{ "id": 12167631, "name": "IN THE MATTER OF THE ADOPTION PETITION OF DARLA D. and PATTY R., Petitioners-Appellees, v. GRACE R., Respondent-Appellant, and IN THE MATTER OF TRISTAN R., Child", "name_abbreviation": "Adoption Petition of Darla D. v. Grace R.", "decision_date": "2016-08-31", "docket_number": "Docket No. 34,327", "first_page": "568", "last_page": "588", "citations": [ { "type": "official", "cite": "2016-NMCA-093" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2002-NMCA-061", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260729 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0299-01" ] }, { "cite": "83 N.M. 787", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5336899 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0787-01" ] }, { "cite": "1972-NMSC-045", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "2011-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4251200 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/150/0084-01" ] }, { "cite": "2006-NMCA-001", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2548591 ], "weight": 3, "pin_cites": [ { 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"opinion_index": 0, "case_paths": [ "/nm/146/0014-01" ] }, { "cite": "2004-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77119 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0768-01" ] }, { "cite": "2000-NMCA-049", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217098 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0146-01" ] }, { "cite": "2002-NMCA-103", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260687 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0772-01" ] }, { "cite": "2009-NMCA-129", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4245910 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0374-01" ] }, { "cite": "117 N.M. 31", "category": 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{ "cite": "1995-NMSC-026", "category": "reporters:neutral", "reporter": "NMSC", "weight": 5, "pin_cites": [ { "page": "\u00b6 44" }, { "page": "\u00b6 47" }, { "page": "\u00b6 49" }, { "parenthetical": "stating that a party seeking adoption of a child \"must not by their own conduct have intentionally contributed to the factors causing the disintegration of the parent-child relationship\"" } ], "opinion_index": 0 }, { "cite": "2000-NMCA-035", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106549 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0813-01" ] }, { "cite": "2001-NMCA-071", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352419 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0781-01" ] }, { "cite": "120 N.M. 463", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559008 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/120/0463-01" ] }, { "cite": "1995-NMCA-087", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 2" }, { "page": "\u00b6 2" } ], "opinion_index": 0 }, { "cite": "98 N.M. 198", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582491 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0198-01" ] }, { "cite": "1982-NMSC-065", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0 }, { "cite": "2000-NMCA-025", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106573 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0701-01" ] }, { "cite": "2004-NMCA-083", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224600 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 37" }, { "page": "\u00b6 34" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0053-01" ] }, { "cite": "320 P.3d 16", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-107", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4078352 ], "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm-app/5/0146-01" ] }, { "cite": "116 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727677 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/116/0047-01" ] }, { "cite": "1993-NMCA-099", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0 }, { "cite": "98 N.M. 340", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582604 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0340-01" ] }, { "cite": "1982-NMCA-094", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 47" } ], "opinion_index": 0 }, { "cite": "1999-NMCA-077", "category": 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appoint\" a GAL" }, { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0670-01" ] }, { "cite": "97 N.M. 611", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555057 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0611-01" ] }, { "cite": "1982-NMCA-047", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0 }, { "cite": "116 N.M. 708", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727657 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/116/0708-01" ] }, { "cite": "1993-NMCA-144", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0 }, { "cite": "110 N.M. 454", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716976 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/110/0454-01" ] }, { "cite": "1990-NMSC-071", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 3" } ], "opinion_index": 0 }, { "cite": "1997-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 142269 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0711-01" ] }, { "cite": "455 U.S. 745", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11307633 ], "year": 1982, "pin_cites": [ { "page": "753", "parenthetical": "recognizing \"[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child\"" } ], "opinion_index": 0, "case_paths": [ "/us/455/0745-01" ] }, { "cite": "2009-NMCA-025", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243080 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0636-01" ] } ], "analysis": { "cardinality": 2053, "char_count": 69118, "ocr_confidence": 0.781, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2468277108047612 }, "sha256": "35eb3a6865abe37edb2430030d9502e597af1e12ff53c7ef8e8528c368d68ecc", "simhash": "1:931d2e26488ad6d2", "word_count": 11191 }, "last_updated": "2023-07-14T21:58:07.326433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Gerald E. Baca, District Judge", "LINDA M. VANZI, Judge", "JONATHAN B. SUTIN, Judge", "J. MILES HANISEE, Judge" ], "parties": [ "IN THE MATTER OF THE ADOPTION PETITION OF DARLA D. and PATTY R., Petitioners-Appellees, v. GRACE R., Respondent-Appellant, and IN THE MATTER OF TRISTAN R., Child." ], "opinions": [ { "text": "OPINION\nVANZI, Judge.\n{1} Grace R. (Mother) appeals from the district court\u2019s letter decision and decree of adoption and termination of parental rights, terminating her parental rights to Tristan R. (Child) and granting the verified petition for adoption and termination of parental rights (the petition) filed by Darla D. and Patty R. to adopt Child pursuant to the provisions of the Adoption Act, NMSA 1978, \u00a7\u00a7 32A-5-1 to -45 (1993, as amended through 2012). Mother challenges the letter decision and decree on numerous grounds, including that her constitutional and statutory rights were violated and that there was insufficient evidence to support the termination of her parental rights. We agree with Mother that multiple procedural and constitutional violations infected the proceedings below. We further conclude that the district court\u2019s rulings that Mother abused and neglected Child and that the conditions and causes of such neglect and abuse are unlikely to change in the foreseeable future are not, as they must be, supported by clear and convincing evidence. We therefore reverse.\nBACKGROUND\n{2} W e begin with an overview of the factual and procedural background. Additional details necessary to our analysis of particular issues are provided in the discussion section below.\n{3} Mother, who suffers from depression and post-traumatic stress disorder as well as a physical illness, has been receiving support and therapy services through Life Link since about August 2009. In May 2013 Life Link lost funding for the program that subsidized Mother\u2019s rent, requiring Mother to move from the home in Santa Fe, New Mexico that she had been sharing with her boyfriend, Child, and Child\u2019s older sister. Concerned about finding housing she could afford, Mother became depressed and overwhelmed. On the morning of May 23,2013, with a few days left to move and her daughter getting ready for summer school, Mother got into an argument with her boyfriend and began yelling at him. When he tried to restrain her, Mother \u201cscratched and bit at him[.]\u201d The police were called, and Mother was arrested and jailed for five days. She pleaded guilty to disorderly conduct and was sentenced to ten hours of community service and six months of unsupervised probation.\n{4} While Mother was in jail, her children remained with her boyfriend. The Children, Youth and Families Department (CYFD) checked on the welfare of the children and determined that they were safe in his care. When Mother was released from jail, she contacted the SantaFe CYFD office and asked CYFD worker Denise Shirley for help. Mother explained to Shirley that she felt her emotional stability was at risk: She was going to lose her home and had no family support, and she was requesting services offered by CYFD because they had been helpful in the past.\n{5} CYFD and Mother agreed on a safety plan for the care of the children while Mother sought intensive treatment from Life Link to address her anxiety disorder and to help with coping skills. The safety plan provided that Child\u2019s older sister would fly to New Jersey to live with her biological father and Child would reside with his paternal grandmother, Darla D. (Grandmother). Although the children were not in CYFD custody, the safety plan was to remain \u201cin effect until further reassessment by the family\u2019s CYFD caseworker.\u201d\n{6} On May 31, 2013, Grandmother and her partner, Patty R., (collectively, Petitioners) picked up Child at Mother\u2019s residence and took him to their home in Mora, New Mexico. While Child was living with Petitioners, Mother saw a counselor and caseworker at Life Link. She was placed on a waiting list for the Life Link intensive program but participated in the program as a \u201ccasual member\u201d between July and September, attending therapy three times a week. In September 2013 Mother became an official member of the program. At the time of trial, Mother continued to receive counseling through Life Link.\n{7} During the summer of 2013, Mother talked to Child on the phone at least once a week. Between August and September, she also saw Child four times when Grandmother was in Santa Fe with him. Later, Mother started calling Child nightly. However, Petitioners told Mother that the nightly calls were disruptive. They set up a schedule for Mother to call two days a week but sometimes did not answer the phone. Mother left messages stating her frustration with not being able to talk to Child.\n{8} In early October 2013 Mother told Grandmother that she wanted to begin to reintegrate Child back into her life and that she was hoping to have him back in Santa Fe after Christmas. In November 2013 Grandmother had a disagreement with Mother concerning how often Mother could speak with Child and, shortly thereafter, Mother learned that Grandmother was trying to \u201cserve [her] with something.\u201d In fact, Grandmother had filed a petition for a restraining order (TRO petition) against Mother in the San Miguel County District Court, seeking to prevent Mother from having any contact with her or Child. The TRO petition was dismissed in early December 2013, after the district court held a hearing and concluded that Mother should visit Child and that phone calls should occur regularly. At that point, Mother had not seen Child in about a month and a half.\n{9} In November 2013 after the TRO petition was filed, Mother was served with Petitioners\u2019 petition to terminate parental rights and to adopt Child in a closed adoption. The petition, which had been filed almost a month earlier in a separate proceeding in the district court, sought termination of the parental rights of Child\u2019s biological parents \u201con the basis of voluntary relinquishment of parental rights\u201d and requested a judgment declaring the closed adoption of Child by Petitioners.\n{10} On March 3, 2014, after a hearing, the district court appointed a guardian ad litem (GAL) \u2014 selected by Petitioners \u2014 for Child. The court held a merits hearing on the petition (for ease of reference, trial) on July 15 and 25, 2014, and entered its letter decision nearly three months later, on October 8, 2014. The letter decision contains no factual findings and merely states the following conclusions: Child \u201chas been abused or neglected while in the care and custody of [Mother], and the conditions and causes of the neglect or abuse are unlikely to change in the foreseeable future\u201d; Child \u201chas been abandoned by his parents in that [C]hild has been placed in the care of [Petitioners by [Mother]\u201d; and \u201call of the conditions set forth in Section 32A-5-15(B)(3)(a-e) . . . exist and have not been rebutted by [Mother.]\u201d No party filed proposed findings of fact and conclusions of law. The decree of adoption and termination of parental rights was filed on November 5, 2014. This appeal followed.\nDISCUSSION\n{11} Our courts have repeatedly recognized that a biological parent\u2019s right to the care and custody of her child implicates fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions. See State ex rel. Children, Youth & Families Dep\u2019t v. John R., 2009-NMCA-025, \u00b6 27, 145 N.M. 636, 203 P.3d 167 (stating that \u201ca parent has a fundamental interest in the care, custody, and control of his or her children\u201d); see also Santosky v. Kramer, 455 U.S. 745, 753 (1982) (recognizing \u201c[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child\u201d); State ex rel. Children, Youth & Families Dep't v. Joe R., 1997-NMSC-038, \u00b6 29, 123 N.M. 711, 945 P.2d 76 (\u201c[A parent\u2019s] rights and obligations ... are protected by his constitutional right to due process.\u201d); Ronald A. v. State ex rel. Human Servs. Dep\u2019t, 1990-NMSC-071, \u00b6 3, 110 N.M. 454, 797 P.2d 243 (noting that a parent\u2019s right to custody is constitutionally protected). Although a parent\u2019s right is fundamental and superior to the claims of other persons and the government, it is not absolute. See In re Adoption of Francisco A., 1993-NMCA-144, \u00b6 20, 116 N.M. 708, 866 P.2d 1175 (\u201cIt is well established in New Mexico that parents do not have absolute rights in their children; rather parental rights are secondary to the best interests and welfare of the children.\u201d); In re Adoption of Bradfield, 1982-NMCA-047, \u00b6 16, 97 N.M. 611, 642 P.2d 214 (noting that \u201c[t]he paramount issue in an adoption proceeding ... is the welfare of the child\u201d). Nevertheless, to comply with due process requirements, actions to terminate a parent\u2019s rights \u201cmust be conducted with scrupulous fairness.\u201d State ex rel. Children, Youth & Families Dep\u2019t v. Lorena R., 1999-NMCA-035, \u00b6 19, 126 N.M. 670, 974 P.2d 164 (alteration, internal quotation marks, and citation omitted). The provisions of the Adoption Act governing proceedings for adoption of children and concurrent termination of parental rights, discussed below, reflect the constitutional dimension of the rights at stake.\n{12} Mother makes several arguments on appeal. She contends that the district court disregarded due process and statutory requirements for proceedings to terminate parental rights, including by failing to inform her of her right to court-appointed counsel and requiring her to share the cost of the GAL. She argues that the district court abused its discretion by (1) admitting into evidence and relying on the GAL\u2019s investigatory report, which included portions of the CYFD file; (2) failing to exclude hearsay and double hearsay in the testimony of CYFD worker Kurt Smith; and (3) allowing Child\u2019s therapist to testify despite her refusal to produce her treatment notes. Mother also contends that the decision terminating her parental rights is not supported by clear and convincing evidence. We agree. We also conclude that the petition was improperly filed and should have been dismissed at the inception of this case.\n{13} We note at the outset that it appears that this matter was erroneously treated as an abuse and neglect case under the Abuse and Neglect Act, NMSA 1978, \u00a7\u00a7 32A-4-1 to -34 (1993, as amended through 2016), rather than as a proceeding under the Adoption Act for adoption and concurrent termination of parental rights. We begin by discussing the requirements for proceedings under the Adoption Act, and some of the multitude of failures by Petitioners, the GAL, and the district court to follow those requirements. We then address errors and abuses of discretion in the conduct of the trial that led to the improper termination of Mother\u2019s parental rights.\nFailure to Follow the Strict Requirements for Adoption Requires Reversal\n{14} The record reveals a host of violations of the Adoption Act, any one of which would warrant reversal. Our review is de novo. Helen G. v. Mark J. H., 2008-NMSC-002, \u00b6 7, 143 N.M. 246, 175 P.3d 914; State ex rel. Children, Youth & Families Dep\u2019t v. Carl C., 2012-NMCA-065, \u00b6 8, 281 P.3d 1242. To the extent that some of these issues have been raised for the first time on appeal, we review for fundamental error. See State ex rel. Children, Youth & Families Dep\u2019t v. Paul P., Jr., 1999-NMCA-077, \u00b6 14, 127 N.M. 492, 983 P.2d 1011 (stating that \u201ctermination of parental rights cases can be candidates for fundamental error analysis\u201d).\n{15} The overarching purpose of the Adoption Act is to \u201cestablish procedures to effect a legal relationship between a parent and adopted child\u201d and to \u201censure due process protections.\u201d Section 32A-5-2(A), (C). Only an \u201cindividual who has been approved by the court as a suitable adoptive parent pursuant to the provisions of the Adoption Act\u201d may adopt. Section 32A-5-11(B)(1) (emphasis added). The record reveals consistent failures to comply with the Adoption Act\u2019s requirements. We proceed chronologically, beginning with the petition.\nRequirements for Verified Petition for Adoption\n{16} As relevant here, Section 32A-5-12 of the Adoption Act provides:\nA. No petition for adoption shall be granted by the court unless the adoptee was placed in the home of the petitioner for the purpose of adoption:\n(1) by the department;\n(2) by an appropriate public authority of another state;\n(3) by an agency; or\n(4) pursuant to a court order, as provided in Section 32A-5-13.\nC. When an adoptee is not in the custody of the department or an agency, the adoption is an independent adoption and the provisions of this section and Section 32A-5-13 . . . shall apply, except when the following circumstances exist:\n(2) a relative within the fifth degree of consanguinity to the adoptee or that relative\u2019s spouse seeks to adopt the adoptee, and, prior to the filing of the adoption petition, the adoptee has lived with the relative or the relative\u2019s spouse for at least one year[.\\\n(Emphasis added.)\n{17} The language of the Adoption Act is unambiguous. Petitioners could petition for adoption of Child only if the requirements of either Section 32A-5-12(A) or (C) were met. To the extent Petitioners imply that Child was \u201cplaced\u201d with them under Section 32A-5-12(A)(l), they are wrong. The record is clear and undisputed that CYFD never took custody of Child. Accordingly, CYFD could not \u201cplace\u201d him in the home of Petitioners for any purpose. See \u00a7 32A-5-3(K) (\u201c \u2018[Department adoption\u2019 means an adoption when the child is in the custody of [CYFD.] \u201d); see also In re Adoption of Doe, 1982-NMCA-094, \u00b6 47, 98 N.M. 340, 648 P.2d 798 (noting that the mother\u2019s act of leaving child with her ex-husband was not a \u201cplacement\u201d for purposes of adoption under the Adoption Act). And certainly nothing in the safety plan or the record as a whole shows that CYFD \u201cplaced [Child] in the home of [Petitioners] for the purpose of adoption[.]\u201d Section 32A-5-12(A) (emphasis added). Indeed, if Child had been \u201cplaced\u201d with Petitioners, then the district court should have required pre- and post-placement studies pursuant to Sections 32A-5-14 and - 31. The pre-placement study is a written evaluation, paid for by the petitioner, of the adoptive family, the adoptee\u2019s biological family, and the adoptee. See \u00a7\u00a7 32A-5-3(U), -13(B), -14(B). The post-placement report is a written evaluation of the adoptive family and the adoptee after the adoptee is placed for adoption. Section 32A-5-3(T). Here, the court never required any such study at the commencement of the proceeding and, in fact, declared in the decree that none was required, further belying Petitioners\u2019 implication that Child was \u201cplaced\u201d with them for adoption. In short, Section 32A-5-12(A) did not provide a basis for the petition.\n{18} Nor could the petition properly be filed in reliance on Section 32A-5-12(C)(2), as the record makes plain that the threshold requirements of this provision also were not met. The petition, filed on October 23, 2013, states that \u201c[C]hild has lived with . . . Petitioners since May 2013.\u201d It is evident from the face of the petition itself, then, that Child had lived with Petitioners for a mere five months, and not \u201cfor at least one year\u201d prior to the filing of the adoption petition, as the Adoption Act requires. Accordingly, Petitioners\u2019 own allegations show that Section 32A-5-12(C)\u2019s statutory prerequisite was not met and that, therefore, they were not entitled to bring an action seeking an independent adoption under the Adoption Act. See In re Adoption of Webber, 1993-NMCA-099, \u00b6 8, 116 N.M. 47, 859 P.2d 1074 (stating that the one-year residency provision is \u201ca statutory prerequisite to ... adoption and a safeguard to ensure that the best interests of the child are met by allowing the adoption\u201d).\n{19} Given that the statutory prerequisite was not met, had Petitioners wished to pursue the adoption of Child at any time prior to May 31, 2014, they would have been required to obtain a court order placing Child in their home for the purpose of adoption. See \u00a7 32A-5-12(A)(4). Such an order requires compliance, not only with Sections 32A-5-14(C) or -31(C), but also with Section 32A-5-13(A), which requires a petitioner to file a request with the court to allow the placement and directs that \u201c[a]n order permitting the placement shall be obtained prior to actual placement.\u201d (Emphasis added.) Petitioners never sought any such order prior to May 2013.\n{20} Instead, Petitioners alleged, citing Sections 32A-5-31(C) and 32A-5-14(C), that \u201c[placement is not required because this is a relative adoption within the fifth degree of consanguinity to the adoptee.\u201d Petitioners are wrong. First, neither Section 32A-5-14(C) nor -31(C) deals with \u201cplacement\u201d but rather, as discussed above, withpre- andpost-placement studies, neither of which were ordered by the district court. Moreover, both provisions state that pre- and post-placement reports are \u201cnot required in cases in which the child is being adopted by a stepparent, a relative or a person named in the child\u2019s deceased parent\u2019s will pursuant to Section 32A-5-12.\u201d Sections 32A-5-14(C) and -31(C) (emphasis added). Thus, the Adoption Act provides that \u201c[n]o petition for adoption shall be granted by the court\u201d unless the requirements of Section 32A-5-12 are met. Section 32A-5-12(A). Sections 32A-5-31(C) and 32A-5-14(C) provide no basis to circumvent those requirements.\n{21} In summary, the petition was improperly filed, and the district court should have dismissed it immediately as a matter of law for failure to meet the Adoption Act\u2019s requirements. Although reversal is mandated for this reason alone, we continue our analysis because the number, severity, and aggregate effect of errors in the conduct of the proceedings below demand our attention and censure.\nTermination Procedures\n{22} The district court failed to heed and enforce procedural safeguards applicable to proceedings to terminate parental rights under the Adoption Act. In pertinent part, Section 32A-5-16 requires:\nE. The court shall, upon request, appoint counsel for an indigent parent who is unable to obtain counsel or if, in the court\u2019s discretion, appointment of counsel for an indigent parent is required in the interest of justice. Payment for the appointed counsel shall be made by the petitioner pursuant to the rate determined by the [Sjupreme [Cjourt of New Mexico for court-appointed attorneys.\nF. The court shall appoint a guardian ad litem for the child in all contested proceedings for termination of parental rights. . . .\nG. Within thirty days after the filing of a petition to terminate parental rights, the petitioner shall request a hearing on the petition. The hearing date shall be at least thirty days after service is effected upon the parent of the child or completion of publication.\n{23} We begin with Subsection (E)\u2019s requirement that the court must appoint counsel for an indigent parent either upon request or in the interest of justice. The record shows that, although the district court was made aware that Mother was indigent, it never informed Mother that it would appoint counsel for her if she was indigent and requested counsel. Mother\u2019s indigency became clear at the very first hearing in the case in February 2014. Petitioners\u2019 counsel told the court that counsel for Mother was concerned that Mother could not pay half the cost of the GAL to be appointed for Child. Mother\u2019s counsel elaborated, stating his concern that Mother could not pay for the GAL because she was on Social Security Disability Income (SSDI) and the amount she received was \u201cbarely enough for her to live on.\u201d He explained that he was working on the case mostly pro bono. Although Mother had paid him a small amount of money, \u201cthis is ... a largely pro bono case.\u201d\n{24} We recognize that Mother was not pro se but represented by \u201clargely pro bono\u201d counsel. But we have previously held that \u201ca court must advise a parent in termination proceedings under the adoption provisions of the Children\u2019s Code that he or she is entitled to have counsel appointed if indigency can be established.\u201d Chris & Christine L. v. Vanessa O., 2013-NMCA-107, \u00b6 18, 320 P.3d 16. Given that Mother\u2019s indigency was pointed out to the court at the first hearing, it was incumbent upon the court to advise Mother of her statutory right to counsel upon a showing of indigency. As we noted in Chris & Christine L., the right to counsel \u201cis meaningless if the parent is unaware of the right.\u201d Id. \u00b6 17. Not only did the court fail to advise Mother of this statutory right, it inexplicably proceeded to order Mother to pay one-third of the GAL\u2019s fee, as discussed below.\n{25} We conclude that the court\u2019s failure to advise Mother that she would be entitled to appointed counsel \u2014 paid for by Petitioners \u2014 if she could establish indigency violated her rights under the Adoption Act, was in derogation of her due process rights, and constitutes fundamental error. See \u00a7 32A-5-2(C) (stating that one purpose of the Adoption Act is to \u201censure due process protections\u201d);Paul P., Jr., 1999-NMCA-077, \u00b6 15 (stating that \u201cthe procedures set out in the Children\u2019s Code for termination of parental rights suffice to insure a parent\u2019s due process rights\u201d). This established right is viewed by our precedent as critical to the circumstance in which a parent\u2019s constitutional right to the care and custody of his or her child is implicated. While pro bono legal representation is both commendable and important to legal proceedings of all sorts in New Mexico, Mother nonetheless was not given an opportunity for appointed counsel that was her right to accept or reject.\n{26} We next address 32A-5-16(F)\u2019s requirement that the court \u201cshall appoint a guardian ad litem for the child in all contested proceedings for termination of parental rights.\u201d As noted, the GAL was contacted and selected by Petitioners\u2019 counsel, who had discussed the case with her prior to the hearing on the motion for appointment of a GAL for Child. The record is silent as to what information, if any, the GAL received from Petitioners concerning the case. Nor is there any indication that Mother\u2019s counsel or the district court spoke with the proposed GAL before she was appointed. In fact, it is apparent from the transcript that the GAL, who was \u201cnew to the district\u201d according to Petitioners\u2019 counsel, was not present at the hearing on her appointment. Nothing in the Adoption Act prescribes a method for appointing a GAL. Nevertheless, we think that, in the circumstances presented here, the judicial duty to ensure that procedures implicating a parent\u2019s due process rights are conducted with \u201cscrupulous fairness,\u201d see Lorena R., 1999-NMCA-035, \u00b6 19, required the district court to confirm that the GAL was properly informed as to her responsibilities under New Mexico law, was not biased and was able to adequately represent Child\u2019s interest. And we conclude that the district court\u2019s apparent failure to inquire about the adequacy of the GAL\u2019s representation of Child\u2019s interest constitutes an abuse of discretion.\n{27} We also conclude that the district court abused its discretion in requiring Mother to pay one-third of the cost of the GAL that Section 32A-5-16(F) requires to be appointed \u201cin all contested proceedings for termination of parental rightsf,]\u201d despite having been informed that Mother could not afford to pay even a portion of the $150 hourly fee. Accepting Petitioners\u2019 representation that the GAL anticipated spending about ten hours on the case, Mother\u2019s one-third portion of the fee would have amounted to more than one-third of her total monthly income, which was already \u201cbarely enough for her to live on.\u201d Even Petitioners\u2019 counsel asked if there was a discretionary fund that might be used to assist Mother. But the district court asked Mother\u2019s counsel if there were \u201cany resources there to assist her in getting that payment taken care of\u2019 and then required Mother to pay one-third of the GAL fee.\n{28} The Adoption Act prescribes no requirements for payment of GAL fees in contested adoption proceedings, and district courts consequently have broad discretion in apportioning those fees among the parties. But given the representations of counsel for both sides concerning Mother\u2019s inability to pay in this case, we conclude that the court abused its discretion in requiring Mother to pay one-third of the GAL fee.\n{29} The district court, moreover, confused the role of the GAL in this adoption proceeding with that of a GAL in a domestic relations custody dispute, an error that resulted in additional erroneous rulings contributing to the district court\u2019s decision to terminate Mother\u2019s parental rights. We discuss these rulings and their impact on the court\u2019s decision more fully below, but pause here to explain.\n{30} The Adoption Act states that the court shall appoint a GAL for the child in all contested proceedings. Section 32A-5-16(F) and -33. As set forth in the Children\u2019s Code, the duties of the GAL are to \u201czealously represent the child\u2019s best interests in the proceeding for which the [GAL] has been appointed and in any subsequent appeals.\u201d NMSA 1978, \u00a7 32A-1-7(A) (2005). The Children\u2019s Code further requires that \u201c[a]fter consultation with the child, a [GAL] shall convey the child\u2019s declared position to the court at every hearing.\u201d Section 32A-1-7(D). And it lists certain mandatory duties and responsibilities, including consistent contact with the child and communications with professionals involved in the child\u2019s case. Section 32A-1-7(E).\n{31} The district court erroneously determined that the GAL\u2019s role and duties were governed by Rule 1 -053.3 (A) NMRA, which allows a court to appoint a GAL in \u201cany proceeding when custody of a minor child is contested under Chapter 40\u201d (Domestic Affairs). While the Adoption Act \u201censurefs] due process protections\u201d in proceedings to determine whether to terminate a parent\u2019s ties with her child, see \u00a7 32A-5-2(A), (C), the rule exists to assist the court in determining how both parents should best care for their children. See Rule 1-053.3(A) (stating that\u201c[t]he [GAL] serves as an arm of the court and assists the court in discharging its duty to adjudicate the child\u2019s best interests\u201d). There are marked differences between the appointment and role of the GAL in the two types of cases. For example, unlike the mandatory requirement to appoint a GAL in a contested adoption/termination of parental rights proceeding, the appointment of a GAL in a domestic relations matter is discretionary. See id. (stating that the court \u201cmay appoint\u201d a GAL); see also Rule 1-053.3(E) (listing seventeen factors to consider in determining whether an appointment will be made). And while Rule 1-053.3(B) requires that the appointment order specify the GAL\u2019s role, tasks, duties, and any limitations and allows the parties to agree to adopt the GAL\u2019s recommendations, see Rule 1-053.3(G), the Adoption Act does not. Given these differences, and for reasons discussed more fully below, we conclude that the district court erred in applying Rule 1-053.3 to the adoption and termination proceeding at issue here.\n{32} We briefly address Section 32A-5-16(G)\u2019s requirement that the petitioner shall request a hearing on the petition within thirty days after the filing of a petition to terminate parental rights. Petitioners filed the petition on October 23, 2013, and did not file a request for a hearing on the petition until April 14, 2014, well after the thirty-day deadline. And by the time final judgment was entered on November 5, 2014, over a year had elapsed since the petition was filed. The length of time it took for this case to be decided did not inure to the benefit of Child, now almost ten years old and, in fact, may well have been detrimental to him.\nOther Factors Contributing to Error in this Case\n{33} We also briefly address Petitioners\u2019 failure to meet the statutory requirements for establishing relinquishment by a parent and for providing an accounting of disbursements, and the district court\u2019s own failure to apply the correct statute. First, the sole justification asserted in the petition for seeking termination of Mother\u2019s parental rights is \u201con the basis of voluntary relinquishment.\u201d Yet nowhere do Petitioners demonstrate compliance with Sections 32A-5-21 and -22, which apply when a petitioner is seeking to adopt on the basis of a relinquishment of parental rights. Second, Section 32A-5-34(A) states that \u201c[pjrior to the final hearing on a petition, the petitioner shall file a full accounting of all disbursements of anything of value made or agreed to be made by or on behalf of the petitioner in connection with an adoption.\u201d We have searched the record and found no evidence that any such report was ever filed.\n{34} The ultimate question in considering the many aforementioned failures to comply with the Adoption Act that preceded the district court\u2019s grant of the petition is whether these failures substantially increased the risk of an erroneous decision to terminate Mother\u2019s parental rights. See State ex rel. Children, Youth & Families Dep\u2019t v. Maria C., 2004-NMCA-083, \u00b6 37, 136 N.M. 53, 94 P.3d 796. In this regard, Mother need only demonstrate that there is \u201ca reasonable likelihood that the outcome might have been different.\u201d Id. We conclude that the outcome might well have been different had the petition filed without a proper statutory basis been dismissed; had Mother been advised of her right to court-appointed counsel upon a showing of indigency; had a GAL been selected with proper court oversight; and had Mother not been required to spend a significant portion of her SSDI benefits on the GAL fee.\n{35} Although we conclude thatreversal is warranted for the reasons already stated, we address Mother\u2019s argument that the district court\u2019s decision to terminate her parental rights was not supported by substantial evidence and other issues related to the trial.\nThe Decree Is Not Supported by Clear and Convincing Evidence and Is Erroneous as a Matter of Law to the Extent It Was Based on Alleged Abuse and Neglect\n{36} The standard of proof for termination of parental rights is clear and convincing evidence. Sections 32A-5-16(H) and -36(E); State ex rel. Children, Youth & Families Dep\u2019t v. Vanessa C., 2000-NMCA-025, \u00b6 24, 128 N.M. 701, 997 P.2d 833. We will affirm the district court\u2019s decision resulting in the termination of parental rights if its findings are supported by clear and convincing evidence and if it applied the proper rule of law. State ex rel. Dep\u2019t of Human Servs. v. Minjares, 1982-NMSC-065, \u00b6 12, 98 N.M. 198, 647 P.2d 400. \u201cClear and convincing evidence\u201d is defined as evidence that \u201cinstantly tilt[s] the scales in the affirmative when weighed against the evidence in opposition and the fact finder\u2019s mind is left with an abiding conviction that the evidence is true.\u201d In re Termination of Parental Rights of Eventyr J., 1995-NMCA-087, \u00b6 2, 120 N.M. 463, 902 P.2d 1066 (internal quotation marks and citation omitted). \u201cThe function of the appellate court is to view the evidence in the light most favorable to the prevailing party, and to determine therefrom if the mind of the fact[] finder could properly have reached an abiding conviction as to the truth of the fact or facts found.\u201d State ex rel. Children, Youth & Families Dep\u2019t v. Michelle B., 2001-NMCA-071, \u00b6 12, 130 N.M. 781, 32 P.3d 790 (internal quotation marks and citation omitted). Applying this standard here requires that we evaluate whether the district court could have found by clear and convincing evidence the necessary statutory requirements for termination. Id. \u00b6 20; State ex rel. Children, Youth & Families Dep't v. Patricia N., 2000-NMCA-035, \u00b6 10, 128 N.M. 813, 999 P.2d 1045. To the extent we must interpret the Adoption Act\u2019s provisions, our review is de novo. Helen G., 2008-NMSC-002, \u00b6 7.\n{37} As we have noted, the parties did not file any proposed findings of fact and conclusions of law, and the district court did not enter any findings and conclusions supporting its decisions to terminate Mother\u2019s parental rights and grant Petitioners\u2019 request to adopt Child. The court\u2019s failure to make specific findings has greatly hampered our ability to review the issues raised on appeal. Nevertheless, we have carefully reviewed the record and now address the question whether Petitioners have \u201cpresent[ed] and provefd] each allegation set forth in the petition for adoption by clear and convincing evidence.\u201d Section 32A-5-36(E); see \u00a7 32A-5-16(H).\n{38} The Adoption Act authorizes the termination of parental rights when the child has been abandoned, neglected or abused, or placed in the care of others and certain conditions exist. Section 32A-5-15(B). Although Petitioners cite Section 32A-5-15 as the basis for terminating Mother\u2019s parental rights, the verified petition in this case alleged that Mother\u2019s parental rights were \u201cbeing sought to be terminated on the basis of voluntary relinquishment of parental rights.\u201d Indeed, Petitioners\u2019 counsel repeatedly stated that \u201cvoluntary relinquishment\u201d was the reason for seeking termination of Mother\u2019s parental rights. Yet there is not a shred of evidence in the record that Mother voluntarily relinquished her parental rights and, in any event, Petitioners wholly failed to meet Section 32A-5-21(A)\u2019s clear requirement that any such relinquishment by a p arent shall b e in writing.\n{39} We will then assume that Petitioners meant to seek termination of Mother\u2019s parental rights based on presumptive abandonment, as the petition\u2019s allegations track several of the conditions stated in Section 32A-5-15(B)(3) that, if proved, would establish a rebuttable presumption of abandonment. For example, the petition alleges the following: Child has lived with Petitioners since May 2013, when Child was placed there by CYFD pursuant to a safety plan; Child\u2019s sister was placed with her father in New Jersey for the same reasons; Petitioners financially support Child and provide his educational, medical, and emotional needs; a parent/child relationship has developed between Petitioners and Child; and Mother is not capable of caring for Child.\n{40} To be clear, Petitioners nowhere assert that Child was abandoned by Mother, as setforth in Section 32A-5-15(B)(l), or that he was neglected or abused and the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future, as set forth in Section 32A-5-15(B)(2). Nevertheless, and without notice to Mother, Petitioners proceeded to trial against Mother seeking termination of her parental rights, apparently on grounds of abandonment, presumptive abandonment, and abuse and neglect. The district court terminated Mother\u2019s parental rights to Child. Although the allegations stated in the petition implicate only presumptive abandonment, we discuss each statutory ground.\nAbandonment\n{41} We easily dispense with Petitioners\u2019 contention and the district court\u2019s ruling that Mother abandoned Child. Abandonment, in its purest form, requires a complete renunciation of responsibility. There is no evidence to support the district court\u2019s determination of abandonment, let alone clear and convincing evidence.\n{42} Mother and CYFD agreed on a safety plan for the Child\u2019s care while Mother sought intensive treatment from Life Link. The plan provided that Child, who was six-and-a-half years old at the time, would reside with Grandmother \u201cuntil further reassessment by . . . CYFD.\u201d At no time did Mother indicate that she no longer wanted Child; in fact, she was hoping to get Child back by the start of the school year. There is no evidence that Mother left Child with Petitioners without communication, either by telephone or in person. To the contrary, there is unrefuted testimony that, during the summer of 2013, Mother called Child at least once a week; saw him four times between August and September; and later called him nightly. Even after Petitioners told Mother that the nightly calls were \u201cdisruptive,\u201d Mother tried to call Child two days a week. And even the GAL concluded that Mother had not abandoned Child. The district court\u2019s ruling that Mother abandoned Child is entirely unsupported by the evidence, and we reverse that ruling. As indicated below, the evidence better supports conduct by Mother for which she is to be commended: She recognized that her emotional, financial, and living conditions did not allow for the best environment for her children. She took the opportunity to locate, while she sought help, suitable alternative homes for her children until she could properly care for them. Nothing in this record \u2014 and we mean nothing \u2014 supports relinquishment, abandonment, or anything even suggesting that Mother sought to permanently yield her liberty right to the custody and care of Child.\nPresumptive Abandonment\n{43} A rebuttable presumption of abandonment can be raised by showing that the child has been placed in the care of others, including other relatives, whether by court order or otherwise, and by establishing the following six additional criteria:\n(a) the child has lived in the home of others for an extended period of time;\n(b) the parent-child relationship has disintegrated;\n(c) a psychological parent-child relationship has developed between the substitute family and the child;\n(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;\n(e) the substitute family desires to adopt the child; and\n(f) a presumption of abandonment created by the conditions described in Subparagraphs (a) through (e) of this paragraph has not been rebutted.\nSection 32A-5-15(B)(3).\n{44} In In re Adoption of J.J.B., our Supreme Court addressed the requirements of the presumptive abandonment statute stating:\n[W]e have emphasized that two factors must both be established to prove abandonment: (1) parental conduct evidencing a conscious disregard of obligations owed to the child, and (2) this conduct must lead to the disintegration of the parent-child relationship. We emphasize that both factors must be established to prove abandonment, and that evidence of the disintegration of the parent-child relationship is of no consequence if not caused by the parent\u2019s conduct.\n1995-NMSC-026, \u00b6 44, 119 N.M. 638, 894 P.2d 994.\n{45} Thus, Petitioners had the burden of proving \u201cthat the objective parental conduct [is] the cause of the destruction of the parental-child relationship.\u201d Id. \u00b6 47. The presumption of abandonment arising from proof of the factors listed in Section 32A-5-15(B)(3) \u201cis completely rebutted by showing that a parent lacks responsibility for the destruction of the parent-child relationship.\u201d Adoption of J.J.B., 1995-NMSC-026, \u00b6 47.\n{46} Petitioners claim they proved that the statutory factors have been met by clear and convincing evidence. Specifically, they contend that Child has lived with Petitioners \u201cfor an extended period of time\u201d; the parent-child relationship has disintegrated; a psychological parent-child relationship had developed between them and Child; and Child no longer prefers to live with Mother. See \u00a7 32A-5-15(B)(3)(a)-(d). As proof, Petitioners say that Child lived with them for over a year at the time of trial and, therefore, the \u201cextended period of time\u201d requirement has been met. They also contend that they initiated and arranged all visits between Mother and Child and that Child did not want to engage with Mother during the visits. These facts, they argue, prove by clear and convincing evidence that the parent-child relationship has disintegrated. In addition, they say, Child has known Petitioners for a long time, is bonded to them and loves them, and these circumstances establish a psychological parent-child relationship. Finally, they rely on the testimony of Grandmother and Child\u2019s therapist that Child\u2019s preference was to live with Petitioners.\n{47} We disagree with Petitioners that there is clear and convincing evidence to support the decree on grounds of presumptive abandonment. As a preliminary matter, we note that the failure to prove any one of the statutory criteria by clear and convincing evidence is sufficient to preclude termination of Mother\u2019s parental rights, as the statute makes clear that all six conditions must exist. See \u00a7 32A-5-15(B)(3); \u00a7 32A-5-15(C) (stating that a rebuttable presumption of abandonment exists when the court finds that each of the six factors enumerated in Section 32A-5-15(B)(3) has been met).\n{48} We begin with the requirement that Child lived in Petitioners\u2019 home \u201cfor an extended period of time.\u201d The lengths of time and the surrounding facts vary in the case law, but what remains constant is deliberate action by the parent to leave the child behind or to refuse to assume parental responsibilities. While it is true that Child had lived with Petitioners for over a year at the time of trial, we conclude that this fact, standing alone, is insufficient to satisfy Section 32A-5-15(B)(3)(a) in the circumstances presented here. Child had lived with Petitioners only for about five months at the time the petition was filed. Had Petitioners followed the Adoption Act\u2019s requirement and requested a hearing within thirty days of filing, instead of waiting six months to do so, it is reasonably likely that Petitioners could not make this argument today. We discern no justification for the delay in requesting a hearing on the petition. Further, prior to the filing of the petition, and once Petitioners learned that Mother wanted Child back, they filed the TRO petition seeking to prevent Mother from having any contact with Child. There is little question that Petitioners have taken steps to restrict Mother\u2019s access to Child throughout these proceedings. We reject Petitioners\u2019 attempt to use their own violation of one statutory requirement (to request a hearing within thirty days of filing the petition) as evidence of compliance with another statutory requirement (that Child lived in Petitioners\u2019 home \u201cfor an extended period of time\u201d), and conclude that the \u201cextended period of time\u201d requirement was not met. See \u00a7 32A-5-15(B)(3)(a).\n{49} We need go no further in reversing the district court\u2019s determination of presumptive abandonment, but nevertheless briefly address the evidence purportedly supporting the remaining statutory requirements. With regard to the disintegration of the parent-child relationship, Petitioners pointto evidence thatthey initiated and arranged visits between Mother and Child and to Patty R.\u2019s testimony that \u201cmost of the visits I\u2019d have to say [Child] was not very engaged with her. He didn\u2019t want to be.\u201d We have difficulty concluding that this constitutes clear and convincing evidence that the parent-child relationship had disintegrated. See, e.g., Adoption of J.J.B., 1995-NMSC-026, \u00b6 49 (defining \u201cdisintegration\u201d of the parent-child relationship as the destruction of the parent\u2019s relationship with the child). Moreover, as we have discussed above, to the extent Mother\u2019s relationship with Child had disintegrated, Petitioners themselves contributed to the disintegration by thwarting Mother\u2019s efforts to have contact with Child, precluding the conclusion they seek. See id. (stating that a party seeking adoption of a child \u201cmust not by their own conduct have intentionally contributed to the factors causing the disintegration of the parent-child relationship\u201d).\n{50} In addition, although we do not doubt that Child has a bond with Petitioners, there was not sufficient evidence that \u201ca psychological parent-child relationship [had] developed.\u201d Section 32A-5-15(B)(3)(c). That Child had extended overnight visitations with Petitioners, wanted to come home from school because he missed them, and relied on them for his home environment does not demonstrate by clear and convincing evidence the existence of a parent-child relationship.\n{51} Finally, the record does not establish Child\u2019s preference by clear and convincing evidence. Petitioners\u2019 argument to the contrary relies on the following: Grandmother\u2019s testimony that Child \u201cis adamant about no longer wanting to live with [Mother]\u201d; the testimony of Child\u2019s therapist that Child wanted to tell the judge that he wants to live with Petitioners; and the GAL\u2019s report stating that she did not ask Child where he prefers to live \u201cbecause the answer was obvious.\u201d We agree with Mother that this is insufficient to support a finding that Child does not prefer to live with Mother. First, Grandmother\u2019s self-serving testimony alone cannot establish Child\u2019s preference, especially given her repeated efforts to prevent M other from having any contact with Child (i.e., by filing the TRO petition and by limiting Mother\u2019s phone calls and visits). Second, the GAL failed entirely to perform her mandatory statutory duty to meet with and interview Child prior to the hearings and to consult with Child and convey his declared position to the court at every hearing. See \u00a7 32A-1-7(D), (E). The GAL met Child twice \u2014 -once with Petitioners at a local restaurant, and once when she \u201cwas able to visit with [Child] and . . . Petitioners at their home.\u201d Her report states that Child \u201cis an incredible young person; [he] is highly intelligent and charismatic\u201d; however, this was her first encounter with Child and he \u201cdid seem somewhat guarded.\u201d At the second meeting, Child showed the GAL his bedroom and favorite things and indicated that he loves his trampoline, had planted a sunflower garden, and said that he reads every night. The GAL\u2019s report provides no other information about her interaction with Child. Yet the GAL never asked Child where he would prefer to live because, she said, \u201cthat answer was obvious.\u201d Even if Child\u2019s happiness and health at Petitioners\u2019 may be viewed as supporting this assertion, it does not establish Child\u2019s preference by clear and convincing evidence. In this regard, we note also the GAL\u2019s request for a waiver of Child\u2019s appearance at trial or for an appearance limited to the judge\u2019s chambers, based on the GAL\u2019s representation that she has \u201cspoken to [C]hild and [C]hild does not wish to attend the hearingf,]\u201d is unavailing. The GAL\u2019s request is inconsistent with the testimony of Child\u2019s therapist, upon which Petitioners also rely, who testified that Child wanted to tell the judge that he preferred to live with Petitioners. This inconsistency aside, because the district court granted the request to waive Child\u2019s appearance at the hearing and did not require Child to appear in chambers, Child never conveyed his preference to the court.\n{52} Because Petitioners failed to present sufficient evidence to support the required findings under Sections 32A-5-15(B)(3)(a)-(d), we must conclude that clear and convincing evidence does not support termination of Mother\u2019s parental rights on the basis of presumptive abandonment.\nAbuse and Neglect\n{53} This regrettable litigation has run its course as a private termination of parental rights under Section 32A-5-15 of the Adoption Act, the terms of which were construed by the district court to allow any person with a legitimate interest in the matter to petition to terminate another\u2019s parental rights by proving allegations of abuse and neglect to the district court without any involvement or oversight by CYFD. See \u00a7\u00a7 32A-5-15(B)(2), 32A-5-16(A)(3). The Adoption Act\u2019s termination of parental rights provision is basically identical to that in the Abuse and Neglect Act, except it contains no definition of an abused or neglected child, and omits the requirement that CYFD or another appropriate agency make reasonable efforts to \u201cassist the parent in adjusting the conditions that render the parent unable to properly care for the child.\u201d Compare \u00a7 32A-5-15(B)(2), with 32A-4-28(B)(2).\n{54} That \u201creasonable efforts\u201d requirement became part of New Mexico law in response to the enactment of the Adoption Assistance and Child Welfare Act, 42 U.S.C. \u00a7\u00a7 670-79 (1980, as amended through 2015), which made federal funds available to child welfare programs that make reasonable efforts to (1) prevent the removal of children from their homes, and (2) reunify families whenever possible. See generally In re Kenny F., 1990-NMCA-004, \u00b6 15, 109 N.M. 472, 786 P.2d 699 (\u201cThe reasonable-efforts requirement is a central feature of recent legislation governing the protection of children.\u201d), overruled on other grounds by In re Adoption of J.J.B., 1993-NMCA-145, \u00b6 28, 117 N.M. 31, 868 P.2d 1256, aff\u2019d in part and rev\u2019d in part by In re Adoption of J.J.B., 1995-NMSC-026. The Children\u2019s Code as a whole now echoes that policy: One of its primary purposes is to preserve the unity of the family when doing so is not in conflict with a child\u2019s health or safety. NMSA 1978, \u00a7 32A-1-3 (2009).\n{55} Thus, procedures for terminating parental rights involving a child who is allegedly abused or neglected normally incorporate strictly enforced safeguards. In order to prevent the unwarranted removal of a child from her home, CYFD is the only entity that can bring a petition for abuse and neglect, see Vescio v. Wolf, 2009-NMCA-129, \u00b6 10, 147 N.M. 374, 223 P.3d 371, and may do so only after the department has conducted an investigation,NMSA 1978, \u00a7 32A-4-4(A), (D) (2005), and the children\u2019s court attorney has determined that filing the petition is in the best interests of the child, NMSA 1978, \u00a7 32A-4-15 (1993). \u201cAn individual cannot bring [an] abuse and neglect action.\u201d Vescio, 2009-NMCA-129, \u00b6 10.\n{56} After \u201ca child is adjudged neglected [or abused] under the Children\u2019s Code, the Code requires the department to provide services and to undertake efforts to attempt in the reunification of the family and further requires periodic review of the situation.\u201d In re Guardianship of Ashleigh R., 2002-NMCA-103, \u00b6 9, 132 N.M. 772, 55 P.3d 984. After the adjudication, CYFD drafts a treatment plan that sets forth \u201cservices to be provided to the child and the child\u2019s parents to facilitate permanent placement of the child in the parent\u2019s home[.]\u201d NMSA 1978, \u00a7 32A-4-21 (B)(10) (2009). A dispositional hearing then takes place in which the court evaluates, among other things, CYFD\u2019s efforts at reunification. Section 32A-4-22(A)(8), (9). The dispositional hearing is followed by a permanency hearing, where parties may present evidence and cross-examine witnesses before a court can change the plan from reunification to placement for adoption with the corresponding termination of parental rights. See NMSA 1978, \u00a7 32A-4-25.1 (2009). In short, the path to permanency in an abuse and neglect case \u2014 whether that means reunification, or alternatively, termination of parental rights and adoption \u2014 is staked out by a statutory scheme that contemplates CYFD\u2019s involvement at every stage, overseen by the court.\n{57} Before 1993, Petitioners\u2019 abuse and neglect claim likely would have been dismissed as a matter of course because our statutes had only a single provision authorizing termination of parental rights on the basis of abuse and neglect, and it naturally required the court to find \u201cthat 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 which render the parent unable to properly care for the child[.]\u201d See NMSA 1978, \u00a7 32-1-54(B)(3) (1985), repealed by 1993 N.M. Laws, ch. 77, \u00a7 234; In re Adoption of J.J.B., 1993-NMCA-145, \u00b6 28 (concluding that termination under the abuse and neglect provision would have been improper because \u201cthere was no evidence of any efforts by the [department or other agency to assist [the father] in caring for his son\u201d). In other words, prior to 1993, CYFD (or another appropriate agency) was plainly expected to be involved in every abuse and neglect case. That is not at all surprising in light of the purposes of the Children\u2019s Code and the Department\u2019s responsibility under federal law to make reasonable efforts at reunification whenever possible.\n{58} When the Abuse and Neglect Act was enacted in 1993, the Children\u2019s Code was reorganized to include separate acts governing adoptions and abuse and neglect. See 1993 N.M. Laws ch. 77; \u00a7\u00a7 32A-4-1 to - 34; 32A-5-1 to -45. The termination of parental rights provision of Section 32-1 - 54(B)(3) was split in two. 1993 N.M. Laws, ch. 77, \u00a7 122; 1993 N.M. Laws, ch. 77, \u00a7 142. It became Section 32A-4-28(B)(2) in the Abuse and Neglect Act, with the reasonable efforts requirement intact, and Section 32A-5-15(B)(2) in the Adoption Act, but with no such reasonable efforts requirement. Id. This litigation seems to have proceeded under the assumption that the two provisions now authorize two separate methods of terminating parental rights for abuse and neglect: (1) termination of parental rights involving children in CYFD custody, governed by the Abuse and Neglect Act; and (2) proceedings where private litigants can allege and prove abuse and neglect to terminate one another\u2019s parental rights (without any department involvement or oversight) under the Adoption Act.\n{59} That is a questionable view of the Children\u2019s Code. First, if taken literally, the Adoption Act also purports to authorize CYFD itself to petition for termination of parental rights under Section 32A-5-15(B)(2), see \u00a7 32A-5-16(A)(l), which would allow CYFD to circumvent its requirement to make reasonable efforts at reunification in abuse and neglect cases, offending both the funding conditions of federal law and the stated purposes of the Children\u2019s Code. Or CYFD could be quasi-involved, as in this case, negotiating safety plans and such, without ever conducting an investigation into the best interests of the child, filing an abuse and neglect petition, or ensuring that its efforts behind-the-scenes do not ultimately result in the unwarranted breakup of a family under cover of the Adoption Act.\n{60} Second, cases where CYFD is not involved at all, and the petition for termination is brought privately under Section 32A-5-16(A)(3), would be ripe for abuse. The entire scheme of the Abuse and Neglect Act, discussed above, is designed to prevent precisely what occurred in this case. An individual\u2019s role in an abuse and neglect case is simply to report the abuse to CYFD, under criminal penalty no less, see NMSA 1978, \u00a7 32A-4-3(A) (2005), which then has a responsibility to initiate its investigation in accordance with the Abuse and Neglect Act, following all of the requirements stated therein. We think it highly unlikely that the Legislature intended to create under the Adoption Act a parallel scheme that can effectively remove CYFD from abuse and neglect cases. The Children\u2019s Code is to be read as a whole, so that the legislative intent is properly realized. State v. Adam M., 2000-NMCA-049, \u00b6 10, 129 N.M. 146, 2 P.3d 883. Moreover, the literal meaning of a statute also does not control \u201cwhen such an application would be absurd, unreasonable, or otherwise inappropriate.\u201d State v. Rivera, 2004-NMSC-001, \u00b6 13, 134 N.M. 768, 82 P.3d 939; see State v. Trujillo, 2009-NMSC-012, \u00b6 21, 146 N.M. 14, 206 P.3d 125 (stating that the court will reject the plain meaning \u201cin favor of an interpretation driven by the statute\u2019s obvious spirit or reason\u201d if adherence to the literal words would lead to \u201cinjustice, absurdity or contradiction\u201d (internal quotation marks and citations omitted)); State v. Smith, 2004-NMSC-032, \u00b6 10, 136 N.M. 372, 98 P.3d 1022 (\u201c[The appellate courts have] rejected a formalistic and mechanical statutory construction when the results would be absurd, unreasonable, or contrary to the spirit of the statute.\u201d); Atchison, T. & S. F. Ry. Co. v. Town of Silver City, 1936-NMSC-036, \u00b6 13, 40 N.M. 305, 59 P.2d 351 (\u201cCanons of construction are but aids in determining legislative intent and are not controlling if they lead to a conclusion, which by the terms or character of the legislation manifestly was not intended.\u201d (citation omitted)). In our view, the only construction of Section 32A-5-15(B)(2) consistent with the rest of the Children\u2019s Code is that the Adoption Act\u2019s abuse and neglect provision refers to abuse and neglect as defined in the Abuse and Neglect Act, and that CYFD\u2019s involvement is required by reference, which in turn requires all the safeguards set forth in the Abuse and Neglect Act, including the requirement that CYFD make reasonable efforts to reunify a child with her natural parentwheneverpossible. Such a construction is additionally consistent with the constitutional liberty interest at stake when a parent is faced with termination of her right to raise and have a relationship with her child.\n{61} The parties have not briefed the issue and, we need not and do not expand on it any further. Even assuming that private litigants can terminate another\u2019s parental rights by proving abuse and neglect in a civil case, the evidence was insufficient to do so in this case. We first discuss the evidence and testimony erroneously admitted at trial and relied upon by the district court in reaching its decision. We then examine the only competent evidence of record and conclude that it was plainly insufficient to terminate Mother\u2019s parental rights on the basis of neglect and abuse.\n{62} \u201cWe review the admission of evidence for abuse of discretion.\u201d Couch v. Astec Indus., 2002-NMCA-084, \u00b6 8, 132 N.M. 631, 53 P.3d 398. \u201cThe district court abuses its discretion when its ruling is based on a misimderstanding of the law.\u201d State v. Phillips, 2006-NMCA-001, \u00b6 10, 138 N.M. 730, 126 P.3d 546, overruled on other grounds by State v. Guthrie, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904. The erroneous admission of evidence does not constitute reversible error unless it is apparent that the court considered such evidence in deciding the case. Davis v. Davis, 1972-NMSC-045, \u00b6 9, 83 N.M. 787, 498 P.2d 674.\n{63} We begin with the GAL\u2019s amended report, which the district court admitted over Mother\u2019s objection and said it would consider in making its decision. The admission of the GAL\u2019s preliminary and amended report was problematic in three critical ways. First, the initial report was hand-delivered to Mother\u2019s counsel on July 15, 2014, the first day of trial. Mother\u2019s counsel clearly did not have an adequate \u2014 'indeed any \u2014 opportunity to adequately review the report before the commencement of the hearing that day. Next, the amended GAL report, without prior notice of the amendment, was hand-delivered to Mother\u2019s counsel at the beginning of the second day of trial on July 25,2014. Although Mother\u2019s counsel did not argue prejudice based on the late filing and delivery of these reports, we are troubled that this might well have impacted his ability to adequately prepare Mother\u2019s defense. See Lorena R., 1999-NMCA-035, \u00b6 25 (stating that parents have a due process right to participate meaningfully in termination of parental rights cases, including the right to review and challenge the evidence presented against them). Notice issues aside, the GAL\u2019s amended report was improperly admitted into evidence.\n{64} That report, while substantially similar in substance to the original report filed July 15, 2014, was amended by attaching eighteen pages of allegations against Mother from CYFD\u2019s files. Our close review of these attachments reveal that many of the allegations were anonymous, most were found by CYFD to be unsubstantiated, and all were hearsay statements. The district court overruled Mother\u2019s objections that the report and attachments contained hearsay and that the GAL was required to offer witnesses to testify about the contents of the documents. The court ruled that the report and file excerpts were admissible under Rule 1-053.3(F). As discussed above, the court erred as a matter of law in relying on Rule 1-053.3. Moreover, Petitioners cite no case holding that inadmissible hearsay testimony is admissible simply because it is proffered by a GAL, let alone in a proceeding implicating a parent\u2019s fundamental due process rights. A GAL is not legally authorized to circumvent applicable rules of evidence by attaching inadmissible hearsay documents to a report. The district court should not have admitted the GAL\u2019s amended report or relied upon it in determining whether to grant the petition.\n{65} The failure of witnesses to timely provide documents was not limited to the GAL. CYFD worker Kurt Smith, who had no personal knowledge of the case, had never even seen the safety plan prior to the trial and was only \u201cvaguely familiar\u201d with Mother, was allowed to testify about CYFD records pertaining to Mother. Mother\u2019s counsel had served subpoenas for the records prior to trial, but they were not produced. Yet the district court overruled Mother\u2019s counsel\u2019s objection and allowed Smith to testify about notes and other written records containing numerous inadmissible hearsay statements. Similarly, Mother\u2019s attorney subpoenaed and did not receive the treatment notes of Child\u2019s counselor, Mary Carafelli. In fact, Carafelli did not bring those notes to court but produced only a file containing a handful of forms. The district court overruled counsel\u2019s objection that Carafelli\u2019s refusal to produce her file should bar her testimony and ordered Carafelli to produce her file within a week. It is unclear whether she ever complied with that order, but no such documents appear in the record. In our view, with nothing in the record to show otherwise, the district court\u2019s rulings denied Mother her rights to confront and cross-examine the witnesses against her. See Maria C., 2004-NMCA-083, \u00b6 34 (holding that \u201cparents have a due process right to fair notice and an opportunity for meaningful participation . . . , including the right to present evidence and cross[-]examine witnesses\u201d). Under the circumstances presented here, the district court should not have allowed or relied on the testimony of Kurt Smith and Mary Carafelli.\n{66} Excluding consideration of the foregoing inadmissible evidence, Petitioners\u2019 evidence in support of allegations of abuse and neglect and that this alleged circumstance was unlikely to change in the foreseeable future can be summarized as follows: Mother\u2019s living environment was dirty, in disarray, and with bed bugs \u201call over,\u201d Child was dirty, hungry, withdrawn and scared, behind in school, exposed to domestic violence, and traumatized; Mother was also dirty, her hair was greasy, and she smelled of alcohol and body odor; Mother\u2019s apartment was near an empty lot that was full of needles, glass, liquor bottles, debris, sleeping bags, and mattresses; Mother was destructive and violent; and Mother drank almost every day and sometimes used drugs.\n{67} We accept for the purposes of our discussion that this evidence, if established, might provide a basis for finding abuse and neglect. The question becomes whether, to the extent that the alleged circumstances truly exist, they demonstrate clearly and convincingly that Mother\u2019s condition warranted a termination of her parental rights.\n{68} We first turn to Mother\u2019s housing. The chief complaints from Petitioners were that Mother\u2019s homes were filthy and infested with bed bugs, and that she lived near an empty lot filled with trash and drug paraphernalia. Although one\u2019s housekeeping habits could form the basis of a legitimate petition for neglect, there is no evidence in the record that Mother\u2019s situation was seriously detrimental to Child, and no evidence that Child had ever been harmed in Mother\u2019s household. That Mother\u2019s cleanliness did not meet Petitioners\u2019 approval cannot be the basis for terminating Mother\u2019s parental rights. See State ex rel. Children, Youth & Families Dep\u2019t v. Patricia H., 2002-NMCA-061, \u00b6 21, 132 N.M. 299, 47 P.3d 859 (stating that\u201c[t]he fact that a child might be better off in a different environment is not a basis for termination of parental rights in this state\u201d (internal quotation marks and citation omitted)). Nor are we prepared to say that the fact that Mother\u2019s previous apartment was near an empty lot with trash and possible drug paraphernalia constituted neglect or abuse. After all, Mother could hardly be expected to obtain an apartment that was not \u201clow income\u201d given the amount of her monthly SSDI. Finally, we note that Petitioners provided no evidence at the time of trial that Child would not be safe in Mother\u2019s home.\n{69} To the extent that Petitioners contend that Mother was unfit because Child was withdrawn, scared, and traumatized, there was no competent evidence to support these assertions. There was no evaluation or diagnosis of Child (or of Mother), and scant testimony concerning Mother\u2019s interaction with Child. Patty R. testified that Mother was \u201ca little bit more talkative\u201d with Child than she was with her daughter. Lee Carrizales, a friend of Mother\u2019s, testified that Mother loves Child \u201cin her own way,\u201d but she did not act lovingly or patiently with her children. Even if we agree that Mother did not interact with Child at a level that would ensure that Child necessarily will experience maximum emotional development, there was insufficient evidence to satisfy the strict requirements for termination of parental rights.\n{70} We briefly address the allegations of drug and alcohol use and Mother\u2019s alleged violent tendencies. Lee Carrizales testified that Mother drank alcohol \u201cpretty much every day\u201d and that she used drags. Carrizales\u2019 testimony regarding Mother\u2019s alcohol use was based on her observations in the summer of 2009 when Mother, her boyfriend and the children lived with Carrizales. She said that she knew Mother used street drugs \u201cbecause they would discuss it\u201d and because she found a pipe in her shed. Although Mother testified that she used to drink, she said that she was sober and no longer drank alcohol. Doug Simon, who had been in a relationship with Mother more than thirteen years earlier, testified that their relationship was \u201c[a]t some points . . . loving and at others, highly toxic, volatile, destructive.\u201d Yet, Simon allowed Mother to raise their daughter until Mother sent their daughter to live with Simon pursuant to the safety plan. In any event, the record does not provide evidence that supports \u201can abiding conviction\u201d in our mind, see In re Termination of Parental Rights of Eventyr J., 1995-NMCA-087, \u00b6 2, that Mother was drinking or using drugs at the time of trial, or that she was emotionally unstable at the time of trial, let alone that these conditions would continue into the foreseeable future.\n{71} Perfection in parenting is not attainable, but neither is it required by law. Under the circumstances, Mother\u2019s decision to have Child reside in a relative\u2019s home where he would receive adequate care does not evidence a failure to provide proper and necessary support for Child constituting abuse and neglect but rather concern for Child. Petitioners have failed to meet their burden to demonstrate by clear and convincing evidence that termination of Mother\u2019s parental rights was warranted.\n{72} We recognize that our decision may have significant emotional consequences for Child who, by now, has lived with Petitioners for over three years. But applicable law does not permit the termination of parental rights where, as here, the district court applied the law incorrectly and failed in its duty to ensure that the proceedings were conducted with scrupulous fairness. Consequently, we reverse.\nCONCLUSION\n{73} For the foregoing reasons, we reverse the judgment terminating Mother\u2019s parental rights to Child, and void the proposed adoption.\n{74} IT IS SO ORDERED.\nLINDA M. VANZI, Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nJ. MILES HANISEE, Judge\nWe note that the GAL has not participated in any way in this appeal.\nis unclear from the record whether the district court terminated Mother\u2019s rights on all three statutory grounds. Both the court\u2019s letter decision and the decree conclude that Child has been abused and neglected and that the causes and conditions are unlikely to change. Both also state that Child has been abandoned, citing only the presumptive abandonment statute. Because of the lack of findings from the district court, we cannot discern the legal basis for the court\u2019s decision.\nFurther complicating matters, Mother\u2019s counsel objected to the admission of the GAL\u2019s amended report at the conclusion of the July 25, 2014 hearing. The district court accepted the report into evidence but then set a hearing ten days later for Mother to respond to the GAL\u2019s allegations and hearsay reports. The court made no determination of admissibility prior to accepting the report and then shifted the burden to Mother to rebut the allegations in the report and CYFD notes. There is no legal justification for the court\u2019s actions in this regard.", "type": "majority", "author": "VANZI, Judge." } ], "attorneys": [ "Caren I. Friedman Santa Fe, NM Brown & Gallegos Flora Gallegos Las Vegas, NM for Appellees", "Jane B. Yohalem Santa Fe, NM for Appellant", "Law Office of Aida Medina Adams Aida Medina Adams Santa Rosa, NM Guardian Ad Litem" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-093\nFiling Date: August 31, 2016\nDocket No. 34,327\nIN THE MATTER OF THE ADOPTION PETITION OF DARLA D. and PATTY R., Petitioners-Appellees, v. GRACE R., Respondent-Appellant, and IN THE MATTER OF TRISTAN R., Child.\nGerald E. Baca, District Judge\nCaren I. Friedman Santa Fe, NM Brown & Gallegos Flora Gallegos Las Vegas, NM for Appellees\nJane B. Yohalem Santa Fe, NM for Appellant\nLaw Office of Aida Medina Adams Aida Medina Adams Santa Rosa, NM Guardian Ad Litem" }, "file_name": "0568-01", "first_page_order": 584, "last_page_order": 604 }