STATE EX REL. CHILDREN, YOUTH & FAMILIES DEP'T V. VINCENT
L., 1998-NMCA-089, 125 N.M.
452, 963 P.2d 529
STATE OF NEW MEXICO, ex rel., CHILDREN,
YOUTH & FAMILIES
DEPARTMENT, Petitioner-Appellant,
vs.
In the Matter of VINCENT L., A Child, and Concerning
DEBORAH M. and ERNIE L., Respondents-Appellees.
COURT OF APPEALS OF NEW MEXICO
1998-NMCA-089, 125 N.M. 452, 963 P.2d 529
APPEAL FROM THE DISTRICT COURT OF
TORRANCE COUNTY. NEIL P. MERTZ, District Judge.
As Corrected August 19, 1998. Released
for Publication July 8, 1998. Certiorari Denied, No. 25,227, July 6, 1998.
ANGELA ADAMS, Chief Children's Court
Attorney, DIANE GARRITY, DEBORAH GRAY, ROY E. STEPHENSON, Children's Court
Attorneys, Children, Youth & Families Department, Santa Fe, New Mexico, for
Appellant.
JUDITH C. NICHOLS, Albuquerque, New
Mexico, for Appellee Vincent L.
NARCISO GARCIA, JR., Albuquerque, New
Mexico, for Appellee Deborah.
M. ROBERT L. DIAZ, Albuquerque, New
Mexico, for Appellee Ernie L.
LYNN PICKARD, Judge. WE CONCUR: RICHARD C.
BOSSON, Judge, MICHAEL D. BUSTAMANTE, Judge.
{1} This case requires
us to decide whether the Abuse and Neglect Act, NMSA 1978, §§
32A-4-1 through
-33 (1993), prior to its amendment in 1997, permits the children's court to
adjudicate a child abused or neglected without being able to assign
responsibility for the abuse or neglect to a parent, guardian, or custodian. We
hold that it does not.
{2} The Department
appeals an order dismissing an abuse and neglect petition. The docketing
statement raised the issue identified above, as well as two issues dealing with
the admission and exclusion of evidence: (1) whether the trial court erred in
ruling that evidence of Ernie L.'s prior acts of violence were more prejudicial
than probative and therefore would not be admitted and (2) whether the trial
court erred in excluding evidence of the prior acts of violence due to the
Department's failure to provide the sort of discovery the trial court thought
was appropriate in this abuse and neglect case. The trial court appeared to
hold the Department to a standard of discovery that made the Department
responsible for some of its witnesses even though the witnesses were not under
the Department's control, a standard the Department contends is more consistent
with criminal procedure than procedure in the civil case that it contends this
abuse and neglect case is.
{3} The calendar notice
proposed summary affirmance. On the issue of the construction of the statute,
we proposed to hold that the clear language of the Abuse and Neglect Act prior
to its 1997 amendment required the Department to show the respondent's
responsibility for the abuse or neglect. On the issue of other bad acts, we
proposed to hold that the matter was within the trial court's discretion. On
the issue of discovery, we proposed not to reach any alleged error by the trial
court in view of our proposal to affirm the trial court's exclusion of the
evidence on Rule
11-403 NMRA 1998 grounds. The Department has timely responded
to the
{*454} first two issues. Not
persuaded by its arguments, we affirm.
{4} The unchallenged
findings of the trial court show that Vincent L., the child of Deborah M. and
Ernie L., suffered one, and possibly two, skull fractures before he was seven
months old. The later skull fracture was discovered by Ernie's mother, Juanita
L., in whose custody Vincent was, on August 3. Upon finding a soft spot on
Vincent's head, Juanita told Deborah and Ernie, and they arranged immediate and
appropriate medical attention for Vincent. The fracture occurred sometime
between July 30 and August 2. During this time, Vincent had been in the custody
at various times of Juanita, Ernie, Deborah, and a babysitter.
{5} The Department's
evidence tended to show that the skull fracture was likely the result of being
hit with a blunt object or being thrown against an object. The Department's
experts testified that Ernie and Deborah's explanation--that the child had
fallen--was unlikely and could not have caused such an injury. Respondents'
expert, on the other hand, testified that the injury was not serious and that
skull fractures among children are not uncommon.
{6} Although the
Department's docketing statement contains a fuller recitation of the evidence,
mainly showing that Respondents' evidence was not as worthy of weight as its
own evidence, the Department has commendably not raised a
sufficiency-of-the-evidence issue. An appellate court does not weigh the
evidence and, as long as it is rational for the trial court in this case to
have found that the Department did not meet its burden of proof, we will affirm
on a sufficiency-of-the-evidence contention.
See Sanders v. Rosenberg,
1997-NMSC-2, P11,
122 N.M. 692,
930 P.2d 1144;
Medina v. Berg Constr., Inc.,
1996-NMCA-87, P17,
122 N.M. 350,
924 P.2d 1362. Because no sufficiency issue is
raised, we do not deem it necessary to give a fuller statement of the facts.
{7} The Department
continues to argue that it is not required to prove who caused the injury to a
child in order to adjudicate a child physically abused. The Department
generally argues that such a showing would be more appropriate in a criminal
case, where the state is trying to show criminal culpability in order to mete
out punishment. Such a showing should not be required, according to the
Department, in this civil case in which the best interest of the child is
paramount, a notion the Department contends was not fully appreciated by the
trial court. We disagree that the trial court treated its fact finding in this
case in any way other than appropriately under the Children's Code. The trial
court carefully laid out the statutory elements of abuse and neglect and
explained why the Department did not meet its burden of proof in the court's
opinion. The findings give no suggestion that the trial court thought this case
had criminal overtones.
{8} The Department's
argument is based on its reading of the definitional section of the Abuse and
Neglect Act, § 32A-4-2. Since the Department does not challenge the trial
court's findings as to neglect, we limit our consideration to abuse. Prior to
its amendment in 1997, Section 32A-4-2 provided a definition for "abused
child" and a separate definition for "physical abuse."
B. "Abused child" means a child:
(1) who has suffered physical abuse, emotional abuse
or psychological abuse inflicted by the child's parent, guardian or
custodian ;
(2) who has suffered sexual abuse or sexual
exploitation inflicted by the child's parent, guardian or custodian ;
(3) whose parent, guardian or custodian has
knowingly, intentionally or negligently placed the child in a situation that
may endanger the child's life or health; or
(4) whose parent, guardian or custodian has
knowingly or intentionally tortured, cruelly confined or cruelly punished the
child.
D. "physical abuse" includes, but is not
limited to, any case in which the child exhibits evidence of skin bruising,
bleeding, malnutrition, failure to thrive, burns, {*455}
fracture of any bone, subdural hematoma, soft tissue swelling or death and:
(1) there is not a justifiable explanation for the
condition or death;
(2) the explanation given for the condition is at
variance with the degree or nature of the condition;
(3) the explanation given for the death is at variance
with the nature of the death; or
(4) circumstances indicate that the condition or death
may not be the product of an accidental occurrence[.]
(Emphasis added.) The 1997 amendment inserted an additional
paragraph to the definition of "abused child" in Section 32A-4-2(B),
designated as paragraph (1), and renumbered the other paragraphs (2) through
(5). As currently written, Section 32A-4-2(B) reads: "'abused child' means
a child: (1) who is at risk of suffering serious harm[.]" Section
32A-4-2(B)(1) (1997). Notably absent from this added subsection is any
reference to the child's parent, guardian, or custodian.
{9} The Department
argues that Sections 32A-4-2(B) and 32A-4-2(D) provide alternative ways for it
to prove abuse with (B) applying when the parent, guardian, or custodian is
responsible for the abuse and (D) applying when not. We believe that the
Department's reading of this statute is in error. Section 32A-4-2(B) defines an
abused child in several ways, including one who has been physically abused by a
parent, guardian, or custodian. Section 32A-4-2(D) defines physical abuse. We
believe that this definition of physical abuse, rather than providing an
independent basis for proceeding on an abuse petition, simply defines what is
meant by physical abuse in the definition for an abused child. Thus, a child
adjudicated to be physically abused must exhibit certain injuries caused
somehow by a parent, guardian, or custodian. There must be some evidence of
culpability of a parent, even if that culpability amounts only to neglect under
a civil standard.
{10} The Department
argues that not all situations of abuse or neglect require parental
culpability.
See Section 32A-4-2(C)(4). We disagree. Prior to the 1997
amendment, all situations require some degree of culpability or responsibility
on the part of the parent, even if the parent is incapable of discharging
parental duties because of a mental illness. As defined by the Abuse and
Neglect Act prior to the 1997 amendment, a child is either neglected or abused
due to actions or inactions by a parent or guardian. The Department must still
show that the parent or guardian had a duty to the child and through some
action or inaction allowed the child to be harmed or neglected. There is no
requirement of criminal culpability, but there must still be a showing that the
parent or guardian was responsible somehow for the harm.
{11} The Department
argues that subsection (D) and subsection (B) are at odds and cannot be read
together as we propose. It argues that subsection (D) is predicated on not
knowing the circumstances under which the child was injured. While we agree
that the purpose of subsection (D) is to clarify that abuse may be present even
if the exact circumstances of the injury cannot be proved, that is not the
import of the statute. Rather, this section is directed at injuries, the
explanation for which is at variance with the injury. There is nothing in the
statute regarding who caused the injury; rather, the statute is directed to how
the condition came to be. Who caused the injury is left to subsection (B),
which defines an abused child. We cannot agree with the Department that the two
sections are at odds and must stand alone as separate bases for adjudication of
abuse.
{12} While we find the
Department's argument regarding protection of young children compelling, we do
not believe that the legislature intended to make evidence of physical abuse
alone, without any evidence that a parent was in some fashion responsible for
the injury, enough to prove a child abused under the Act as it read prior to
1997. "We presume that the legislature is well informed as to existing
statutory and common law and does not intend to enact a nullity, and we also
presume that the legislature intends to change existing law when it enacts a
new statute."
Incorporated County of Los Alamos v. Johnson,
108
N.M. 633, 634,
776 P.2d 1252, 1253 (1989);
see also State v. {*456} Tabaha,
103 N.M. 789, 791,
714
P.2d 1010, 1012 (legislature will not be presumed to enact useless
legislation). While we do not disagree with the Department that child abuse
that is unable to be proved against a particular person is a serious societal
problem, for the foregoing reasons, we do not believe that the legislature
specifically addressed the problem until 1997.
2. Other Bad Acts Evidence
{13} The Department
continues to argue that the trial court should have admitted evidence of an
action of pinching another child and an act of domestic violence, both on the
part of Ernie L. While it agrees that evidentiary determinations are to be left
to the discretion of the trial court, it argues that in a situation such as
this, where there was no jury that could be misled by such evidence, the trial
court should have admitted the evidence and given it whatever weight it
merited. We cannot say that the trial court abused its discretion in
determining here that the evidence was more prejudicial than probative and
excluding it.
{14} The Department
has done nothing in its memorandum in opposition to counter the reliance in our
calendar notice on cases such as
Cadle Co. v. Phillips,
120 N.M. 748,
750,
906 P.2d 739, 741 . That case, as well as
State v. Bowman,
104 N.M.
19, 22,
715 P.2d 467, 470 (Ct. App. 1986), on which it relied, stand squarely
for the proposition that a trial court is not compelled to admit evidence
simply because another case has held similar evidence admissible.
{15} In this case, the
crucial issue before the trial court was the identity of the person who abused
Vincent. That the trial court could have found that Vincent was abused was not
so much at issue below. In fact, the trial court found that the child had a
skull fracture for which neither Respondent could provide a satisfactory
explanation.
See § 32A-4-2(D). We cannot say that the trial court abused
its discretion in ruling that the prejudice of the tendered evidence outweighed
the probative value.
{16} For the reasons
stated herein and in the calendar notice, we affirm.
MICHAEL D. BUSTAMANTE, Judge