STATE OF N.M. EX REL CYFD V. AMANDA M.,
2006-NMCA-133, 140 N.M. 578, 144 P.3d 137
STATE OF NEW MEXICO ex rel. CHILDREN,
YOUTH AND FAMILIES DEPARTMENT,
Petitioner-Appellee,
v.
AMANDA M.,
Respondent-Appellant,
and
In the Matter of ANGELINA S., a Child.
COURT OF APPEALS OF NEW MEXICO
2006-NMCA-133, 140 N.M. 578, 144 P.3d 137
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Marie Baca, District Judge
Released for publication October 24,
2006
New Mexico Children, Youth & Families
Dep't., Rebecca J. Liggett, Children's Court Attorney, Santa Fe, NM, for
Appellee
Law Offices of Nancy L. Simmons, P.C.,
Nancy L. Simmons, Albuquerque, NM, for Appellant
RODERICK T. KENNEDY, Judge. WE CONCUR: MICHAEL
D. BUSTAMANTE, Chief Judge, JAMES J. WECHSLER, Judge
AUTHOR: RODERICK T. KENNEDY
{1} Amanda M. (Mother)
appeals the trial court's judgment that she abused and neglected her daughter,
Angelina S. We first address whether this Court should accept appellate
jurisdiction where, as here, the notice of appeal of an adjudication of abuse
and neglect is filed late. We next address Mother's contention that there was a
lack of clear and convincing evidence that Mother abused and neglected
Angelina.
{3} Piecing together
the testimony of this case, the following time line emerges. On February 8,
2005, the Children, Youth and Families Department (CYFD) took
fourteen-month-old Angelina into custody after Angelina was taken to the
hospital with a fractured skull, subdural hematoma, and multiple bruises to her
chest, sternum, head, and back. At the time, Mother lived with her boyfriend,
Eric Gore, who was not Angelina's father. Gore had been Angelina's primary caretaker
since the previous August.
{4} On the morning of
February 8, Mother got up at 7:30 a.m. to go to work. Angelina had awakened, so
Mother gave her a bottle and put her back to bed before going to work. At this
time, Mother said that Angelina looked fine and did not have any bruises on her
forehead. She left Angelina in Gore's care at around 7:45 to 8 a.m.
{5} At around 8 to 8:30
a.m., Gore woke up Angelina. He did not feed her at that time because he was
going to wait until they got to his sister Latasha Gore's house. Right before
Gore and Angelina left, at about 8:45 to 9 a.m., Mother called Gore. Their
conversation did not give her any concerns.
{6} At his sister's
house, Gore fed Angelina around 11 a.m. and Angelina vomited up some of this
food. A short while later, at 11 to 11:30 a.m., Gore told Mother about this
incident. Gore also told Mother that Angelina appeared sick and was not quite
herself, but that Angelina had played with another child well after the
vomiting.
{7} Mother spoke to
Gore again around 2 p.m. Gore told her that Latasha had watched Angelina and
two other children (Destiny and Andrew) while Gore was out moving Latasha's
belongings. Gore told Mother that when he returned about a half hour to an hour
later, Latasha said that Angelina had vomited again. Gore did not question
Latasha about the vomiting. Later in the day, Gore noticed a bruise on
Angelina's forehead, and asked Latasha about it, but Latasha did not know how
it happened. When Mother called Gore again at 4 p.m., Gore told her that
Angelina seemed to be feeling slightly better.
{8} Mother picked up
Gore and Angelina at approximately 5 to 5:30 p.m. Gore later told the social
worker investigating the case that around this time, he noticed that Angelina
was not herself and appeared sick. Mother told the social worker that she did
not notice anything about Angelina except that Angelina was tired. Mother also
testified that because Angelina was sleeping when Mother arrived, Angelina
looked groggy, as if she had just woken up. Mother stated that Angelina
typically took a nap around that time. Mother then testified that when she
brought Angelina to her car, she brushed back Angelina's hair and discovered a
small bruise on Angelina's forehead. She asked Gore what had happened, and he
told her he did not know. Mother admitted that she looked at Angelina more upon
noticing this bruise, but claimed it was all she noticed.
{9} Mother, Gore, and
Angelina then went to store for ten to fifteen minutes. Mother testified that
she brought Angelina into the store with her and that Angelina was still sleepy
during this time. According to Mother's testimony, at some time between 5:45
and 6 p.m., the three arrived at the house of Anna Marie Castlow, who is
Angelina's grandmother on Mother's side. (Mother told the social worker they
arrived at 6 to 6:30 p.m.)
{10} When Castlow came
home at 6:15 p.m., Mother and Gore were in the kitchen doing dishes. Castlow
testified that the other children in the house rushed at her in greeting, but
that due to the commotion, she only saw Angelina briefly and in passing.
Castlow testified that Angelina was sitting on the floor by herself. Mother, on
the other hand, testified that Angelina was playing with another child. Castlow
went into the kitchen to greet Mother. When Castlow came back out, she sat on
the couch and picked up Angelina. Castlow testified she looked at Angelina and
then "double look[ed] again." Brushing Angelina's hair back, she saw
that the side of Angelina's face was the "size of a grapefruit" and her
eye was partially swollen. Castlow further stated that Angelina looked like she
was not "all there," was glossy-eyed, that she looked "severely
injured," and that her head was so swollen it was up against her ear.
Castlow said that Angelina's appearance was "horrifying."
{11} Gore's statement to
the social worker also confirmed Castlow immediately noticed the swelling on
Angelina's head. Mother, however, was adamant in her testimony that Castlow had
held Angelina for five to eight minutes before noticing the swelling, and only
noticed it after commenting on the messiness of Angelina's hair and pulling it
"
all the way back." Mother also asserted that the swelling on
Angelina's head was not the size of a grapefruit until later on at the
hospital.
{12} Soon after calling a
nurse hotline, Mother and Gore took Angelina to the hospital. Angelina arrived
at the hospital with a fractured skull, subdural hematoma, and multiple bruises
to her chest, sternum, head, and back. A detective interviewed Mother and Gore
that evening, and Mother was unresponsive and would not answer questions. Gore
answered the detective's questions, but could not explain Angelina's injuries.
{13} The next day, Angela
Teertstra, a senior social worker with CYFD, sat in on the detective's next
interview with Mother and Gore. Neither Mother nor Gore offered an explanation
for Angelina's injuries at that time. During the interview, Mother did not
state that she had noticed the swelling on Angelina's head before Castlow
noticed it and Gore also denied seeing any swelling or bruising (other than the
bruise on the forehead) during the day.
{14} When Teertstra spoke
to Mother and Gore the day after that, on February 10, both stated that they
did not know what had happened to Angelina. Teertstra also spoke to
seven-year-old Destiny, Gore's younger sister. Destiny was with Latasha and
Angelina most of the time that Angelina was at Latasha's house. Destiny told
Teertstra that she did not see anyone hit Angelina or see Angelina fall, but
that while she was in another room, she heard Angelina crying and calling for
her, then heard Gore tell Angelina not to go. Destiny's mother stated that ever
since the day Angelina was injured, Destiny had been jumpy and overly
apologetic.
{15} After taking
Angelina into custody, CYFD filed an abuse and neglect petition against Mother
and Gore. At trial, Mother testified that Angelina had no significant prior
injuries, but that she had once fallen out of her highchair while in Gore's
care. Mother had come home and taken Angelina to the hospital. Mother further
insisted that Angelina's head swelling was not as large as Castlow claimed and
was not visible until the moment Castlow pulled back Angelina's hair. When
asked what had happened to Angelina, Mother stated, "I wasn't there; I
wouldn't know." When asked if she thought her daughter's injuries were
accidental, Mother replied "I wouldn't know; I wasn't there." Mother
also testified that only after Gore was taken in for questioning in a later
interview with the detective, he informed her that Angelina's injuries were
caused by a fall from a trampoline.
{16} The trial court, in
ruling, found the trampoline story "a bunch of bologna" and Mother's
testimony "absolutely unbelievable." The trial court accepted Gore's
no contest plea to the abuse and neglect petition. In its written findings of
fact and conclusions of law, it found that Angelina was an abused child within
the purview of the Children's Code, NMSA 1978, §§
32A-1-1 to
32A-23-8 (1993, as
amended through 2005), and that:
6. There is
clear and convincing evidence that [Mother] had care of the child early in the
day before she went to work and that while she was at work she was told that
the child was vomiting and was "not herself". The child suffered
physical abuse pursuant to [S]ection 32A-4-2 B(2) of the Children's Code.
7. There is
clear and convincing evidence that [Mother] did not respond appropriately to
the child's injuries when she saw the child after work and it wasn't until the
child's grandmother saw the child's injuries that the child was taken to the
hospital. The child was at risk of further harm pursuant to [S]ection 32A-4-2
B(1) of the Children's Code.
8. There is
clear and convincing evidence that [Mother] knew or should have known that the
child could be injured in the care of . . . Gore, pursuant to [S]ection 32A-4-2
E(3) of the Children's Code, since the child had previously been hurt when she
reportedly fell out of her highchair when in his care.
9. There is
clear and convincing evidence that the child was negligently endangered by
[Mother] when she left the child with . . . Gore and when the child was left
without medical care for several hours after sustaining the injuries on
February 8, 2005.
{17} Mother appeals from
this judgment, and we affirm.
This Court Has Jurisdiction Over This Appeal
{18} We review de novo
the question of whether this Court should accept jurisdiction where the notice
of appeal from an adjudication of abuse and neglect is filed late.
See State
ex rel. Children, Youth & Families Dep't v. Shawna C.,
2005-NMCA-066, ¶
24,
137 N.M. 687,
114 P.3d 367 (stating that questions of law are reviewed de
novo). In
State ex rel. Children, Youth & Families Department v. Robert
E.,
1999-NMCA-035,
126 N.M. 670,
974 P.2d 164, this Court allowed an appeal
from a termination of parental rights where the notice of appeal was filed
late.
Id. ¶¶ 9-10. Applying a presumption of ineffective assistance of
counsel to such cases, we deemed the appeal timely filed because the parent's
fundamental liberty interest in the care, custody, and management of their
children was at stake.
Id. Arguing that adjudications of abuse and
neglect also affect this fundamental right, Mother asks this Court to extend
the presumption of ineffective assistance of counsel to such proceedings, and
deem her appeal timely filed.
{19} As we explained in
State
v. Upchurch,
2006-NMCA-076,
139 N.M. 739,
137 P.3d 679, we do not routinely
excuse all untimely appeals.
Id. ¶ 4. In order for the presumption of
ineffective assistance of counsel to apply, the party must have a right to
effective assistance of counsel.
See id. We recognize a right to
effective assistance of counsel in termination cases.
See State ex rel.
Children, Youth & Families Dep't v. Vanessa C.,
2000-NMCA-025, ¶ 32,
128 N.M. 701,
997 P.2d 833. Whether we will recognize that right in
adjudications of abuse and neglect has not yet been addressed by our courts.
{20} In New Mexico, a
parent's right to counsel at adjudications of abuse and neglect is statutory.
See
§ 32A-4-10(B). This right to counsel exists from "the inception of an
abuse or neglect proceeding."
Id. In
In re Termination of
Parental Rights of James W.H.,
115 N.M. 256,
849 P.2d 1079 (Ct. App. 1993),
this Court recognized a parent's statutory right to counsel in termination
proceedings "is worthless unless that right includes the right to
effective
counsel."
Id. at 257, 849 P.2d at 1080 (internal quotation marks
and citation omitted). While noting that a parent's right to custody of the
parent's child is also constitutionally protected, we concluded that "the
legislature would not have statutorily guaranteed an indigent parent the right
to counsel without also guaranteeing that the court-appointed counsel be
effective."
Id. at 258, 849 P.2d at 1081. Applying this rationale
to the case before us, we hold that parents in an adjudication of abuse and
neglect have a statutory right to effective assistance of counsel.
{21} Because we base this
holding on a parent's statutory right to counsel, we do not address whether
parents' rights to effective assistance of counsel during these proceedings is
also constitutionally guaranteed or the standard to be applied to those claims.
1 We would hesitate to extend our
opinion in this direction since the parties did not address this issue and our
opinion could be taken to hold that parents have a constitutional right to
counsel at this stage of the proceedings. That is not the issue before us, and
we decline to address it.
1 Since Mother requests that a presumption of ineffective
assistance of counsel be applied, we do not address the factors Mother claims
weigh in favor of our review. In our view, the presumption that Mother seeks
only requires a sufficient impact on her fundamental right to the care,
custody, and management of her child. We thus decline to review Mother's claim
that her attorney demonstrated other instances of ineffective representation or
that the late filing was only a minimal delay.
{22} We agree with Mother
that adjudicatory proceedings affect a parent's fundamental right in the care,
custody, and management of their children.
See State ex rel. Children, Youth
& Families Dep't v. Maria C.,
2004-NMCA-083, ¶¶ 24-28,
136 N.M. 53,
94
P.3d 796 (noting that, because "[a] parent's fundamental liberty interest
in the care, custody, and management of their children is well
established," "a parent, like a criminal defendant, has a
constitutional right to . . . an opportunity to participate in all critical
stages of abuse and neglect proceedings"). Under Section 32A-4-22(B)(1),
if the trial court finds that a child is abused or neglected, the trial court
may allow the child to remain with the parent "subject to those conditions
and limitations the court may prescribe." The trial court may also give
CYFD supervision of the child or transfer legal custody to the noncustodial
parent or an agency. Section 32A-4-22(B)(2), (3). If the parent is not allowed
to retain custody of the child, the parent will be allowed to visit the child
"unless the court finds that the best interests of the child preclude any
visitation." Section 32A-4-22(D). These statutes demonstrate that an
adjudication of abuse and neglect can seriously impact a parent's care,
custody, and management of a child. We hold that this adjudication's serious
impact on Mother's fundamental interest in Angelina, combined with her right to
effective assistance of counsel at this stage of proceedings, warrants an extension
of the rule articulated in
Robert E.,
1999-NMCA-035, ¶ 10. We hold that
in this case, where a notice of appeal from an adjudication of abuse and
neglect is filed late, this Court will presume that counsel was ineffective and
accept jurisdiction over the appeal.
There Was Sufficient Evidence That Mother Abused and
Neglected Child
{23} Mother argues that
there was not sufficient clear and convincing evidence from which the trial
court could find that Mother had abused and neglected Angelina.
See Shawna C.,
2005-NMCA-066, ¶ 7. "For evidence to be clear and convincing, it must
instantly tilt the scales in the affirmative when weighed against the evidence
in opposition and the fact finder's mind is left with an abiding conviction
that the evidence is true."
Id. (internal quotation marks and
citation omitted). However, this Court does not reweigh the evidence.
See
Vanessa C.,
2000-NMCA-025, ¶ 24. This Court will not substitute its
judgment for that of the fact finder as to any factual matter.
Id. Our
standard of review is thus narrow, confined to the question of "whether,
viewing the evidence in the light most favorable to the prevailing party, the
fact finder could properly determine that the clear and convincing evidence
standard was met."
Shawna C.,
2005-NMCA-066, ¶ 7 (internal
quotation marks and citation omitted).
{24} Mother challenges
the trial court's findings numbers six through thirteen. Regarding the trial
court's finding number seven, the trial court found that Angelina was an abused
child and at risk of further harm under Section 32A-4-2(B)(1). The trial court
found that Mother "did not respond appropriately to the child's injuries
when she saw the child after work and it wasn't until the child's grandmother
saw the child's injuries that the child was taken to the hospital." Mother
argues that "there was no definitive expert testimony" demonstrating
how long it would take for the "full extent of the swelling and
bruising" to appear, "and that there was no way to determine the
exact time the injury occurred." Mother also contends that "there was
apparent agreement that the full extent of Angelina's injury was partially
hidden by her hair." Mother thus mainly contends that when she picked up
Angelina, Angelina's injuries could not reasonably have been apparent to her.
{25} We hold that there
was sufficient evidence to support the trial court's finding number seven. Dr.
Coleman testified that when she examined Angelina two days after the incident,
Angelina had bruises on the right side of her forehead, around her right eye,
chest, right forearm, and most significantly, a great deal of soft tissue
swelling on her scalp, from the right side of her head and extending to the
left side. Both Gore and Mother testified to only seeing a small bruise on
Angelina's forehead, and Castlow did not testify to seeing any bruising, so
that there was no evidence that the bruising resulting from Angelina's injuries
would have been apparent to Mother when picking Angelina up.
{26} Regardless,
Angelina's skull was "broken into many pieces." Dr. Coleman
determined that Angelina's injuries were caused by "great force,"
such as seen in children who fall from second or third story windows or who, in
motor vehicle accidents, are unrestrained or improperly restrained and hit the
windshield. Dr. Coleman opined that in the absence of one of these events,
Angelina's injuries were consistent with child abuse.
{27} Dr. Coleman
described Angelina's injuries as "life-threatening," and stated that
at the time of the injury, Angelina would have been "immediately
symptomatic," and "noticeably ill appearing," would not have
been herself, been vomiting, and either incredibly fussy or very sleepy.
Although she conceded that there was no way to date Angelina's injuries, Dr.
Coleman stated that one had to look at when the child was last seen healthy and
when the child became symptomatic. Mother testified that at 7:30 a.m., Angelina
was healthy. Teertstra testified that Mother related that she had spoken to
Gore around 11 a.m. and that he had told Mother that Angelina had spit up
earlier, appeared sick, and was not quite acting like herself that morning.
Mother was also aware that Angelina had vomited again sometime before 2 p.m.
Mother testified that she was not there when the injuries occurred, strengthening
the inference that the injuries must have occurred before Mother picked up
Angelina and Gore. The trial court could have therefore reasonably inferred
that Angelina's injuries occurred before she became symptomatic, which was at
or before 11 a.m.
{28} At trial,
Mother argued that Angelina's head swelling was not as large as Castlow stated,
that it worsened at the hospital, and that the eye swelling was not visible at
all until then. Mother further argued that the injury could not be seen until Angelina's
hair was completely pulled back and that fourteen-month-old Angelina's hair was
thicker at the time of the incident than in photographs, apparently taken after
the incident, that were shown to her at trial. The fact finder may freely
reject such self-serving testimony,
see State v. Hunter,
2001-NMCA-078,
¶ 16,
131 N.M. 76,
33 P.3d 296, and apparently did so in this case when it
declared Mother's testimony "absolutely unbelievable" and rejected
Gore's untimely explanation of Angelina's injuries as "bologna."
See
Ledbetter v. Webb,
103 N.M. 597, 604,
711 P.2d 874, 881 (1985) (noting
that the trial court's verbal comments can be used to clarify a finding).
{29} There was expert
testimony that following the injury, Angelina would have looked incredibly sick
and that her condition would be "immediately apparent." When Mother
picked up Angelina, she knew that Angelina had been ill that day. She conceded
that she noticed a bruise on Angelina's forehead, and that she looked at her
more closely at this time. She still took Angelina, who was suffering from a
shattered skull and extensive bruising, to the store with her for ten to
fifteen minutes before going to Castlow's home, where Angelina languished alone
in the living room before Castlow noticed her injuries. Castlow confirmed that,
although one had to push back Angelina's hair to see the full extent of the
head swelling, that after one quick glance,
something in Angelina's
appearance had caused her to "double look" at Angelina. Whether or
not the extensive swelling was partially concealed by Angelina's hair, Castlow
testified that the side of Angelina's face was the "size of a
grapefruit" and her eye was partially swollen. Castlow further stated that
Angelina looked like she was not "all there," was glossy-eyed, that
she looked severely injured, and that Angelina's appearance was
"horrifying." This assessment is consistent with Dr. Coleman's
testimony that Angelina would have immediately appeared ill upon being injured.
We hold that this was sufficient clear and convincing evidence to support the
trial court's judgment that, under Section 32A-4-2(B)(1), Mother's inaction in
the face of her daughter's apparent and life-threatening injuries caused
Angelina to be at risk of serious harm.
{30} This same evidence
is also sufficient to support the trial court's finding that Mother negligently
endangered Angelina by leaving the child without medical care for several
hours.
See § 32A-4-2(E)(2). Our holding in
In re Melissa G.,
2001-NMCA-071,
130 N.M. 781,
32 P.3d 790, stands in contrast to the facts of
the case before us. In
Melissa G., we reversed the trial court's
conclusion that, under what is now Section 32A-4-2(E)(2), a mother had
neglected her child.
Melissa G.,
2001-NMCA-071, ¶¶ 16, 21. In
Melissa
G., a mother had failed to discover that her young daughter had been
sexually assaulted.
Id. ¶ 18. The mother had taken a prescription pain
medication and was in bed when the father of her child (and the alleged
perpetrator of the abuse) brought the child home.
Id. ¶¶ 6, 18. The
father had remained in the home for awhile and put the child to bed.
Id.
¶ 18. During the night, the mother had changed the child in the dark as she
usually did when the child wet the bed.
Id. The child did not cry out
during the night.
Id. In the morning, the child had dressed herself, and
did not complain of anything.
Id. The child went to school, where
extensive bruising and signs of sexual assault were discovered.
Id. ¶ 5.
We held that, without a history or pattern of abuse or neglect, this evidence
was insufficient "to put a reasonable parent on notice that something was
amiss."
Id. ¶¶ 20-21. In this case, on the other hand, Mother was
aware that something was wrong with Angelina before she even picked up her
child, in addition to the expert testimony that injuries like Angelina's would
result in immediately apparent signs of trauma. These signs were sufficient to
have put Mother on notice that Angelina required immediate medical attention,
which was not sought until after 7 p.m. that evening.
{31} Regarding finding
number six, Mother argues that there was no evidence that Mother inflicted
Angelina's injuries or that Gore's reports of Angelina vomiting and not acting
like herself should have alerted Mother to Angelina's condition. The trial
court's finding number six found that Angelina had suffered physical abuse
under Section 32A-4-2(B)(2) because Mother had cared for Angelina earlier in
the day, then was told that Angelina was vomiting and was not herself. Section
32A-4-2(B)(2) defines an "`abused child'" as one who has suffered
physical abuse "inflicted or caused by the child's parent, guardian or
custodian." While we agree that the trial court's factual findings do not
support a legal conclusion that Mother "inflicted or caused" Angelina's
physical abuse under Section 32A-4-2(B)(2), we consider this finding
superfluous in light of our discussion above.
See Ratzlaff v. Seven Bar
Flying Serv., Inc.,
98 N.M. 159, 165,
646 P.2d 586, 592 (Ct. App. 1982)
(stating that a finding that is not necessary to support the trial court's
judgment may be disregarded). We also consider the trial court's finding number
eight and its discussion in finding number nine that Mother knew or should have
known of Gore's abuse due to Angelina's previous fall from a highchair while in
Gore's care, to be equally superfluous. Finally, since Mother did not provide
an argument for her challenge to the remainder of the trial court's findings,
we do not address them either.
See Rule
12-213(A)(4) NMRA (requiring
that findings of fact be specifically attacked). The trial court's judgment
that Angelina was abused was supported by substantial evidence.
RODERICK T. KENNEDY, Judge
MICHAEL D. BUSTAMANTE, Chief Judge