STATE EX REL. CHILDREN, YOUTH & FAMILIES DEP'T V. A.H., 1997-NMCA-118, 124 N.M. 244, 947 P.2d 1064
STATE OF NEW MEXICO ex rel. CHILDREN,
YOUTH AND FAMILIES
DEPARTMENT, Petitioner-Appellee,
vs.
IN THE MATTER OF A.H., L H., and K. H., Children, and
concerning J.H., Respondent, and C.H.,
Respondent-Appellant.
COURT OF APPEALS OF NEW MEXICO
1997-NMCA-118, 124 N.M. 244, 947 P.2d 1064
APPEAL FROM THE CHILDREN'S COURT OF
BERNALILLO COUNTY. Michael E. Martinez, Children's Court Judge.
Released for Publication November 20,
1997.
Angela L. Adams, Chief Children's Court
Attorney, Deborah Gray, Children's Court Attorney, Diane M. Garrity, Children's
Court Attorney, Santa Fe, NM, for Appellee.
Kenneth H. Martinez, P.A. Albuquerque,
NM, for Appellant C.H.
Donald W. Miller, Corrales, NM, for
Respondent.
J.H. Roxanna, M. Prelo, The Prelo Law
Firm, Albuquerque, NM, Guardian ad Litem.
A. JOSEPH ALARID, Judge. WE CONCUR: RUDY
S. APODACA, Judge, RICHARD C. BOSSON, Judge.
{1} Children, Youth
and Families Department (the Department) joins Father in the appeal of an order
continuing legal custody of his children with the Department after abuse and
neglect charges against him had been dismissed. Mother and the guardian ad
litem object to the automatic placement of children with Father. We affirm in
part and reverse and remand this matter in part with instructions. We affirm
the portion of the trial court's decision to continue the placement of the
children with the Department until an investigation of the Father's fitness and
the allegations of abuse is completed.
See NMSA 1978, §
32A-4-20(J)
(1997). We reverse and remand in part to Children's Court, wherein the
Department shall investigate both the underlying allegations of abuse and
current fitness of Father. We additionally instruct the Children's Court to
include Father in the children's treatment plan.
{2} The original abuse
and neglect petition was filed in Washington state after the youngest child
suffered apparent child abuse. In the findings of fact entered by the Superior
Court in Washington, the court made no specific finding as to the identity of
the perpetrator of the injuries to the youngest child, but did find that Father
had acknowledged shaking the baby but with no intent to inflict injury. Because
father was in the Navy, a military criminal investigation was initiated, but no
specific resolution of that investigation is part of the record. After the
hearing, the court ordered that the child remain in Mother's care under the
supervision of the Washington State social services agency. Father was no
longer in the home and Mother was seeking a divorce. After psychological
evaluation the agency ordered counseling for both parents and parenting
classes, as well as stress and anger management for Father. Mother subsequently
moved to New Mexico, and was to continue to cooperate with the Department in
New Mexico. Father remained in Washington.
{3} In June 1995,
after an attempted suicide by Mother, the Department filed a petition for abuse
and neglect, naming both parents, and the children were taken into protective
custody. The suicide attempt, coupled with the Washington incident, was the
basis for the petition. A guardian ad litem was appointed for the children, and
both parents were served with notice of the hearing. Mother did not appear at
the hearing, but was represented by counsel; Father did not appear and was not represented
by counsel. After the hearing a default judgment against both parents was
entered adjudicating the children to be neglected and abused and ordering
custody to remain with the Department. Before the disposition hearing, Father
filed a motion to set aside the default judgment against him, which was granted
conditioned on Father's appearance at all future hearings.
{4} In November 1995,
a disposition order was entered regarding Mother which continued legal custody
in the Department and included findings of fact and a treatment plan. The
findings of fact made no mention of Father, and the treatment plan did not
include Father. The treatment plan continued the confinement of the oldest
child at a residential treatment center where he was making limited progress,
and the two younger siblings remained in foster care. A recommendation was made
that the two younger children be tested for developmental delays and learning
deficits. In addition, the plan required an interaction assessment of the
children with Mother and a schedule of visitation with her. It appears that
there was little, if any, contact between the children and Father.
{5} After the hearing,
the trial court found that the oral motion to dismiss Father was well taken,
but the requested findings were not. Specifically, the Department requested a
finding that the Department was required to release the children to Father
because they did not intend to pursue adjudication against Father. In denying
the Department's motion, the trial court ordered that legal custody should
remain with the Department unless or until the domestic relations court
handling the parent's divorce determined that custody was appropriate with
Father or when the children's therapist determined
{*246}
that the children's needs could be met by Father. Father appeals that
order.
{6} Father argues that
he should be given custody of the children because no evidence was presented in
support of the allegation of abuse and neglect or of his being an unfit parent.
In support of his argument Father cites
In re Mary L.,
108 N.M. 702,
705,
778 P.2d 449, 452 , in which we held that the noncustodial parent was
entitled to custody unless the Human Services Department could establish a lack
of fitness of the parent. However, in
Mary L., there was absolutely no
factual predicate giving rise to any suspicion of neglect or abuse,
id.
at 705-06, 778 P.2d at 452-53, whereas, in this case, there is a factual
predicate sufficient to retain temporary custody of the children. Section 32A-4-20(J).
Once the children have been adjudicated to be abused or neglected, and the
parents are contesting custody, the dispute is between the parents. In which
case, the court is required to follow the rule of best interests of the
children.
Schuermann v. Schuermann,
94 N.M. 81, 83,
607 P.2d 619, 621
(1980);
Ettinger v. Ettinger,
72 N.M. 300, 303,
383 P.2d 261, 263
(1963). The State has established that the children are in need of services;
the Department has an obligation to assure that the children receive those
services.
{7} The two younger
children were in foster care and being screened for purposes of assisting in
educational development. Although the middle child has no known illnesses or
psychiatric treatment history, the youngest child is in a different situation.
The youngest child was admitted to Children's Hospital and Medical Center in
Washington State when she was eight-weeks old for severe head trauma and
seizures. This occurred on February 7, 1994. The district court's uncontested
findings of fact indicate the following in regard to that incident. First,
neither parent had a reasonable explanation for the injury, while experts at
the hospital stated that in their opinion the injury was non-accidental and
they attributed it to child abuse. Second, a doctor at the Children's Hospital
stated that in his opinion the injury was so serious, it suggested
out-of-control violence. He reported that it would be difficult to assess the
exact degree of harm but "that she would be a pretty damaged child."
Third, as previously noted, according to the Washington State court, Father did
acknowledge shaking the youngest child without intending to injure her.
Currently the child has other medical problems which require vigilant
"caretakers" to assure that she receives prompt medical care.
{8} Given the
condition of these children and the extent of their need for services, the
Department has a responsibility to investigate even a natural parent when
allegations of such abuse have been made. The presumption that custody should
go to the natural parent is never conclusive and custody must be governed by
the best interests of the children.
In re Adoption of J.J.B.,
119 N.M.
638, 652,
894 P.2d 994, 1008 (1995). "In New Mexico, there is a strong
tradition of protecting a child's best interests in a variety of
circumstances.'"
Sanders v. Rosenberg,
1997-NMSC-002, P10,
122 N.M.
692,
930 P.2d 1144 (quoting
In re Adoption of Francisco A.,
116 N.M.
708, 713,
866 P.2d 1175, 1180 ). In dealing with children, the rule of
"best interest of the children" is essentially equitable.
See
Sanders,
1997-NMSC-002, P10. A court of equity has the power of devising a
remedy to fit the circumstances of the situation.
See In re Adoption of
Francisco A., 116 N.M. at 713-14, 866 P.2d 1180-81. Such is the case here.
Additionally, Section 32A-4-20(J) allows for a court to make a custody
determination while awaiting a determination or report regarding a parent's
alleged abuse or neglect of a child. Given these initial factual findings and
the allegations made by the Department, the Department has a legal duty to
investigate and the court has both an equitable and statutory responsibility to
safeguard the children, including granting the Department legal custody for the
time being, until the investigation is complete.
{9} The Department
made serious allegations of child abuse relating to Father. The
{*247} Department offered findings of fact
which were adopted by the trial court and have not been contested. Those
allegations include the fact that when the child was admitted to the hospital
the parents had no reasonable explanation for her injuries. A doctor (who is a
child abuse and neglect consultant at Children's Hospital) found that the child
had suffered an inflicted head injury that was non-accidental and suggested
out-of-control violence and that the child's doctor does not know the exact
extent of her injuries but stated that she is a pretty damaged child. The
findings of fact also show that Father admitted to shaking his daughter without
the intention to inflict injury. All of these allegations create a sufficient
factual foundation for the Department to investigate and for the court to
invoke the remedies under statute and equity, if necessary, to protect the
child in the interim. Section 32A-4-20(J) provides:
On the court's motion or that of a party, the court
may continue the hearing on the petition for a reasonable time to receive
reports and other evidence in connection with disposition. The court shall
continue the hearing pending the receipt of the predisposition study and report
if that document has not been prepared and received. During any continuances
under this subsection, the court shall make an appropriate order for legal
custody.
This gives the trial court sufficient authority to leave
custody with the Department, at least on a temporary basis, until the
investigation is completed.
{10} Father argues
that he is entitled to custody of his children because no evidence of his being
unfit or any proof of the allegations in the petition have been presented. He
asserts a violation of due process and a liberty interest in raising his
children. We agree that there is a clearly established right to the integrity
of the family, however, the parameters of the right are not absolute.
See
Oldfield v. Benavidez,
1994-NMSC-006, P15,
116 N.M. 785,
867 P.2d 1167. The
law also supports the notion that the welfare of the children is paramount to
the resolution of the case.
See In re Adoption of J.J.B., 119 N.M. at
652, 894 P.2d at 1008.
{11} If the trial
court were attempting to make a final determination of custody based upon abuse
or neglect and based upon this record only, we would agree with Father that
there lacks a sufficient predicate as outlined in
Mary L.. But the trial
court did not do so below. The trial court attempted to defer to the domestic
relations proceeding for a final determination. In that respect, we think the
trial court erred because it is the Department and the Children's Court who
collectively have the responsibility to make a determination, one way or
another, with respect to both allegations of abuse and the welfare of the
children. It is the Department which has the statutory authority and the
financial resources to see this matter to a conclusion. We ought not burden the
domestic relations court with that responsibility.
{12} Therefore, we
affirm the trial court's determination to continue custody in the Department
until the Children's Court can investigate and determine the proper placement
of the children. Additionally, to that limited extent only, we reverse the
order of the Children's Court below and remand for further proceedings below
before the Children's Court pursuant to Section 32A-4-20(J), wherein the
Department shall investigate both the underlying allegations of abuse and the
current fitness of Father subject to the supervision of the Children's Court,
and that ultimately the Children's Court may make the necessary findings and
conclusions with regard to Father's fitness to be a legal custodian.
{13} We also instruct
the Children's Court to revise the children's treatment plan to include the
Father pending the Department's investigation and to require that Father
participate in the treatment plan as a provision of his visitation rights. The
court has the discretion to permit visitation rights to the parent.
See
NMSA 1978, §
32A-4-18(D)(2) (1993). NMSA 1978, Section
32A-1-3(A) (1993)
requires the court to not only protect the children but also to "preserve
the unity of the family whenever possible." Father's participation in the
treatment plan would
{*248} allow for
Father's visitation with the child and allow the Department to monitor Father's
interaction with the children. We therefore affirm in part and reverse and
remand this matter in part with instructions for further proceedings not
inconsistent with this opinion.
{14} All motions held
in abeyance are hereby denied.