{ "id": 4362990, "name": "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", "name_abbreviation": "State ex rel. Children, Youth & Families Department v. Melvin C.", "decision_date": "2015-04-27", "docket_number": "Docket No. 33,605", "first_page": "120", "last_page": "129", "citations": [ { "type": "official", "cite": "2015-NMCA-067" } ], "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": "2007-NMCA-070", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3669122 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 30" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0692-01" ] }, { "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": "2007-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3668635 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0535-01" ] }, { "cite": "2011-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249871 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 25" }, { "page": "\u00b627" }, { "page": "\u00b628" }, { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0315-01" ] }, { "cite": "335 P.3d 746", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMSC-034", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4240158 ], "weight": 11, "pin_cites": [ { "page": "\u00b6 34" }, { "page": "\u00b6\u00b6 35, 39" }, { "page": "\u00b6 21" }, { "page": "\u00b6 40" }, { "page": "\u00b6 66" }, { "page": "\u00b6\u00b6 43, 49" }, { "page": "\u00b6 41" }, { "page": "\u00b6 21" }, { "page": "\u00b6 43" }, { "page": "\u00b6 41" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0608-01" ] }, { "cite": "316 P.3d 918", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-016", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4077014 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 12" }, { "page": "\u00b6 12" }, { "page": "\u00b6\u00b6 9, 12" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm-app/5/0378-01" ] } ], "analysis": { "cardinality": 946, "char_count": 28912, "ocr_confidence": 0.755, "pagerank": { "raw": 4.5828155114230504e-08, "percentile": 0.2873837432220952 }, "sha256": "ffc2bfa908d4421d16baf9b8691ec141bdc2dfe2ac2003b0794ef4a50295d8f1", "simhash": "1:72b2720a99d63187", "word_count": 4670 }, "last_updated": "2023-07-14T20:13:54.428467+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RODERICK T. KENNEDY, Judge", "WE CONCUR:", "JONATHAN B. SUTIN, Judge", "TIMOTHY L. GARCIA, Judge" ], "parties": [ "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." ], "opinions": [ { "text": "OPINION\nKENNEDY, Judge.\n{1} This case resides between our Opinion in State ex rel. Children, Youth & Families Dep\u2019t v. Christopher B., 2014-NMCA-016, 316 P.3d 918, and the Supreme Court\u2019s 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\u2019s 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)(l) 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\u2019s case. We therefore reverse the court\u2019s termination of Father\u2019s parental rights.\nI. BACKGROUND\n{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 \u201cthe inability to provide safe housing.\u201d 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\u2019s abuse/neglectpetition 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 \u201cwant[ed] to participate and work a treatment plan in an attempt to reunify with [Child].\u201d The motion requested that the court vacate the portion of the upcoming November 4,2013, hearing \u201cpertain[ing] to the termination of [his] parental rights\u201d so that Father has the \u201copportunity to work a treatment plan\u201d and can \u201cmove towardf] reunification with . . . [C]hild.\u201d 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\u2019s parental rights.\n{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 \u201cthe possible dispositions for a finding of neglect.\u201d In doing so, the court explained what would happen if there was a stipulation to neglect in the form of a plea: \u201cThe court will hear from [CYFD] and the court will enter a finding, pursuant to your agreement, to a finding of neglect.\u201d Father pleaded no contest to neglect and abuse, and Child was so adjudicated as to F ather.\n{4} While CYFD pursued termination of Mother\u2019s parental rights based on abandonment during the November 4 hearing, Father\u2019s 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\u2019s 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 \u201cunable to provide the needs of . . . Child.\u201d CYFD\u2019s only reference to abandonment by Father came in the context of the TPR hearing against Mother at that time. Despite CYFD\u2019s failure to mention abandonment as grounds for an adjudication of neglect as to Father, the court added: \u201cI\u2019m assuming also part of this is, you mentioned it, but also based on a failure to provide because he abandoned . . . [C]hild,\u201d to which CYFD answered simply, \u201cyes.\u201d\n{5} Following CYFD\u2019s foundational statements, the court accepted Father\u2019s stipulation to neglect and made \u201ca finding of neglect, pursuant to [Section 32A-4-2](E)(2).\u201d Based on Father\u2019s stipulation and CYFD\u2019s statement, the court postponed the dispositional hearing, stating: \u201cLet\u2019s try to set it out thirty days and, hopefully, we will have a better idea as to [Father\u2019s] position and what can be offered or what can be done.\u201d\n{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 \u201c[d]ispositional [and] TPR.\u201d Thirty-five days after the adjudicatory hearing, the court held a hearing, during which it characterized the previous adjudicatory hearing as a \u201clittle meeting.\u201d\n{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\u2019s counsel made the argument that, under the statutory scheme, Father possessed the \u201copportunity to have a dispositional order entered and be permitted to work a treatment plan\u201d and that the TPR hearing therefore should have been vacated. Counsel also pointed out that Father\u2019s November 4 stipulation to neglect was made \u201cin part because he believed he would be able to work a disposition plan\u201d and that the statutory scheme of Section 32A-4-22(C) \u201cprovides the court shall order [CYFD] to implement a treatment plan whenever there has been a finding of neglect or abuse.\u201d In response to CYFD\u2019s 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 \u201cbased only on abandonment.\u201d The court acknowledged the previous finding and adjudication of neglect.\nThe 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.\n{8} CYFD then proceeded to establish the basis for termination of Father\u2019s 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, \u00b6 12, the court believed it was appropriate to allow CYFD to \u201cmove forward without even a finding of neglect or abuse prior to proceeding on the theory of terminating someone\u2019s parental rights based on a theory of abandonment.\u201d 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.\n{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 \u201cabandonment is a separate analysis in this case,\u201d and \u201cit is not necessary that [CYFD] develop a treatment plan when the allegation of abandonment is being made and pursued and proven.\u201d In its findings of fact and conclusions of law, the court acknowledged that \u201c[a d]ispositional [h]earing was not held\u201d in the case, and it had allowed CYFD \u201cto proceed only on the allegations of [abandonment.\u201d The court concluded that \u201c[c]lear and convincing evidence exists that Father abandoned Child pursuant to Section 32A-4-28(B)(l) of the Children\u2019s Code.\u201d 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\u2019s parental rights onFebruary 10, 2014. Father filed a timely appeal.\nII. DISCUSSION\n{10} \u201cThis Court reviews issues of statutory interpretation de novo.\u201d In re Grace H., 2014-NMSC-034, \u00b6 34. The parties dispute whether the court properly complied with the Abuse and Neglect Act, NMSA 1978, \u00a7\u00a7 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\u2019s due process rights.\nA. Overview of New Mexico Abuse and Neglect Proceedings\n{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\u2019s Code sets out in an abuse and neglect proceeding. See In re Esther V., 2011-NMSC-005, \u00b6 25, 149 N.M. 315, 248 P.3d 863 (providing an \u201c[o]verview of New Mexico [a]buse and [n]eglect [proceedings\u201d (emphasis omitted)). An abuse and neglect proceeding begins when CYFD files a petition with the court alleging abuse or neglect. \u00a7 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. \u00a7 32A-4-16(A); \u00a7 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, \u00b627; \u00a7 32A-4-18(A), (D). These steps were met in this case.\n{12} An adjudicatory hearing must commence within sixty days of \u201cservice on the respondent.\u201d \u00a7 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, \u00b628. Parents are entitled to due process protections during the adjudicatory hearing in an abuse or neglect case. State ex rel. Children, Youth & Families Dep\u2019t v. Kathleen D.C., 2007-NMSC-018, \u00b6 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.\n{13} During the adjudicatory hearing, the court may make a determination of abuse or neglect on the basis of a valid admission. \u00a7 32A-4-20(H). When it does so, the court \u201cshall enter an order finding that the child is neglected or abused.\u201d 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) (\u201cThe 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.\u201d). 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 \u201ccommence within thirty . . . days after conclusion of the adjudicatory hearing.\u201d Id. During the dispositional stage, the court issues \u201cfactual findings relevant to a custody determination, determines custody of the child, and establishes a treatment plan.\u201d In re Esther V., 2011-NMSC-005, \u00b6 29; see \u00a7 32A-4-22. Judicial review hearings are held later to monitor parents\u2019 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.\n{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). T ermination 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 \u201cthere has been an abandonment of the child by his parents}.]\u201d Similarly, Subsection (B)(3) provides for presumptive abandonment where certain criteria are met.\n(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:\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-4-28(B)(3). Abandonment cannot be supported \u201cby simply a finding that a parent was incarcerated during the period of alleged abandonment}.]\u201d Christopher B., 2014-NMCA-016, \u00b6 12.\n{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, \u00b6 21, 132 N.M. 299, 47 P.3d 859. Subsection (B)(2) requires termination where\nthe 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.\nSection 32A-4-2(E)(2) defines \u201cneglected child\u201d as a child \u201cwho is without proper parental care and control or subsistence, education, medical or other care or control necessary for the child\u2019s well-being because of the faults or habits of the child\u2019s parent,... or refusal of the parent, . . . when able to do so, to provide them).]\u201d A court seeking to terminate parental rights based on abuse or neglect must find that (1) \u201cthe child was abused or neglected,\u201d (2) \u201ccauses of the abuse or neglect were unlikely to change in the foreseeable future,\u201d and (3) \u201cCYFD made reasonable efforts to assist the parent in adjusting the conditions.\u201d State ex rel. Children, Youth & Families Dep\u2019t v. Benjamin O., 2007-NMCA-070, \u00b6 30, 141 N.M. 692, 160 P.3d 601 (alterations, internal quotation marks, and citation omitted).\nB. The Court Was Required to Hold a Dispositional Hearing After Entering a Finding That Father Neglected Child\n1. The Court Did Not Comply With the Abuse and Neglect Act\u2019s Procedures\n{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.\n{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\u2019s 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.\n{18} In Christopher B., this Court affirmed a court\u2019s decision allowing CYFD to proceed with a TPR solely on an abandonment theory. 2014-NMCA-016, \u00b6 12. There, the allegations of abuse or neglect in the case had already been dismissed for insufficient pleading. Id. \u00b6 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 neglectunder Subsection (B)(2). For example, we recognized that abuse or neglect and abandonment are \u201cseparate and independent grounds for the termination of parental rights\u201d and that \u201c[a]bandonment is a stand-alone basis for termination of parental rights.\u201d Christopher B., 2014-NMCA-016, \u00b6\u00b6 9, 12. We concluded that, because abuse or neglect was a non-issue in that case by virtue of the dismissal, the father\u2019s due process rights had not been violated when CYFD proceeded on an abandonment theory. Id. \u00b6\u00b6 11-12. We nevertheless reiterated the holding made in Benjamin O. that \u201cwhere the . . . court adjudicates a child as having been abused or neglected by a parent, CYFD is statutorily required to create a treatment plan.\u201d Christopher B., 2014-NMCA-016, \u00b6 9.\n{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\u2019s 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\u2019s obligation to create a treatment plan and the court\u2019s 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: \u201cI 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.\u201d 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.\n2. The Court Did Not Use the Appropriate Subsection of 32A-4-28 When It Terminated Father\u2019s Parental Rights\n{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\u2019s rights pursuant to Subsection (B)(1). The argument misstates the statutory interpretation of Section 32A-4-28 made in In re Grace H.\n{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, \u00b6\u00b6 35, 39. During its attempts to terminate parental rights in that case, CYFD failed to identify whether it sought termination for abandonment irnder Subsection (B)(1) or neglect by abandonment under Subsection (B)(2). In re Grace H., 2014-NMSC-034, \u00b6 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\u2019s parental rights based on Subsection (B)(1) abandonment. In re Grace H., 2014-NMSC-034, \u00b6 40. Because CYFD had treated the matter \u201cthroughout the life of the case,\u201d 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, \u00b6 66 (internal quotation marks omitted). The Supreme Court held that Subsection (B)(1) should be used to terminate parental rights \u201cwhere a parent is completely absent prior to termination,\u201d while Subsection (B)(2) should be used \u201cwhere a parent is present and expresses a legitimate desire to take responsibility for a child prior to termination.\u201d In re Grace H., 2014-NMSC-034, \u00b6\u00b6 43, 49. This holding stemmed from the Supreme Court\u2019s interpretation of legislative intent in which it concluded that \u201cthe Legislature intended Subsection (B)(1) to be used when there is no parent present with whom [CYFD] could work toward[] reunification prior to termination.\u201d In re Grace H., 2014-NMSC-034, \u00b6 41.\n{22} The present case lends more support to Father\u2019s position than CYFD\u2019s 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, \u00b6 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\u2019s TPR. Thus, CYFD demonstrated, during the November hearing, a clear intent to pursue Father\u2019s 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.\n{23} CYFD argues that, because Father had no contact with Child and made little effort to get in contact with Child, Father had no \u201clegitimate desire\u201d to take responsibility for Child. We disagree. CYFD interprets the phrase \u201clegitimate desire\u201d used in In re Grace H. too literally. 2014-NMSC-034, \u00b6 43 (\u201cSubsection (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.\u201d). When read together with the case\u2019s legislative interpretation of Subsections (B)(1) and (B)(2), In re Grace H.\u2019s \u201clegitimate desire\u201d language references a parent who \u201cis present and willing to participate,\u201d even if they do so late in the game, so long as they do so prior to termination. 2014-NMSC-034, \u00b6 41. Despite the approximate seven-month delay between CYFD having taken custody of Child and Father\u2019s 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\u2019s 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 \u201clegitimacy\u201d of Father\u2019s case. Rather than support CYFD\u2019s argument that termination under Subsection (B)(1) was appropriate in this case, In re Grace H. \u2014 the Supreme Court\u2019s statutory interpretation in particular \u2014 precludes Subsection (B)(l)\u2019s applicability to this case. As discussed earlier in this Opinion, the record reflects the parties\u2019 and the court\u2019s 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.\n{24} CYFD argues further that Father\u2019s rights were properly terminated pursuant to a theory of \u201cpresumptive abandonment.\u201d See \u00a7 32A-4-28(B)(3); \u00a7 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\u2019s court may terminate parental rights without the prerequisite opportunity for the parent to comply with a court-ordered treatment plan.\n{25} Although the court cited Section 32A-4-28(B)(3) in its final judgment as one ground for its decision to terminate Father\u2019s parental rights, the court\u2019s findings of fact did not address the requisite elements of presumptive abandonment. See \u00a7 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\u2019s parental rights, it presented any evidence pertaining to the elements of presumptive abandonment that might support the court\u2019s conclusion in that regard. Under these circumstances, we reject the court\u2019s factually unsupported conclusion and CYFD\u2019s unsupported assertion that presumptive abandonment was an appropriate basis upon which to terminate Father\u2019s parental rights.\nIII. CONCLUSION\n{26} The court terminated Father\u2019s 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\u2019s parental rights solely on an abandonment theory, ignoring its previous finding, which remained unaltered for subsequent proceeding. The court erred in terminating Father\u2019s rights without having fulfilled its statutorily required duties following an adjudication of neglect. We therefore reverse the court\u2019s order terminating Father\u2019s parental rights and remand the case to the court for a dispositional hearing in accordance with the Abuse and Neglect Act.\n{27} IT IS SO ORDERED.\nRODERICK T. KENNEDY, Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nTIMOTHY L. GARCIA, Judge", "type": "majority", "author": "KENNEDY, Judge." } ], "attorneys": [ "Children, Youth and Families Department", "Charles E. Neelley, Chief Children\u2019s Court Attorney", "Kelly P. O\u2019Neill, Children\u2019s Court Attorney", "Albuquerque, NM", "for Appellee", "Alex Chisholm", "Albuquerque, NM", "for Appellant", "Richard J. Austin, PC", "Richard J. Austin", "Farmington, NM", "Guardian Ad Litem" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-067\nFiling Date: April 27, 2015\nDocket No. 33,605\nSTATE 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.\nChildren, Youth and Families Department\nCharles E. Neelley, Chief Children\u2019s Court Attorney\nKelly P. O\u2019Neill, Children\u2019s Court Attorney\nAlbuquerque, NM\nfor Appellee\nAlex Chisholm\nAlbuquerque, NM\nfor Appellant\nRichard J. Austin, PC\nRichard J. Austin\nFarmington, NM\nGuardian Ad Litem" }, "file_name": "0120-01", "first_page_order": 136, "last_page_order": 145 }