STATE EX REL. CHILDREN, YOUTH & FAMILIES DEP'T V. MELVIN
C., 2015-NMCA-067, 350 P.3d 1251
STATE OF NEW MEXICO ex rel. CHILDREN,
YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee,
v.
MELVIN C., Respondent-Appellant,
and
SAMANTHA M., Respondent,
IN THE MATTER OF DAEVON DRE C., Child.
COURT OF APPEALS OF NEW MEXICO
2015-NMCA-067, 350 P.3d 1251
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY, Sandra
A. Price, District Judge.
Released for Publication July 7, 2015.
Children, Youth and Families Department,
Charles E. Neelley, Chief Children’s Court Attorney, Kelly P. O’Neill,
Children’s Court Attorney, Albuquerque, NM, for Appellee.
Alex Chisholm, Albuquerque, NM, for
Appellant.
Richard J. Austin, PC, Richard J. Austin,
Farmington, NM, Guardian Ad Litem.
RODERICK T. KENNEDY, Judge. WE CONCUR:
JONATHAN B. SUTIN, Judge, TIMOTHY L. GARCIA, Judge.
AUTHOR: RODERICK T. KENNEDY.
{1} This case resides
between our Opinion in
State ex rel. Children, Youth & Families Dep’t v.
Christopher B.,
2014-NMCA-016,
316 P.3d 918, and the Supreme Court’s
Opinion in
In re Grace H.,
2014-NMSC-034, 335 P.3d 746. In this case, we
hold that, when a parent pleads no contest to abuse and neglect and the lower
court proceeds with an adjudication on that basis, the court, if it terminates
parental rights, must proceed under NMSA 1978, Section
32A-4-28(B)(2) (2005).
The children’s court (hereinafter, the court) erred here by ignoring its earlier
adjudication and changing course, absent a dispositional hearing based on its
finding of neglect. It erred by allowing termination of parental rights by
presumptive abandonment under NMSA 1978, Section
32A-4-22(B)(1) and (B)(3)
(2005) when it had already adjudicated neglect. Father wished to make efforts
toward reunification by pursuing a treatment plan as the court and the
Children, Youth and Families Department (CYFD) had discussed with him at the
time of the adjudication of neglect. The court was obligated to proceed under
Section 32A-4-22(B)(2) to resolve Father’s case. We therefore reverse the
court’s termination of Father’s parental rights.
{2} Child was born in
March 2013 to Melvin C. (Father) and Samantha M. (Mother) and tested positive
for illegal drugs. Following a Family Centered Meeting on March 5, 2013, where
Father and Mother appeared telephonically, an amended neglect or abuse petition
was filed by CYFD. The court entered an ex parte custody order on March 7,
2013, giving CYFD legal and physical custody of Child. A custody hearing was
held on March 18, 2013, which Father did not attend. During that hearing, the
court found that Child could not be safely returned to Father and Mother due to
substance abuse and “the inability to provide safe housing.” A custody hearing
order filed on April 8, 2013, provided notice of a subsequent adjudicatory and
dispositional hearing. On August 6, 2013, CYFD filed a motion for termination
of parental rights as to both Father and Mother, alleging abandonment, abuse
and neglect, and presumptive abandonment as grounds for termination. Father had
no contact with Child or CYFD from March 2013 until September 2013, when he was
served with the petition for neglect and abuse in a prison in Colorado to which
he had been sentenced a few months earlier. The court set a hearing for October
28, 2013, on CYFD’s abuse/neglect petition and its motion to terminate parental
rights (TPR). The court granted a continuance of that hearing, and counsel for
Father requested that the court move forward with the adjudicatory hearing, but
postpone the TPR hearing that had been scheduled. Accordingly, Father filed a
motion to continue the TPR hearing. The motion stated, in particular, that
Father “want[ed] to participate and work a treatment plan in an attempt to
reunify with [Child].” The motion requested that the court vacate the portion
of the upcoming November 4, 2013, hearing “pertain[ing] to the termination of
[his] parental rights” so that Father has the “opportunity to work a treatment
plan” and can “move toward[] reunification with . . . [C]hild.” The
motion was granted, and the court subsequently filed a notice of hearing,
identifying the November 4 hearing as an adjudicatory hearing as to Father
only. As to Mother, however, the purpose of the November 4 hearing was to allow
CYFD to pursue termination of Mother’s parental rights.
{3} At the November 4
hearing that Father entered a no contest plea to an allegation of neglect under
NMSA 1978, Section
32A-4-2(E)(2) (2009). The court questioned Father about the
nature of his plea and explained “the possible dispositions for a finding of
neglect.” In doing so, the court explained what would happen if there was a
stipulation to neglect in the form of a plea: “The court will hear from [CYFD]
and the court will enter a finding, pursuant to your agreement, to a finding of
neglect.” Father pleaded no contest to neglect and abuse, and Child was so
adjudicated as to Father.
{4} While CYFD pursued
termination of Mother’s parental rights based on abandonment during the
November 4 hearing, Father’s involvement was limited to the neglect and abuse
adjudication. The court explained to Father that one of the consequences of its
making a finding of neglect was the development of a treatment plan. Father
stated that he understood the court’s explanation. In the course of
establishing the factual basis for the plea, CYFD made a short statement,
concluding that, for a variety of reasons, Father was “unable to provide the
needs of . . . Child.” CYFD’s only reference to abandonment by Father came in
the context of the TPR hearing against Mother at that time. Despite CYFD’s
failure to mention abandonment as grounds for an adjudication of neglect as to
Father, the court added: “I’m assuming also part of this is, you mentioned it,
but also based on a failure to provide because he abandoned . . . [C]hild,” to
which CYFD answered simply, “yes.”
{5} Following CYFD’s
foundational statements, the court accepted Father’s stipulation to neglect and
made “a finding of neglect, pursuant to [Section 32A-4-2](E)(2).”
Based
on Father’s stipulation and CYFD’s statement, the court postponed the
dispositional hearing, stating: “Let’s try to set it out thirty days and,
hopefully, we will have a better idea as to [Father’s] position and what can be
offered or what can be done.”
{6} On November 21,
2013, CYFD informally notified Father that it intended to pursue termination of
his parental rights at the next hearing scheduled for December 9, rather than
conduct a dispositional hearing. In response, on November 25, 2013, Father
filed a motion to vacate the TPR hearing. The motion was denied. The notice of
hearing issued on December 4, 2013, listed the nature of the December 9, 2013,
hearing as “[d]ispositional [and] TPR.” Thirty-five days after the adjudicatory
hearing, the court held a hearing, during which it characterized the previous
adjudicatory hearing as a “little meeting.”
{7} At the beginning of
the December 9 hearing, which occurred after the Rule
10-344(C) NMRA thirty-day
deadline for conducting dispositional hearings, Father’s counsel made the
argument that, under the statutory scheme, Father possessed the “opportunity to
have a dispositional order entered and be permitted to work a treatment plan”
and that the TPR hearing therefore should have been vacated. Counsel also
pointed out that Father’s November 4 stipulation to neglect was made “in part
because he believed he would be able to work a disposition plan” and that the
statutory scheme of Section 32A-4-22(C) “provides the court shall order [CYFD]
to implement a treatment plan whenever there has been a finding of neglect or
abuse.” In response to CYFD’s allegations of abandonment, counsel asserted that
Father attempted to participate in the placement of Child and that Father did
not abandon Child. These arguments were unavailing. After hearing arguments
from the parties, the court ruled that it would proceed with a TPR hearing
“based only on abandonment.” The court acknowledged the previous finding and adjudication
of neglect.
The court [will] not use any
findings made at previous hearings regarding any kinds of findings. . . . I
know there was an entry of a stipulation based on some . . . representations
that . . . there would be a treatment plan he would be entitled to work. The
court will not consider that adjudication.
{8} CYFD then proceeded
to establish the basis for termination of Father’s parental rights based solely
on an abandonment theory. Because CYFD intended to proceed only on the theory
of abandonment, the court determined it would be appropriate to proceed.
Relying on
Christopher B.,
2014-NMCA-016, ¶ 12, the court believed it
was appropriate to allow CYFD to “move forward without even a finding of
neglect or abuse prior to proceeding on the theory of terminating someone’s
parental rights based on a theory of abandonment.” The court emphasized that it
was not considering a termination based on failure to follow a treatment plan
because a treatment plan had not been adopted in the case, further stating that
CYFD has a right, when claiming abandonment, to proceed on that theory at any
time.
{9} After hearing
testimony in the case, the court found that CYFD had proven, by clear and
convincing evidence, Father abandoned Child. The court stated that “abandonment
is a separate analysis in this case,” and “it is not necessary that [CYFD]
develop a treatment plan when the allegation of abandonment is being made and
pursued and proven.” In its findings of fact and conclusions of law, the court
acknowledged that “[a d]ispositional [h]earing was not held” in the case, and
it had allowed CYFD “to proceed only on the allegations of [a]bandonment.” The
court concluded that “[c]lear and convincing evidence exists that Father
abandoned Child pursuant to Section 32A-4-28(B)(1) of the Children’s Code.” In
its judgment, the court also added presumptive abandonment under Section
32A-4-28(B)(3) as grounds for termination. The court accordingly terminated
Father’s parental rights on February 10, 2014. Father filed a timely appeal.
{10} “This Court reviews
issues of statutory interpretation de novo.”
In re Grace H.,
2014-NMSC-034, ¶ 34. The parties dispute whether the court properly complied
with the Abuse and Neglect Act, NMSA 1978, §§
32A-4-1 to -34 (1993, as amended
through 2014), whether the correct subsection of Section 32A-4-28 was applied
in this case, and whether the court violated Father’s due process rights.
A. Overview
of New Mexico Abuse and Neglect Proceedings
{11} The procedures
required by the Abuse and Neglect Act are of paramount importance in this case.
Accordingly, we begin with an overview of the relevant steps the Children’s
Code sets out in an abuse and neglect proceeding.
See In re Esther V.,
2011-NMSC-005, ¶ 25,
149 N.M. 315,
248 P.3d 863 (providing an “[o]verview of
New Mexico [a]buse and [n]eglect [p]roceedings” (emphasis omitted)). An abuse
and neglect proceeding begins when CYFD files a petition with the court
alleging abuse or neglect. § 32A-4-15. The court may then issue an ex parte
custody order based on probable cause awarding CYFD custody of the child until
a custody hearing is held. § 32A-4-16(A); § 32A-4-18(A). The court then holds a
custody hearing and, if during that custody hearing, it finds probable cause to
believe the child has been abused or neglected, the court determines custody of
the child pending an adjudicatory hearing on the merits of the petition.
In
re Esther V.,
2011-NMSC-005, ¶ 27; § 32A-4-18(A), (D). These steps were met
in this case.
{12} An adjudicatory
hearing must commence within sixty days of “service on the respondent.” §
32A-4-19(A); Rule
10-343(A) NMRA (listing events from which the sixty-day time
limit runs). During an adjudicatory hearing, the court determines whether the
allegations made in the petition are true.
In re Esther V.,
2011-NMSC-005, ¶ 28. Parents are entitled to due process protections during the
adjudicatory hearing in an abuse or neglect case.
State ex rel. Children,
Youth & Families Dep’t v. Kathleen D.C.,
2007-NMSC-018, ¶ 12,
141 N.M.
535,
157 P.3d 714. These protections include timely notice, reasonable
opportunity to respond to the charges, reasonable opportunity to confront
adverse witnesses and present evidence, representation by counsel when such is
required by statute, and opportunity to be heard by an impartial decisionmaker.
Id.
{13} During the
adjudicatory hearing, the court may make a determination of abuse or neglect on
the basis of a valid admission. § 32A-4-20(H). When it does so, the court
“shall enter an order finding that the child is neglected or abused.” Section
32A-4-20(H); Rule
10-342(A)(2) NMRA (stating a valid admission may be made by
entering a plea of no contest to the allegations in the petition).
But see
Rule 10-342(D) (“The court shall not enter judgment upon an admission,
including the entry of a no contest plea . . . without
making such inquiry as shall satisfy the court that there is a factual basis
for the admission . . . [and] shall obtain support for a
finding that one or more of the statutory grounds alleged in the petition are
true.”). In this case, an adjudication of neglect was made on November 4 and
acknowledged by the court. Following a finding of neglect or abuse during the
adjudicatory hearing, the court may make an immediate disposition of the case.
Rule 10-344(C). If the court does not make a disposition of the case
immediately, a dispositional hearing must “commence within thirty . . . days
after conclusion of the adjudicatory hearing.”
Id. During the
dispositional stage, the court issues “factual findings relevant to a custody
determination, determines custody of the child, and establishes a treatment
plan.”
In re Esther V.,
2011-NMSC-005, ¶ 29;
see § 32A-4-22.
Judicial review hearings are held later to monitor parents’ progress and compliance
with the treatment plan. Section 32A-4-25. Permanency hearings are later held
to determine the appropriate permanent placement of the child. Section
32A-4-25.1.
{14} At any point during
an abuse or neglect proceeding, CYFD may file a motion to terminate parental
rights. Section 32A-4-29(A). When this motion is filed, CYFD must request a
hearing on the motion, and the hearing must commence at least thirty, and no
more than sixty, days after service. Section 32A-4-29(D). Termination of
parental rights may be based on abandonment, abuse or neglect, or presumptive
abandonment. Section 32A-4-28(B), (C). Section 32A-4-28(B)(1) requires a
court to terminate parental rights to a child when “there has been an
abandonment of the child by his parents[.]” Similarly, Subsection (B)(3)
provides for presumptive abandonment where certain criteria are met.
(3) [T]he
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.
Section 32A-4-28(B)(3). Abandonment cannot be supported “by
simply a finding that a parent was incarcerated during the period of alleged abandonment[.]”
Christopher B., 2014-NMCA-016, ¶ 12.
{15} Subsection (B)(2)
governs what happens following a finding of abuse and neglect. It establishes a
statutory prerequisite that CYFD put forth reasonable efforts to assist the
parent and that requirement must be satisfied before parental rights can be
lawfully terminated.
State ex rel. Children, Youth & Families Dep’t v.
Patricia H.,
2002-NMCA-061, ¶ 21,
132 N.M. 299,
47 P.3d 859. Subsection
(B)(2) requires termination where
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.
Section 32A-4-2(E)(2) defines “neglected child” as a child
“who is without proper parental care and control or subsistence, education,
medical or other care or control necessary for the child’s well-being because
of the faults or habits of the child’s parent, . . . or refusal of the parent,
. . . when able to do so, to provide them[.]” A court seeking to terminate
parental rights based on abuse or neglect must find that (1) “the child was
abused or neglected,” (2) “causes of the abuse or neglect were unlikely to
change in the foreseeable future,” and (3) “CYFD made reasonable efforts to
assist the parent in adjusting the conditions.” State ex rel. Children,
Youth & Families Dep’t v. Benjamin O., 2007-NMCA-070, ¶ 30, 141 N.M.
692, 160 P.3d 601 (alterations, internal quotation marks, and citation
omitted).
B. The Court
Was Required to Hold a Dispositional Hearing After Entering a Finding That
Father Neglected Child
1. The
Court Did Not Comply With the Abuse and Neglect Act’s Procedures
{16} CYFD asserts that
the court did not err by failing to issue a treatment plan and reasons that,
under our case law, a court is not required to create a treatment plan when
CYFD pursues TPR pursuant to Subsections (B)(1) and (B)(3). While this might be
so if the court was proceeding solely under Subsections (B)(1) and (B)(3) as
applied to the present case, this argument misses the mark. After a court makes
a finding of neglect in an adjudicatory proceeding as occurred here, CYFD has a
statutory duty to make reasonable efforts to assist a parent with
reunification. Further, after having adjudicated neglect as occurred here, a
court may not choose to ignore that ruling.
{17} Where there is a
finding of neglect or abuse under Subsection (B)(2), the plain language of the
statute requires a dispositional hearing and the creation of a treatment plan
therein. The court issued a finding of neglect based on Father’s no contest
plea to having neglected Child. As a result, the court was statutorily required
to hold a dispostional hearing to approve a treatment plan within thirty days
of the adjudicatory hearing. Section 32A-4-22(C). It did not. Instead, the
court held a TPR hearing thirty-five days after the court adjudicated Father to
have neglected Child at the adjudicatory hearing on November 4. The court
grounded its refusal to hold a dispositional hearing in December on its
interpretation of
Christopher B. We shall address whether
Christopher
B. applies in this case.
{18} In
Christopher B.,
this Court affirmed a court’s decision allowing CYFD to proceed with a TPR
solely on an abandonment theory.
2014-NMCA-016, ¶ 12. There, the allegations of
abuse or neglect in the case had already been dismissed for insufficient
pleading.
Id. ¶ 11. The facts of
Christopher B. are dissimilar to
the facts here. However, this Court did discuss Section 32A-4-28 and draw
important distinctions between abandonment under Subsection (B)(1) and abuse or
neglect under Subsection (B)(2). For example, we recognized that abuse or
neglect and abandonment are “separate and independent grounds for the
termination of parental rights” and that “[a]bandonment is a stand-alone basis
for termination of parental rights.”
Christopher B.,
2014-NMCA-016, ¶¶
9, 12. We concluded that, because abuse or neglect was a non-issue in that case
by virtue of the dismissal, the father’s due process rights had not been
violated when CYFD proceeded on an abandonment theory.
Id. ¶¶ 11-12. We
nevertheless reiterated the holding made in
Benjamin O. that “where the
. . . court adjudicates a child as having been abused or neglected by a parent,
CYFD is statutorily required to create a treatment plan.”
Christopher B.,
2014-NMCA-016, ¶ 9.
{19} The court below
relied on the language regarding abandonment in
Christopher B. without
considering the context in which that decision was made when it allowed the TPR
hearing to proceed solely on the theory of abandonment.
Christopher B.
specifically acknowledges the statutory requirement for a treatment plan when
the court makes a finding of neglect, as it did in this case.
Id.
Therefore, while CYFD carries no duty to assist parents with reunification when
it proceeds to termination of parental rights under an abandonment theory
alone, an adjudication of neglect under Section 32A-4-22(C) triggers CYFD’s
statutory obligation to create and work a treatment plan and to follow Section
32A-4-28(B)(2). Here, the adjudication of neglect was sufficient to trigger
CYFD’s obligation to create a treatment plan and the court’s obligation to hold
a dispositional hearing. The court never acted to assess the propriety of a
treatment plan, nor did it order that one be created. The adjudication was
never withdrawn, just ignored when the court stated: “I know there was an entry
of a stipulation based on . . . some representations that . . . there
would be a treatment plan he would be entitled to work. The court will not
consider that adjudication.” This statement was insufficient to vacate the
adjudications of neglect. It also does not serve as a dismissal of the neglect
petition as was done in
Christopher B. The district court therefore
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 statute.
2. The
Court Did Not Use the Appropriate Subsection of 32A-4-28 When It Terminated
Father’s Parental Rights
{20} CYFD argues that
Father did not show a legitimate desire to take responsibility for Child prior
to the TPR as required by
In re Grace H., that he was therefore not
entitled to a TPR analysis under Subsection (B)(2), and that the court properly
terminated Father’s rights pursuant to Subsection (B)(1). The argument
misstates the statutory interpretation of Section 32A-4-28 made in
In re
Grace H.
{21} In
In re Grace H.,
the Supreme Court addressed the ambiguity regarding when to terminate parental
rights on a theory of abandonment under Subsection (B)(1) versus neglect by
abandonment under Subsection (B)(2).
In re Grace H.,
2014-NMSC-034, ¶¶
35, 39. During its attempts to terminate parental rights in that case, CYFD
failed to identify whether it sought termination for abandonment under
Subsection (B)(1) or neglect by abandonment under Subsection (B)(2).
In re
Grace H.,
2014-NMSC-034, ¶ 21. According to the Supreme Court, the entire
process was conducted as an abuse and neglect proceeding such that the
termination of parental rights should have been conducted pursuant to
Subsection (B)(2), but the court ultimately terminated the father’s parental
rights based on Subsection (B)(1) abandonment.
In re Grace H.,
2014-NMSC-034, ¶ 40. Because CYFD had treated the matter “throughout the life
of the case,” the Supreme Court determined that Subsection (B)(2) was the
subsection that the court should have used in considering the TPR.
In re
Grace H.,
2014-NMSC-034, ¶ 66 (internal quotation marks omitted). The
Supreme Court held that 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.”
In
re Grace H.,
2014-NMSC-034, ¶¶ 43, 49. This holding stemmed from the
Supreme Court’s interpretation of legislative intent in which it concluded that
“the Legislature intended Subsection (B)(1) to be used when there is no parent
present with whom [CYFD] could work toward[] reunification prior to
termination.”
In re Grace H.,
2014-NMSC-034, ¶ 41.
{22} The present case
lends more support to Father’s position than CYFD’s position. In
In re Grace
H., CYFD did not identify which subsection of Section 32A-4-28 it
sought to use in terminating parental rights.
In re Grace H.,
2014-NMSC-034, ¶ 21 (stating that CYFD proceeded with TPR pursuant to Section
32A-4-28). In this case, CYFD specifically stated its intention to use both
Subsections (B)(1) and (B)(2) in Father’s TPR. Thus, CYFD demonstrated, during
the November hearing, a clear intent to pursue Father’s TPR, at least to some
extent, according to Subsection (B)(2). That intent, coupled with the finding
of neglect and the discussion during the adjudicatory hearing regarding the
development of a treatment plan, indicates that the parties were proceeding
under Subsection (B)(2) until the court later decided to proceed with the TPR
hearing before a treatment plan was issued.
{23} CYFD argues that,
because Father had no contact with Child and made little effort to get in
contact with Child, Father had no “legitimate desire” to take responsibility
for Child. We disagree. CYFD interprets the phrase “legitimate desire” used in
In
re Grace H. too literally.
2014-NMSC-034, ¶ 43 (“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.”). When read together with the
case’s legislative interpretation of Subsections (B)(1) and (B)(2),
In re
Grace H.’s “legitimate desire” language references a parent who “is present
and willing to participate,” even if they do so late in the game, so long as
they do so prior to termination.
2014-NMSC-034, ¶ 41. Despite the approximate
seven-month delay between CYFD having taken custody of Child and Father’s
October 2013 motion in which Father indicated his desire to reunify with Child
and his willingness to work a treatment plan, CYFD stipulated to Father’s
November 4 no contest plea to the neglect allegation. By failing to proceed
under its adjudication of abuse and neglect, the court deprived both Father and
itself of any chance to assess the “legitimacy” of Father’s case. Rather than
support CYFD’s argument that termination under Subsection (B)(1) was
appropriate in this case,
In re Grace H.—the Supreme Court’s statutory
interpretation in particular—precludes Subsection (B)(1)’s applicability to
this case. As discussed earlier in this Opinion, the record reflects the
parties’ and the court’s intention to proceed in a manner consistent with a
neglect adjudication. Under
In re Grace H., application of Subsection
(B)(1) was therefore inappropriate under the circumstances of this case.
{24} CYFD argues further
that Father’s rights were properly terminated pursuant to a theory of
“presumptive abandonment.”
See § 32A-4-28(B)(3); § 32A4-28(C) (stating
that a rebuttable presumption of abandonment exists when the court finds that
each rebuttable presumption of abandonment exists when the court finds that
each of the six factors enumerated in Section 32A-4-28(B)(3) have been met).
CYFD argues that presumptive abandonment is a stand-alone basis for termintion
pursuant to which the children’s court may terminate parental rights without
the prerequisite opportunity for the parent to comply with a court-ordered
treatment plan.
{25} Although the court
cited Section 32A-4-28(B)(3) in its final judgment as one ground for its
decision to terminate Father’s parental rights, the court’s findings of fact
did not address the requisite elements of presumptive abandonment.
See §
32A-4-28(B)(3) (enumerating the elements of presumptive abandonment).
Additionally, CYFD has failed to demonstrate whether, during the hearing on its
motion to terminate Father’s parental rights, it presented any evidence
pertaining to the elements of presumptive abandonment that might support the
court’s conclusion in that regard. Under these circumstances, we reject the
court’s factually unsupported conclusion and CYFD’s unsupported assertion that
presumptive abandonment was an appropriate basis upon which to terminate
Father’s parental rights.
{26} The court terminated
Father’s parental rights under abandonment after making a finding of neglect.
Once as the court entered a finding of neglect, it was statutorily required to
conduct a dispositional hearing and implement a treatment plan. Instead, the
court allowed CYFD to pursue termination of Father’s parental rights solely on an
abandonment theory, ignoring its previous finding, which remained unaltered for
subsequent proceeding. The court erred in terminating Father’s rights without
having fulfilled its statutorily required duties following an adjudication of
neglect. We therefore reverse the court’s order terminating Father’s parental
rights and remand the case to the court for a dispositional hearing in
accordance with the Abuse and Neglect Act.
RODERICK T. KENNEDY, Judge