State ex rel. CYFD v. Raymond D., 2017-NMCA-067.

Sufficient evidence. — Where although parent gave parent's best effort to comply with a treatment plan, because of parent's personality disorder and because of the psychological trauma and emotional damage that the children suffered while in the parent's care, the parent could not safely parent the children and meet their psychological and emotional needs in the forseeable future; children had suffered from sexual and physical abuse; children had a long history of foster care and parent was emotionally depressed and not emotionally available to the children; although parent had obtained mental health treatment, the parent stopped treatment two years prior to the termination hearing; the parent did not exercise the parent's visitation rights with one child for a two year period; and the parent sent another child back to the parent's spouse knowing that the spouse had sexually abused the child, there was sufficient evidence to support termination of parental rights. State ex rel. Children, Youth & Families v. Athena H., 2006-NMCA-113, 140 N.M. 390, 142 P.3d 978.

Sufficient evidence of reasonable efforts to assist a parent in adjusting conditions. — In a termination of parental rights proceeding that began after a two-month-old child was found to have sustained multiple fractures, including twenty-three rib fractures and four skull fractures in various stages of healing, facial bruising, liver lacerations, brain bleeding, and a possible detached retina while in the care of her mother and father, and where the children, youth and families department (department) prepared a family treatment plan for father, went over the treatment plan with father, detailing ways the father could comply with the plan, provided father with the department's contact information, and scheduled appointments for a court-ordered psychosocial assessment, and where father did not show up for the appointments, did not participate in the psychosocial assessment, made no attempts to contact the department when he was incarcerated and failed to contact the department during any period of time when he was out of custody, and where father failed to show any interest in his child's specialized needs that required a high level of care, the district court did not err in finding that the conditions and causes of child's neglect and abuse were unlikely to change in the foreseeable future despite reasonable efforts by the department under 32A-4-28(B)(2) NMSA 1978 and that termination was in the child's best interest. State ex rel. CYFD v. Keon H., 2018-NMSC-033, rev'g 2017-NMCA-004, 387 P.3d 313.

Evidence supported presumptive abandonment. — The evidence did not support a finding that the causes and conditions of the father's neglect were unlikely to change in the foreseeable future where after the father was released from prison, he participated in all programs that CYFD recommended; he made substantial changes in this life to ensure the return of his children; and he held a stable job, established a support system, ceased to use drugs, and stayed clear of his past gang life, but the evidence supported the district court's termination of the father's parental rights based on the father's presumptive abandonment of the children where a parent-child bond with one child had disintegrated and had never existed with the other child; the children lived in the home of foster parents for an extended time and developed a parent-child relationship with the foster parents; the father had limited contact with the children during his incarceration; and the father made minimal effort to have the children placed with relatives. State ex rel. Children, Youth & Families Dep't v. Hector C., 2008-NMCA-079, 144 N.M. 222, 185 P.3d 1072, cert. denied, 2008-NMCERT-004, 144 N.M. 47, 183 P.3d 932.

Substantial evidence. — Evidence which established that the father failed to be involved in the children's lives prior to his incarceration; his failure to provide a safe and stable home by dealing in drugs in their home; his decision to leave the children's home when they were very young; his decision to violate the terms of his probation resulting in his incarceration; his failure to provide for the children or to protect them from the mother's neglect both prior to and during his incarceration; his knowledge that the mother used drugs and had a history of neglecting her children; his failure to contact the children while incarcerated; the termination of the father's parental rights to another child under similar circumstances; the father's parole to Florida; CYFD continued to offer reunification services to the father while he was incarcerated and after he was paroled, was substantial evidence of neglect, that the father was unlikely to properly parent the children in the future, that the department made reasonable efforts to assist the father, that the father abandoned the children and that aggravated circumstance existed that made further efforts to assist the father unnecessary. State ex rel., Children, Youth & Families Dep't v. William M., 2007-NMCA-055, 141 N.M. 765, 161 P.3d 262, cert. denied, 2007-NMCERT-005, 141 N.M. 762, 161 P.3d 259.

Abandonment found. — Termination of a mother's parental rights was proper since the evidence established a rebuttable presumption of abandonment which the mother failed to overcome. State ex rel. Children, Youth & Families Dep't v. John D., 1997-NMCA-019, 123 N.M. 114, 934 P.2d 308.

Disintegration of parent-child relationship. — Substantial evidence beyond reasonable doubt supported court's termination of parental rights due to disintegration of parent-child relationship. Laurie R. v. N.M. Human Servs. Dep't, 1988-NMCA-055, 107 N.M. 529, 760 P.2d 1295.

Evidence held sufficient to terminate parental rights. — Trial court's findings for termination of the mother's parental rights were supported by clear and convincing evidence, since the human services department made reasonable efforts to assist her in improving her ability to care for her children, which efforts proved ultimately futile. State ex rel. Human Serv. Dep't v. Dennis S., 1989-NMCA-032, 108 N.M. 486, 775 P.2d 252, cert. denied, 108 N.M. 485, 775 P.2d 251.

Termination of a mother's parental rights to four children was justified by clear and convincing evidence that the children were abused and neglected, the conditions and causes of the abuse and neglect were unlikely to change in the foreseeable future, and the children, youth and families department made reasonable efforts to assist the mother in adjusting the conditions which rendered her unable to properly care for the children. State v. Eventyr J., 1995-NMCA-087, 120 N.M. 463, 902 P.2d 1066.

Where department made minimal but statutorily sufficient efforts to assist mother, but there were no signs that the parent-child relationship would likely change for the better in the foreseeable future, parental rights were rightfully terminated. In re Elizabeth H., 2002-NMCA-061, 132 N.M. 299, 47 P.3d 859, cert. denied, 132 N.M. 397, 49 P.3d 76.

Trial court was justified in terminating parental rights to a four-year old child who had been adjudicated as a neglected child after being diagnosed as having nonorganic failure to thrive, where there was clear and convincing evidence to support the court's finding that the conditions and causes of the neglect were unlikely to change in the foreseeable future. State ex rel. Dep't of Human Servs. v. Williams, 1989-NMCA-008, 108 N.M. 332, 772 P.2d 366, cert. denied, 108 N.M. 273, 771 P.2d 981.

V. INSUFFICIENT EVIDENCE.

Insufficient evidence for termination of parental rights. — Where CYFD claimed that the parental rights of the petitioner should be terminated, because the petitioner failed to understand the harm that had been done to the petitioner's children and because the petitioner failed to take responsibility for the causes that had prompted the department to take custody of the children; CYFD's claims were based on the facts that had initially caused CYFD to take the petitioner's children into custody; and since the time when CYFD had taken the children into custody, the petitioner had successfully addressed the petitioner's alcohol and drug dependency, the petitioner regularly attended AA meetings, the petitioner made some, but not all, required child support payments, and the petitioner complied with all other requirements of CYFD's treatment plan; the petitioner made positive behavioral changes and learned skills to manage emotional moods; the petitioner recognized that the petitioner had made some poor choices regarding the petitioner's personal life that had affected the children; and the petitioner was openly affectionate with the children and the children were attached to the petitioner, the evidence did not support a determination that the causes and conditions of abuse and neglect were unlikely to change in the foreseeable future or that the petitioner had presumptively abandoned the children. State ex rel. Children, Youth & Families Dep't v. Lance K., 2009-NMCA-054, 146 N.M. 286, 209 P.3d 778, cert. denied, 2009-NMCERT-004, 146 N.M. 641, 213 P.3d 791.

Insufficient evidence of abandonment. — Under 32A-4-28(B)(2) NMSA 1978, the children, youth and families department (CYFD) must establish that a child has been neglected or abused and 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, and 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. State ex rel. CYFD v. Alfonso M.E., 2016-NMCA-021.

Where children, youth and families department (CYFD) moved to terminate father's parental rights one month after his deportation and discontinued its communication shortly thereafter, failed to 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, and 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, 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 Abuse and Neglect Act. The district court erred in terminating father's parental rights for abandonment. State ex rel. CYFD v. Alfonso M.E., 2016-NMCA-021.

Insufficient evidence to terminate parental rights of incarcerated parent. — Where the children, youth and families department (CYFD) filed a motion to terminate father's parental rights based on father's "unavailability", due to father's incarceration for much of the time his child was in CYFD custody, and for failure to follow the treatment plan adopted by the district court, there was insufficient evidence to support the termination of parental rights, because CYFD's actions were incomplete as to both implementing an appropriate treatment plan for father in facilitating interaction with him during his incarceration and when he was released from incarceration, and therefore CYFD failed in its burden to proffer sufficient evidence of reasonable efforts to assist father with reunification. State ex rel. CYFD v. Keon H., 2017-NMCA-004, cert. granted.

Law reviews. — For note, "Family Law - A Limitation on Grandparental Rights in New Mexico: Christian Placement Service v. Gordon," see 17 N.M.L. Rev. 207 (1987).

For article, "Incorporating the Law of Criminal Procedure in Termination of Parental Rights Cases: Giving Children a Voice Through Mathews v. Eldridge," see 32 N.M.L. Rev. 143 (2002).

For note, "Family Law: New Mexico Expands Due Process Rights of Parents in Termination of Parental Rights: In re Ruth Anne E.", see 31 N.M. L. Rev. 439 (2001).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203.

Parent's transsexuality as factor in award of custody of children, visitation rights, or termination of parental rights, 59 A.L.R.4th 1170.

Validity and construction of surrogate parenting agreement, 77 A.L.R.4th 70.

Parent's mental deficiency as factor in termination of parental rights - modern status, 1 A.L.R.5th 469.

Parent's use of drugs as factor in award of custody of children, visitation rights, or termination of parental rights, 20 A.L.R.5th 534.

Smoking as factor in child custody and visitation cases, 36 A.L.R.5th 377.

Sufficiency of evidence to establish parent's knowledge or allowance of child's sexual abuse by another under statute permitting termination of parental rights for "allowing" or "knowingly allowing" such abuse to occur, 53 A.L.R.5th 499.

Parents' mental illness or mental deficiency as ground for termination of parental rights constitutional issues, 110 A.L.R.5th 579.