{ "id": 12166976, "name": "STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. ALFONSO M.-E., Respondent-Appellant, and IN THE MATTER OF URIAH F.-M., Child", "name_abbreviation": "State ex rel. Children, Youth & Families Department v. Alfonso M.-E.", "decision_date": "2015-12-14", "docket_number": "Docket No. 33,896", "first_page": "330", "last_page": "353", "citations": [ { "type": "official", "cite": "2016-NMCA-021" } ], "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": "2005-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2548505 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0264-01" ] }, { "cite": "2001-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183125 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0047-01" ] }, { "cite": "548 U.S. 331", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3500432 ], "year": 2006, "pin_cites": [ { "page": "337-38" } ], "opinion_index": 0, "case_paths": [ "/us/548/0331-01" ] }, { "cite": "104 N.M. 644", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594890 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/104/0644-01" ] }, 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"2023-07-14T22:30:56.942854+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JAMES J. WECHSLER, Judge", "MICHAEL D. BUSTAMANTE, Judge", "LINDA M. VANZI, Judge" ], "parties": [ "STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. ALFONSO M.-E., Respondent-Appellant, and IN THE MATTER OF URIAH F.-M., Child." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} Father, Alfonso M.-E., appeals from the district court\u2019s judgment terminating his parental rights to Child, Uriah F.-M., under two statutory provisions of the Abuse and Neglect Act (ANA), NMSA 1978, \u00a7\u00a7 32A-4-1 to -34 (1993, as amended through 2015). The court also terminated the rights of Child\u2019s mother, Brandi S. (Mother), but she has not appealed. Father challenges the district court\u2019s termination pursuant to Section 32A-4-28(B)(1) and argues that clear and convincing evidence did not support the district court\u2019s finding that he abandoned Child. Father also raises sufficiency of evidence claims in appealing the district court\u2019s termination on the basis of Section 32A-4-28(B)(2). In this regard, Father contends that the district court erred in finding that (1) he neglected Child; (2) the causes and conditions of neglect were unlikely to change in the foreseeable future; and (3) the Children, Youth and Families Department (CYFD) made reasonable efforts to assist Father in adjusting the conditions that rendered him unable to properly care for Child. Father also contends that CYFD violated his due process rights by failing to provide him adequate translation services and, finally, argues that he was denied effective assistance of counsel.\n{2} We hold that our Supreme Court\u2019s opinion in In re Grace H., 2014-NMSC-034, 335 P.3d 746 renders the district court\u2019s termination of Father\u2019s parental rights for abandonment under Section 32A-4-28(B)(l) improper. We also hold that the record is not sufficient to support, by clear and convincing evidence, that the causes and conditions of neglect were unlikely to change in the foreseeable future or that CYFD made reasonable efforts to assist Father in adjusting the conditions that rendered him unable to properly care for Child under Section 32A-4-28(B)(2). Because we reverse the district court\u2019s termination of Father\u2019s parental rights on these grounds, we do not reach Father\u2019s due process and ineffective assistance of counsel arguments.\nBACKGROUND\n{3} Child was born on August 20, 2012 to Father and Mother. On January 24, 2013, CYFD took Child into custody after receiving an emergency referral alleging physical neglect and a lack of adequate supervision of Child by Mother, who reportedly had been arrested on outstanding warrants. CYFD also took Child\u2019s half-brother, Isaac K., born April 11,2005, into custody and placed the two with the same foster family. Father is not the biological father of Child\u2019s half-brother.\n{4} On January 28, 2013, CYFD filed a neglect and abuse petition against Father and Mother, alleging that Child was without proper parenting or parental supervision due to Mother\u2019s substance abuse issues, her inability to provide safe and stable housing, and her criminal lifestyle. As to Father, the petition alleged that he abandoned Child and had \u201cfailed to protect [Child] from [MJother\u2019s drug abuse, homelessness, criminal conduct and neglect.\u201d The petition further alleged that Father\u2019s location was unknown. It was determined at the initial custody hearing on February 6,2013 thatFather was incarcerated and was subject to an immigration hold. Father had been incarcerated since December 2012 due to his arrest for driving while under the influence of intoxicating liquor or drugs.\n{5} At the adjudicatory and dispositional hearing held on March 8, 2013, Father appeared with the aid of an interpreter and entered a plea of no contest to the allegations in CYFD \u2019 s petition, acknowledging that Child was a \u201cneglected\u201d child pursuant to Section 32A-4-2(E)(2), and that Father had \u201cfailed to provide for [Child\u2019s] basic necessities.\u201d The district court entered a stipulated judgment and disposition against Father on March 28, 2013. The treatment plan developed by CYFD for Father and adopted by the court indicated that Father had \u201cexpressed a strong desire to maintain his bond with [Child].\u201d The plan specified that Father was required to complete substance abuse, mental health, psychosocial, and domestic violence assessments and follow all recommendations made by those assessments. The plan also mandated that Father \u201cwill provide random [urinalyses] as determined by [CYFD].\u201d Further, the treatment plan included the requirements that Father maintain weekly contact with CYFD, obtain safe and stable housing, create a financial plan to ensure Child\u2019s basic needs are met, engage in parenting education, participate in family time at CYFD\u2019s discretion, and provide letters, photos, and other memorabilia for Child\u2019s life book. For CYFD\u2019s part, the treatment plan required CYFD to \u201cmake appropriate recommendations[,] . . . make referrals[,] and monitor [Father\u2019s] progress.\u201d\n{6} Father spoke through an interpreter at the initial judicial review hearing on May 17, 2013 to inform the court that he was currently incarcerated and serving his sentence for his DWI conviction and that he might face immigration detention and deportation to Mexico following completion of his sentence. CYFD\u2019s judicial review report, which the court adopted by reference, indicated that Father had \u201cdone as much as possible considering his current incarceration and [immigration] hold\u201d but that Father was \u201calso waiting to be deported, and may not be able to be a consistent caretaker for [Child].\u201d The report also noted that Father had \u201cengaged in [an addiction treatment program], but hasn\u2019t been able to do any further substance abuse programs due to his current incarceration and [immigration] hold.\u201d The report additionally stated that Father \u201chas written letters to [his permanency planning worker (PPW)] regarding [Child] and his [incarceration] status\u201d and provided CYFD the names of Father\u2019s relatives for Child\u2019s possible placement. The court ordered CYFD to implement its permanency plan of reunification.\n{7} In August 2013, Father was transferred from New Mexico to a federal holding facility in El Paso, Texas for immigration processing. He was subsequently deported to Mexico in September 2013. Father called his PPW, Frances Steckbauer, and left her a voicemail after he arrived in Mexico. During this time, CYFD requested the Mexican Consulate\u2019s assistance in conducting a psychological evaluation of Father and a study of Father\u2019s sister\u2019s home in Mexico where Father was living. Additionally, with the help of the Consulate, Steckbauer coordinated a telephone call with Father in October 2013 and told Father to maintain monthly communication with CYFD.\n{8} Shortly thereafter, on October 28, 2013, CYFD moved to terminate Father\u2019s parental rights to Child. CYFD asserted that Father, \u201c[w]ithout justifiable cause, . . . ha[d] not communicated with or provided support for [Child] in over 3 months\u201d and \u201cha[d] abandoned [Child].\u201d Moreover, CYFD argued, Father was \u201cin substantial noncompliance with his treatment plan[.]\u201d Among Father\u2019s failures, CYFD stated that Father had not completed the required assessments, provided proof to CYFD that he had obtained safe and stable housing, provided random urinalyses, maintained weekly contact with CYFD, or discussed his history with CYFD. CYFD also asserted that Father had not provided it with names of relatives for possible placement with Child, participated in family time with Child, provided Child with memorabilia for his life book, or created a financial plan to ensure Child\u2019s needs would be met.\n{9} The following week, on November 4, 2013, the court held the initial permanency planning hearing. Father was not present at the hearing but was represented by his attorney who notified the court that Father had been deported. CYFD informed the court that CYFD had stayed in contact with the Consulate, which provided CYFD an address and the phone number for Father in Mexico as well as the names of some of Father\u2019s relatives living in Mexico. However, CYFD further represented that Father had made no attempts \u201cto contact [CYFD] at all [after his deportation], even though Ms. Steckbauer made sure [Father] had all of [CYFD\u2019s] contact information.\u201d Although the court approved changing CYFD\u2019s plan from reunification to adoption, the court explicitly asked CYFD to \u201ccontinue trying to open a line of communication with [Father] to determine what, if anything, he wants to do to work his plan.\u201d\n{10} In accordance with CYFD\u2019s request through the Consulate, Mexican officials conducted a study of Father\u2019s sister\u2019s home on November 5,2013. Father, who was employed as a day laborer, provided his financial information as part of the study. A November 6, 2013 urinalysis administered in Mexico indicated that Father tested negative for amphetamines, cocaine, and marijuana. By December 2013, Father had also completed a psychological evaluation that recommended he engage in therapy sessions. In a letter to the Mexican Consulate dated December 16,2013, a government official from Mexico\u2019s social service agency in Father\u2019s municipality explained that Father would be offered six sessions of therapy in accordance with the psychological evaluation recommendation and that the first session was scheduled for December 18, 2013. The official additionally referenced the Consulate\u2019s request for Father to attend parenting classes but indicated that Father\u2019s municipality did \u201cnot have an institution capable of offering them,\u201d and therefore proposed that \u201c[parenting] classes be substituted by psychological therapy where facts based on paternity will be taken into consideration.\u201d\n{11} Father\u2019s termination of parental rights trial began on January 10, 2014. Father appeared telephonically and was assisted by an interpreter. In its opening argument, CYFD argued that Father had failed to comply with his treatment plan by not completing \u201ceven the minimal things he could have done while he was incarcerated\u201d in New Mexico and that Father had \u201conly done the minimal that he can since he left the United States.\u201d CYFD pointed out that Father had not completed a mental health assessment \u201cuntil just recently\u201d and that he had not completed substance abuse assessment \u201cuntil very recently.\u201d CYFD also argued that Father \u201cmay have done one [urinalysis] through the Mexican Consulate\u201d and \u201conly recently acquired safe and stable housing.\u201d CYFD also cited Father\u2019s failure to maintain weekly contact with CYFD, provide support for Child, give any gifts to Child, and communicate with Child as reasons supporting termination. CYFD also told the court that Child has no bond with Father and has not heard Father\u2019s voice or seen Father since the inception of the case.\n{12} Steckbauer testified that she developed Father\u2019s treatment plan based on the circumstances of his incarceration as well as his disclosures about his DWI and substance abuse history. Steckbauer explained that she visited Father monthly during his incarceration in New Mexico until August 2013 and that CYFD had mailed Father a copy of his treatment plan after he was deported. She testified that since Father\u2019s deportation, she had two telephone calls with Father that were facilitated by the Mexican Consulate to assess Father\u2019s situation. Steckbauer stated that Father completed the home study and psychological evaluation that CYFD requested through the Consulate \u201cbut [Father] hasn\u2019t completed any follow-up services.\u201d She also stated that Father submitted a urinalysis but had \u201cnot specifically completed a substance abuse assessment\u201d and that she had not received proof ofFather\u2019s completion of an addiction treatment program he engaged in during his incarceration in the United States. Further, Steckbauer said that Father had not completed parenting education and that he informed her during their last telephone call in December 2013 that he was \u201cstill waiting to find out when he was going to start parenting classes and therapy.\u201d Although Father had provided his financial information as part of the home study in Mexico, Steckbauer stated that he had not sent Child any financial support. Father was living with his mother and sister in Mexico, Steckbauer additionally testified, but he had not provided CYFD their names as potential placements for Child while Father was incarcerated in the United States. In summary, she stated that \u201capart from no longer being in custody\u201d Father had made no progress in eliminating causes and conditions of Child\u2019s neglect.\n{13} In Steckbauer\u2019s opinion, CYFD would have no justification to split up Child\u2019s current placement with his foster family, where Child had lived with his half-brother since the inception of the case. She stated that Child was very young when he entered the home, that \u201cthis is the home that [Child] knows[,]\u201d and that \u201che\u2019s very comfortable.\u201d Steckbauer also testified that Child also had specific needs related to his speech development and was receiving early intervention services. During her few phone calls with Father, Steckbauer \u201cworked to keep him informed of [Child\u2019s] well-being,\u201d but she stated that Father has not had any \u201chands-on experience\u201d in addressing Child\u2019s needs. Steckbauer testified that Father told her that he cares for Child but that Father stated that he has not had much contact with Child because ofFather\u2019s incarceration. She said that Father had not participated in family time with Child or had any communication with Child since CYFD took Child into custody. Steckbauer stated that Father wrote to Child during Father\u2019s incarceration but that he had not sent any letters to Child since Father was deported. Steckbauer further testified that she had explored the possibility ofFather\u2019s relatives in the United States serving as possible placements for Child, but they were either non-responsive to her requests or their legal status precluded their eligibility. According to Steckbauer, it would not be safe to return Child to Father because there had been no \u201cdirect communication\u201d between Father and Child and that \u201cit would be harmful to [Child] to place him suddenly with someone who he has no relationship with.\u201d\n{14} During cross-examination, Steckbauer testified that the Consulate had sent her an email with Father\u2019s home study and urinalysis results, but she admitted that she had not seen Father\u2019s psychological evaluation. She did not recall the date of the evaluation and did not have a copy of the evaluation in her file. Steckbauer also testified that she had not seen the December 18, 2013 letter regarding Father\u2019s therapy sessions. She stated that the evaluation and letter may be included in a packet of documents that she recently received from the Consulate, but she had not yet reviewed the documents. Nevertheless, Steckbauer testified, she knew the outcome of the evaluation because in December 2013 she had \u201ca thorough conversation\u201d with Father and the Consulate\u2019s protective services staff about the results. However, she indicated that her discussion with the Consulate\u2019s staff did not cover the December 18, 2013 letter. Father\u2019s counsel attempted to introduce Father\u2019s psychological evaluation and the December 16, 2013 letter regarding Father\u2019s therapy sessions, but because the documents had not been translated from Spanish into English, CYFD stipulated to a continuance of the trial.\n{15} Before trial resumed in February 2014, CYFD filed an amendment to its motion for termination, incorporating the grounds alleged in its original motion and asserting the additional ground that Father had abandoned Child. The court also held a subsequent permanency hearing on January 27, 2014. Father appeared telephonically and was assisted by an interpreter. CYFD informed the court that its amendment to its motion for termination was based on information CYFD received at the trial, specifically that Father had not contacted Child or provided support for Child. CYFD also argued that the psychological evaluation Father received in Mexico recommended that he receive various types of counseling but that Father had done nothing to obtain the services. In its permanency hearing order, the court formd that Father \u201cmade some efforts to comply with and cooperate in the treatment plan\u201d but that Father had not made progress toward alleviating the causes that precipitated CYFD\u2019s need to take custody of Child. The court adopted CYFD\u2019s latest treatment plan and also granted CYFD\u2019s amendment to its termination motion.\n{16} Steckbauer\u2019s testimony resumed on the second and final day of the termination trial, February 13, 2014. Her testimony revealed that her final conversation with Father occurred in early December 2013, prior to her receipt of Father\u2019s psychological evaluation and before Father began his therapy sessions. She testified that she talked with Father about scheduling the therapy sessions recommended by the psychological evaluation and that she asked Father to address parenting issues and his substance abuse history during the sessions. Steckbauer also informed Father that she had received the home study, but she did not discuss the results of the study with Father or notify him of any additional information that CYFD needed. At that time, Father inquired about Child, expressed that he wanted Child with him in Mexico, and asked Steckbauer for a picture of Child, which Steckbauer stated she did not send to Father.\n{17} Father\u2019s counsel introduced a January 30,2014 letter from the Mexican psychologist who had conducted Father\u2019s psychological evaluation. The letter, which Steckbauer said she had received from the Consulate, stated that Father \u201ccompleted the psychological therapy [sessions] on January 23, of this year, showing favorable control of emotions[.] Likewise, regarding the topic of [parenting] covered in therapy [sessions], [Father] is capable of being in charge of [Child].\u201d Given that parenting classes were not available in Father\u2019s village in Mexico, Steckbauer testified that she believed thatFather complied with the alternative recommendation to address parenting issues in his therapy sessions and that Father \u201caddressed parenting to the best of his ability\u201d in accordance with his treatment plan. Nevertheless, Steckbauer testified that she did not agree with the psychologist\u2019s conclusion about Father\u2019s parenting capability. For example, she stated that the letter did not alleviate her concerns about Father\u2019s \u201cimpulsivity\u201d issues that were identified as part of the psychologist\u2019s initial diagnosis. However, Steckbauer testified that she never asked Father to address impulsivity issues in his therapy sessions and that she had not communicated with Father since their December 2013 conversation. Steckbauer stated that she was unable to set up an appointment to speak with Father in January 2014 \u201cbecause of [her] caseload.\u201d\n{18} During redirect examination, CYFD elicited testimony from Steckbauer that was critical of the home study and psychological evaluation requested through the Consulate. With regard to the home study, Steckbauer testified that the study did nothing to explore Father\u2019s possible criminal history or whether there had been abuse or neglect allegations against Father in Mexico. She also said that she had no knowledge of how long it took Mexican investigators to complete the home study, whether investigators had interviewed members of Father\u2019s family outside of the home, or whether investigators had explored \u201cmedical issues\u201d of anyone in Father\u2019s family. Turning to Father\u2019s psychological evaluation, Steckbauer said that she had never seen a psychological evaluation \u201cas short as [Father\u2019s].\u201d She testified that out of the \u201cinnumerable\u201d psychological evaluations she had reviewed as a social worker, none of them had lacked \u201cdiagnosis one through four diagnoses\u201d or a \u201cglobal assessment of functioning.\u201d Father\u2019s evaluation failed to include these assessments and, in her experience as a social worker, she had never seen someone pass domestic violence, parenting education, and substance abuse areas with six sessions of therapy. She also testified that the urinalysis provided by Father did not satisfy her need to know whether Father was using illegal substances or alcohol.\n{19} At the conclusion of testimony, the court terminated Father\u2019s parental rights to Child. In its judgment, the court found that there was clear and convincing evidence that (1) Father abandoned Child, (2) Father had not alleviated the conditions and causes of neglect, (3) the conditions and causes of neglect were unlikely to change in the foreseeable future, and (4) CYFD made reasonable efforts to assist Father in adjusting those conditions. The court further found that termination \u201cwould promote the physical, mental, and emotional welfare and needs of [Child].\u201d This appeal followed.\nTERMINATION FOR ABANDONMENT UNDER SECTION 32A-4-28(B)(l)\n{20} As an initial matter, we address the district court\u2019s termination of Father\u2019s parental rights on grounds of abandonment under Section 32A-4-28(B)(l), Father advances a sufficiency of evidence claim to attack the district court\u2019s judgment regarding his abandonment of Child. However, our Supreme Court\u2019s opinion in In re Grace H. is controlling legal authority that dictates our analysis of this issue on appeal.\n{21} The ANA\u2019s definition of \u201cabandonment\u201d encompasses \u201cinstances when the parent, without justifiable cause . . . left the child with others, including the other parent or an agency, without provision for support and without communication for a period of . . . three months if the child was under six years of age.\u201d Section 32A-4-2(A)(2)(a). Section 32A-4-28(B)(l) imposes the mandatory requirement that a court terminate parental rights if \u201cthere has been an abandonment of the child by his parentsf.]\u201d CYFD relied heavily on Father\u2019s failure to send gifts, support, or letters to Child, except for one letter in April 2013, as evidence in support of termination on grounds of abandonment. See In re Adoption of Doe, 1976-NMCA-084, \u00b6 73, 89 N.M. 606, 555 P.2d 906 (\u201cThe typical kinds of conduct which constitute abandonment are the withholding of parental presence, love, care, filial affection and support and maintenance.\u201d (internal quotation marks and citation omitted)). In its findings of fact supporting termination, the district court specified that Father \u201chas had no contact and provided no support for [Child] for a period of at least three months prior to the commencement of the trial in this case . . . [Father] did not provide any justification for failing to contact or provide support for [Child].\u201d\n{22} In In re Grace H., our Supreme Court curtailed the statutory requirement that a court \u201cshall terminate parental rights\u201d under Section 32A-4-28(B)(l) if a child has been abandoned. The intent of the Legislature, our Supreme Court explained, is that Section 32A-4-28(B)(l) is \u201cto be used when there is no parent present with whom [CYFD] could work towards reunification prior to termination.\u201d In re Grace H., 2014-NMSC-034, \u00b6 41. The Court therefore held that Section 32A-4-28(B)(1) applies \u201cwhere a parent is absent prior to termination.\u201d In re Grace H., 2014-NMSC-034, \u00b6 43. Conversely, the Court held that Section 32A-4-28(B)(2) \u201cis to be used where 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 43. Section 32A-4-28(B)(2) imposes a separate statutory trigger for the termination of parental rights when abandonment of a child has occurred. See State ex rel. Children, Youth & Families Dep\u2019t v. Christopher B., 2014-NMCA-016, \u00b6 9, 316 P.3d 918 (\u201cAbuse or neglect and abandonment are separate and independent grounds for the termination of parental rights, and they have a distinct set of statutorily created requirements.\u201d). That section requires termination of parental rights when a \u201ccourt finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts by [CYFD] or other appropriate agency to assist the parent in adjusting the conditions that render the parent unable to properly care for the child.\u201d Section 32A-4-28(B)(2); see \u00a7 32A-4-2(E)(1) (defining a \u201cneglected child\u201d as a child \u201cwho has been abandoned by the child\u2019s parent, guardian or custodian\u201d).\n{23} In this case, the motions CYFD filed with the district court and the district court\u2019s judgment failed to identify which statutory mechanism was used to terminate Father\u2019s parental rights on the basis of abandonment. Our review of the record nonetheless reveals that CYFD proceeded under a theory of abandonment pursuant to Section 32A-4-28(B)(1) in moving to terminate Father\u2019s parental rights. In its closing argument, CYFD specifically stated that \u201cthe abandonment statute is mandatory\u201d and requires the court to terminate parental rights if a parent has abandoned his or her child. Moreover, at the conclusion of trial, the district court found that Child was abandoned as defined under Section 32A-4-2(A)(2)(a) and ultimately determined that Section 32A-4-28 required the court to terminate Father\u2019s parental rights. Therefore, in view of In re Grace H., the district court\u2019s use of Section 32A-4-28(B)(l) to terminate Father\u2019s parental rights on the basis of abandonment was improper. The record clearly supports that Father was present prior to the district court\u2019s termination and that Father expressed a legitimate desire to take responsibility for Child. See State ex rel. Children, Youth & Families Dep't v. Melvin C., 2015-NMCA-067, \u00b6 23, 350 P.3d 1251 (interpreting In re Grace H.\u2019s use of \u201clegitimate desire\u201d as \u201creferencing] a parent who is present and willing to participate, even if they do so late in the game, so long as they do so prior to termination\u201d (internal quotation marks and citation omitted)).\n{24} It is important to note that the district court did not terminate Father\u2019s rights based on presumptive abandonment. Accordingly, our holding does not reach the question of whether presumptive abandonment was an appropriate basis for termination under the specific circumstances of this case. See, e.g., Section 32A-4-28(B)(3) (providing that a court shall terminate parental rights if certain conditions exist that create a presumption of abandonment that has not been rebutted); see also In re Grace H., 2014-NMSC-034, \u00b6\u00b6 36, 38 (stating that presumptive abandonment is distinct from abandonment under Section 32A-4-28(B)(1) and Section 32A-4-28(B)(2) and that presumptive abandonment was not applicable to the analysis of the case).\nEVIDENCE SUPPORTING THAT THE CAUSES AND CONDITIONS OF NEGLECT WERE UNLIKELY TO CHANGE IN THE FORESEEABLE FUTURE UNDER SECTION 32A-4-28(B)(2)\n{25} Father also challenges the sufficiency of the evidence underlying the district court\u2019s judgment terminating his parental rights to Child under Section 32A-4-28(B)(2), specifically arguing that clear and convincing evidence did not exist to prove that (1) Father neglected Child, (2) the causes and conditions of neglect were unlikely to change in the foreseeable future, and (3) CYFD made reasonable efforts to assist Father in adjusting the conditions that rendered him unable to properly care for Child.\n{26} \u201cTerminating parental rights implicates rights of fundamental importance.\u201d State ex rel. Children, Youth & Families Dep\u2019t v. Hector C., 2008-NMCA-079, \u00b6 11, 144 N.M. 222, 185 P.3d 1072. Accordingly, clear and convincing evidence is the standard of proof for termination of parental rights cases. Section 32A-4-29(I); State ex rel. Children, Youth & Families Dep\u2019t v. Lance K., 2009-NMCA-054, \u00b6 16, 146 N.M. 286, 209 P.3d 778. To meet the clear and convincing evidence standard, the evidence \u201cmust instantly tilt 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 Adoption of Doe, 1982-NMCA-094, \u00b6 31, 98 N.M. 340, 648 P.2d 798 (internal quotation marks and citation omitted). In order to analyze Father\u2019s claims of evidentiary sufficiency, we must determine whether the district court\u2019s decision is supported by substantial evidence of a clear and convincing nature. State ex rel. Children, Youth & Families Dep\u2019t v. Patricia H., 2002-NMCA-061, \u00b6 22, 132 N.M. 299, 47 P.3d 859. \u201cSubstantial evidence is relevant evidence that a reasonable mind would accept as adequate to support a conclusion.\u201d State v. Laguna, 1999-NMCA-152, \u00b6 7, 128 N.M. 345, 992 P.2d 896. On appeal, this Court will \u201cnot reweigh the evidence or substitute our judgment for that of the trial court on factual matters or on matters of credibility.\u201d State ex rel. Children, Youth & Families Dep\u2019t v. William M., 2007-NMCA-055, \u00b6 59, 141 N.M. 765, 161 P.3d 262. \u201cWe will uphold the district court\u2019s judgment if, viewing the evidence in the light most favorable to the judgment, a fact finder could properly determine that the clear and convincing standard was met.\u201d Hector C., 2008-NMCA-079, \u00b6 11 (internal quotation marks and citation omitted).\n{27} The ANA requires that CYFD carry the clear and convincing evidentiary burden of proof in termination of parental rights cases. Under Section 32A-4-28(B)(2), CYFD must establish that a child has been neglected or abused as contemplated by the ANA. Moreover, CYFD must show \u201cthat the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts by [CYFD] or other appropriate agency to assist the parent in adjusting the conditions that render the parent unable to properly care for the child.\u201d Section 32A-4-28(B)(2). CYFD must also demonstrate that termination serves \u201cthe physical, mental and emotional welfare and needs of the child, including the likelihood of the child being adopted if parental rights are terminated.\u201d Section 32A-4-28(A); see Patricia H., 2002-NMCA-061, \u00b6 21.\nA. Finding of Neglect\n{28} Father first contends that there was not clear and convincing evidence to support the district court\u2019s finding that he neglected Child because Father\u2019s plea and the court\u2019s adjudication under Section 32A-4-2(E)(2) were based solely on his incarceration status. Father argues that his subsequent release from incarceration in the United States ameliorated the basis for neglect. We disagree.\n{29} Our standard of review for the district court\u2019s adjudication of neglect \u201cis a narrow one.\u201d In re Termination of Parental Rights of Eventyr J., 1995-NMCA-087, \u00b6 3, 120 N.M. 463, 902 P.2d 1066. Father suggests that evidence that arose after the district court\u2019s adjudication of neglect should nullify the court\u2019s finding, but our review is restricted \u201cto a determination of whether the district court could have found [neglect] based upon the evidence before it.\u201d State ex rel. Children, Youth & Families Dep\u2019t v. Shawna C., 2005-NMCA-066, \u00b6 7, 137 N.M. 687, 114 P.3d 367. We therefore reject Father\u2019s argument that his release from jail after the district court\u2019s adjudication of neglect is a dispositive legal ground on which we may reverse the court\u2019s finding.\n{30} The district court adjudicated Child as neglected by Father pursuant to Section 32A-4-2(E)(2). That section provides that a \u201cneglected child\u201d is 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 the failure or refusal of the parent . . . when able to do so, to provide them[.]\u201d Id. Father pleaded no contest to the neglect allegations, and the district court accepted Father\u2019s plea after inquiring as to the factual basis for Father\u2019s admission. See Rule 10-342(D) NMRA (\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 admissionf.]\u201d). The court found that Father had \u201cfailed to provide for [Child\u2019s] basic necessities^]\u201d and the court adopted CYFD\u2019s position that Father was \u201cunable to care for [Child] in a safe and stable environment due to his incarceration.\u201d\n{31} It is true that Father\u2019s incarceration status alone is not sufficient for the district court to find that Father neglected Child. See Shawna C., 2005-NMCA-066, \u00b6 30 (concluding that the ANA \u201cdoes not permit a court to find abuse or neglect based solely on a parent\u2019s [incarceration] status\u201d). However, despite Father\u2019s incarceration at the time of the district court\u2019s adjudication, he nevertheless had a continuing legal obligation to provide proper care for Child. \u201cWhen a parent is incarcerated and unable to fulfill ordinary parental duties, the court should consider whether the parent has pursued other opportunities and avenues that could be available in order to carry out such duties to the best of his or her ability.\u201d Hector C., 2008-NMCA-079, \u00b6 23. Although the record of the proceedings below indicates that Father\u2019s inability to care for Child arose from his incarceration, Father did not provide financial support for Child or make other arrangements for Child\u2019s care or placement while Father was incarcerated in the United States. Based on this evidence, substantial evidence supported the district court\u2019s finding that Father neglected Child.\nB. Causes and Conditions of Neglect\n{32} Father next argues that clear and convincing evidence did not support the district court\u2019s finding that the causes and conditions of Child\u2019s neglect were unlikely to change in the foreseeable future. Father argues that (1) he promptly cooperated with his treatment plan requirements after his deportation, (2) the court improperly relied on evidence of his past history to support the termination of his parental rights, (3) CYFD\u2019s assertions regarding his mental health diagnosis were speculative and failed to comport with the court\u2019s original finding of neglect, and (4) the district court\u2019s reliance on CYFD\u2019s alleged deficiencies of the home study was likewise improper.\n{33} In reviewing Father\u2019s sufficiency claim, we are mindful that a treatment plan under the ANA \u201cidentifies, addresses, and attempts to correct those circumstances and conditions which rendered the child abused or neglected.\u201d State ex rel. Children, Youth & Families Dep't v. Michelle B., 2001-NMCA-071, \u00b6 38, 130 N.M. 781, 32 P.3d 790. At trial, Steckbauer testified that she based her development of Father\u2019s treatment plan on his disclosures about \u201chis DWI history [and] substance abuse history\u201d and the \u201crestrictions of [Father\u2019s] criminal situation[.]\u201d Related to these causes and conditions, the evidence must be substantial to meet the statutory condition that Father was unlikely to alleviate them in the foreseeable future. Patricia H., 2002-NMCA-061, \u00b6 22. We have construed \u201cforeseeable future\u201d to \u201crefer to corrective change within a reasonably definite time or within the near future.\u201d Id. \u00b6 34 (internal quotation marks and citation omitted).\n{34} CYFD initiated termination proceedings approximately one month after Father was deported. At that time, Child had been in CYFD\u2019s custody for nine months. Steckbauer testified that she never received proof of Father\u2019s completion of the addiction treatment program during his incarceration in the United States, but the evidence presented to the district court at trial focused primarily on Father\u2019s compliance with his treatmentplan following his deportation. After Father\u2019s deportation, CYFD requested the assistance of the Mexican Consulate in conducting a psychological evaluation and home study for Father. The evidence clearly established that Father voluntarily and timely participated in a psychological evaluation arranged by the Consulate and completed six sessions of individual therapy that were recommended by the evaluation. Father also obtained employment, participated in a study of the home where he lived with his mother and sister, disclosed his financial information as part of that study, and submitted to a urinalysis that screened for illegal drugs.\n1. Evidence Supporting Father\u2019s Alcohol and Substance Use\n{35} The district court did not enter a finding that CYFD presented evidence that Father\u2019s alcohol and substance abuse persisted as a continuing cause and condition of neglect. Father therefore challenges the district court\u2019s termination decision by arguing that the district court erred in relying on stale and speculative evidence that was based on generalizations of Father\u2019s past conduct. In response, CYFD points to the evidence of Father\u2019s previous DWI conviction, which CYFD argues resulted from Father\u2019s \u201chistory of substance abuse\u201d and cites Father\u2019s submission of \u201conly one drug screen\u201d that did not test for alcohol.\n{36} With respect to the drug screen, Steckbauer testified that the urinalysis submitted by F ather on November 6,2013 did not satisfy her need to know whether Father was using alcohol or other substances. The court found that Father \u201conly provided one [urinalysis] during the life of the case, but did not provide a series of tests to determine whether alcohol and substance abuse issues were being addressed or alleviated. The [urinalysis] provided did not test for alcohol, one of [Father\u2019s] issues.\u201d However, there is no evidence that CYFD notified the Consulate or Father that the initial urinalysis was deficient because it failed to test for alcohol. There is likewise no evidence that CYFD made any requests through the Consulate or to Father for additional urinalyses that would have established whether Father had failed to alleviate his alcohol problem, despite the treatment plan\u2019s requirement that Father \u201cwill provide random [urinalyses] as determined by [CYFD].\u201d (Emphasis added). CYFD also failed to present any evidence suggesting that Father was directed by CYFD to submit urinalyses that screened for alcohol but was noncompliant or unwilling to do so. Steckbauer\u2019s final conversation with Father occurred in early December 2013, and Father testified that Steckbauer did not discuss the subject of drug tests with him at all.\n{37} In the absence of evidence showing any efforts on the part of CYFD to obtain additional urinalyses, we do not believe that Father\u2019s submission of one inconclusive drug screen constituted evidence that he had failed to alleviate the causes and conditions of neglect or was unlikely to do so in the foreseeable future. Cf. State ex rel. Children, Youth & Families Dep\u2019t v. Amanda H., 2007-NMCA-029, \u00b6 22, 141 N.M. 299, 154 P.3d 674 (holding that an initial positive toxicology test was inconclusive and therefore did not constitute clear and convincing evidence that established the child\u2019s neglect). The district court incorrectly applied the burden of proof that is required in a termination of parental rights case by holding the informational deficit regarding Father\u2019s alcohol and substance use against him. Notably, in announcing its findings at the conclusion of trial, the court stated that Father \u201cha[d] not presented evidence that supports the conclusion\u201d that he had alleviated the causes and conditions of neglect. The court specified that there was evidence that Father \u201chas an alcohol problem\u201d but that there was no evidence regarding \u201cwhether he\u2019s still drinking.\u201d CYFD is not entitled to transfer its evidentiary burden under the ANA as a result of Father\u2019s deportation, particularly when Father made efforts to comply with a treatment plan that imposes responsibilities on CYFD to assess the continuing existence of the causes and conditions of neglect. Such a result would contravene the statutory duty of CYFD under the ANA and undermine the fundamental nature of parental rights. See State ex rel. Children, Youth & Families Dep\u2019t v. Marsalee P., 2013-NMCA-062, \u00b6 25, 302 P.3d 761 (\u201cThe district court has an affirmative obligation to make sure that the requirements of the [ANA] are followed prior to the termination of something as fundamental as the parental rights to a child.\u201d). The district court therefore erred by relying on the lack of evidence regarding Father\u2019s alcohol and substance abuse as if it were, in actuality, evidence supporting its finding that Father was unlikely to alleviate his alcohol and substance abuse problem in the foreseeable future. See In re E.N.C., 384 S.W.3d 796, 808 (Tex. 2012) (\u201cA lack of evidence does not constitute clear and convincing evidence.\u201d).\n{38} As additional evidence of the persistence of Father\u2019s \u201chistory of substance abuse\u201d as a cause and condition of neglect, CYFD relies on Steclcbauer\u2019s testimony that six therapy sessions were inadequate to address that history. CYFD also argues that Father was not engaged in substance abuse treatment or \u201crelapse prevention\u201d at the time that his parental rights were terminated. At trial, Steckbauer testified that she spoke with Father in early December 2013 about \u201chaving the therapy sessions set up\u201d that were recommended by the psychological evaluation and that she discussed with Father \u201cwhen [the sessions] would be beginning.\u201d She told Father that he should address \u201chis substance abuse history\u201d in his therapy sessions as part of his treatment plan requirements. The evidence showed that Father\u2019s schedule of therapy sessions began on December 18,2013 and that he completed the sessions on January 23, 2014.\n{39} Although Father\u2019s treatment plan required CYFD to \u201cmake appropriate recommendations [,] . . . make appropriate referrals[,] and monitor [Father\u2019s] progressf,]\u201d Steckbauer had no further contact with Father after their telephone conversation in early December 2013. Steckbauer requested documentation from the Consulate that described what issues were specifically being addressed in Father\u2019s therapy sessions, but she did not contact Father after she received the documents from the Consulate or after she received confirmation of Father\u2019s completion of the recommended therapy sessions. There is also no evidence that Steckbauer or anyone else from CYFD communicated with the Consulate after Father completed the sessions. Instead, CYFD elicited testimony from Steckbauer in which she stated generally that, based on her experience, she had never seen a person successfully deal with parenting, domestic violence, and substance abuse issues in six sessions of therapy. The court found that Father had participated in six individual therapy sessions recommended by the psychological evaluation but that the sessions \u201cdid not satisfy [CYFD\u2019s] requirement for . . . substance abuse[.]\u201d The court also found that Father \u201cdid not participate in a . . . substance abuse assessment^]\u201d even though CYFD did not present evidence that it requested an assessment through the Consulate or otherwise referred Father for an assessment.\n{40} We agree with Father that CYFD relied on vague references to Father\u2019s past to draw speculative inferences about the current and future existence of the causes and conditions of neglect. See Baca v. Bueno Foods, 1988-NMCA-l 12, \u00b6 15, 108 N.M. 98, 766 P.2d 1332 (\u201cEvidence from which a proposition can be derived only by speculation among equally plausible alternatives is not substantial evidence of the proposition.\u201d). Other than Father\u2019s incarceration for D WI and Steckbauer\u2019s testimony that Father disclosed a history of substance abuse, we could not identify any explanations or details in the record regarding the extent or severity of Father\u2019s history of alcohol or substance abuse, such as past criminal convictions or the specific types of substances involved. The record also does not explain whether the basis for Father\u2019s DWI conviction was for the use of alcohol or drugs. CYFD\u2019s evidence in support of termination consisted solely of the testimony of Steckbauer, who instructed Father to address his \u201csubstance abuse history\u201d in his therapy sessions but then never communicated with Father either during or after he completed the recommended sessions. In Hector C., we held that the evidence was insufficient to support a finding that the causes and conditions of neglect were unlikely to change in the foreseeable fixture where \u201c[n]o effort was made by CYFD to present an opinion . . . based on [the fjather\u2019s current situation and on new information that had become available since [the father\u2019s] evaluation.\u201d 2008-NMCA-079, \u00b6 19 (emphasis added). In that case, CYFD did offer expert testimony from a psychologist, who opined that the father could not resolve the causes and conditions of neglect of his child due to the combination of the father\u2019s history of drug addiction, gang affiliation, and prior incarceration. Id. \u00b6\u00b6 15, 19. We determined that the \u201cevidence was stale for the purpose of determining whether those conditions persisted at the time of the hearing or would persist into the future.\u201d Id. \u00b6 16 (quoting State ex rel. Dep\u2019t of Human Servs. v. Natural Mother, 1981-NMCA-103, \u00b6 9, 96 N.M. 677, 634 P.2d 699). We agree with Father that the district court similarly based its finding on stale evidence in this case.\n{41} CYFD developed its treatment plan to address Father\u2019s \u201cDWI history [and] substance abuse history[,]\u201d but it did not present any evidence that these causes and conditions persisted or were unlikely to change in the foreseeable future. Father\u2019s DWI arrest occurred in December 2012, which was prior to the time Child was taken into custody, and more than a year had elapsed between Father\u2019s arrest and the final day of the termination trial. Given that CYFD did not reevaluate or communicate with Father after early December 2013, Steckbauer\u2019s opinion about Father\u2019s progress focused on Father\u2019s past and whether, in her general experience as a social worker, \u201csomeone\u201d could resolve those issues in six sessions of therapy. We are not persuaded that Steckbauer\u2019s testimony alone is the type of evidence that leaves the \u201cfact finder\u2019s mind . . . with an abiding conviction that the evidence is true.\u201d In re Adoption of Doe, 1982-NMCA-094, \u00b6 31 (internal quotation marks and citation omitted); see Fitzgerald v. Fitzgerald, 1962-NMSC-028, \u00b6 2, 70 N.M. 11, 369 P.2d 398 (\u201c[Testimony founded upon mere surmise, guess or conjecture is not substantial to support a finding of fact.\u201d). CYFD did not introduce any other evidence in support of the conclusion that Father\u2019s past conduct demonstrated that the causes and conditions of neglect persisted at the time of trial, were unlikely to change, and currently impacted Father\u2019s ability to parent Child. This lack of evidence does not constitute clear and convincing evidence.\n2. Evidence Supporting Father\u2019s Mental Health and Domestic Violence Issues\n{42} We now turn to the evidence pertaining to Father\u2019s mental health and domestic violence history. Father contends that the court\u2019s finding that Father was unlikely to alleviate the causes and conditions of neglect was improperly based on stale and speculative evidence related to Father\u2019s \u201cimpulsivity.\u201d In defending the court\u2019s finding on appeal, CYFD cites Steckbauer\u2019s testimony that Father\u2019s completion of six sessions of therapy was inadequate to address the \u201cmagnitude and severity\u201d of the issues identified in Father\u2019s psychological evaluation, namely his problems with impulse control. CYFD additionally cites its \u201cconcerns\u201d with Father\u2019s domestic violence history and that Father never completed a domestic violence assessment.\n{43} The district court heard testimony from Steckbauer that she instructed Father in early December 2013 to address \u201cparenting\u201d and \u201chis domestic violence history\u201d in therapy. During cross-examination on the final day of trial on February 13, 2014, Father\u2019s counsel introduced a letter dated January 30, 2014 from the Mexican psychologist who had evaluated Father. The letter, which Steckbauer said she had received from the Consulate, stated that Father had successfully completed his therapy sessions, showed \u201cfavorable control of [his] emotions[,]\u201d and was \u201ccapable of being in charge of [Child].\u201d When asked in cross-examination whether the letter resolved her concerns about the psychologist\u2019s initial diagnosis that Father \u201clacks control of his impulses[,]\u201d Steckbauer answered not \u201ccompletely\u201d because \u201csomebody could be still struggling with impulsivity and maybe be seen to be able to make decisions, I don\u2019t know.\u201d Steckbauer said that \u201cimpulsivity\u201d is a \u201cbig issue\u201d that CYFD considers when assessing parental capacity and that CYFD did not \u201chave anything specifically stating that [impulsivity] was addressed.\u201d\n{44} When asked whether Father complied with the treatment plan requirement for parenting classes, Steckbauer testified that, based on her knowledge of the documents she received from the Consulate, she believed Father addressed parenting education \u201cto the best of his ability\u201d because parenting classes were unavailable in Father\u2019s municipality. Nonetheless, Steckbauer testified that she did not agree with the psychologist\u2019s conclusion about Father\u2019s parenting capability because she did not believe that the psychologist\u2019s letter was a \u201cfull assessment\u201d of the multiple aspects that factor into CYFD\u2019s determination regarding someone\u2019s ability to parent a child. Steckbauer testified that \u201cthere\u2019s more than one need, and saying that [Father] completed therapy as an equivalent of parenting classes, it\u2019s great . . . but I don\u2019t think that [Father\u2019s psychologist] from six sessions of therapy could speak to that.\u201d CYFD also elicited testimony from Steckbauer that indicated Father\u2019s psychological evaluation was deficient. Steckbauer stated that Father\u2019s therapy sessions were, in her experience, inadequate to address domestic violence, parenting education, and substance abuse areas.\n{45} We agree with Father that the evidence was insufficient to support the district court\u2019s finding that Father had failed or was unlikely to alleviate the causes and conditions of Child\u2019s neglect in the foreseeable future. In its findings, the court specified that the psychological evaluation of Father \u201cwas not very revealing regarding his mental health\u201d and \u201cdid not use any of the standard testing recognized in the United States.\u201d The court also stated at the conclusion of trial that the evaluation \u201cdoesn\u2019t really tell us much, except that [Father] has some impulsivity problems, which is evident in what\u2019s happened here in his past.\u201d The court further noted that Father participated in six individual therapy sessions recommended by the evaluation but that the sessions \u201cdid not satisfy [CYFD\u2019s] requirement for domestic violence . . . and parenting counseling.\u201d Again, the court relied on a lack of evidence establishing the adequacy of Father\u2019s mental health and parenting capabilities as if it were, in reality, evidence demonstrating that the causes and conditions of Child\u2019s neglect persisted at the time of trial or were likely to continue into the future.\n{46} CYFD did not present evidence that Father was unable to safely parent Child because his present condition was plagued by unresolved mental health problems or domestic violence issues. In State ex rel. Children, Youth & Families Dep\u2019t v. Athena H., this Court held that substantial evidence supported the district court\u2019s finding that the mother was unlikely to alleviate the causes and conditions of neglect due to her continued psychological instability and \u201cthe chronic abuse and trauma\u201d that the children suffered while in the mother\u2019s care. 2006-NMCA-113, \u00b6 12, 140 N.M. 390, 142 P.3d 978. In that case, the evidence in support of termination consisted of the testimony of the children\u2019s therapist and a child psychologist appointed by the court as an expert in the case. Id. \u00b6\u00b6 10, 12. The evidence also demonstrated that the mother had complied with the treatment plan to the best of her ability but that she had discontinued \u201cthe treatment two years prior to the termination hearing because she . . . did not believe that she needed continued care.\u201d Id. \u00b6 10. Unlike in Athena H., CYFD did not present evidence that Father suffered from the current or long-term impacts of \u201cimpulsivity\u201d that rendered him unable to properly parent Child. Even assuming the existence of this condition, CYFD did not present evidence that Father\u2019s condition persisted despite his efforts to comply with his treatment plan or that he was unwilling to pursue further treatment for the condition.\n{47} There is also no evidence that CYFD made any effort to make proper referrals, obtain information about Father\u2019s condition, or reevaluate Father after it received his psychological evaluation or the letter regarding Father\u2019s completion of therapy. CYFD did not present any opinion, other than Steckbauer\u2019s testimony, regarding the credibility of Father\u2019s psychological evaluation, comparisons to evaluations performed in the United States, the adequacy of Father\u2019s therapy sessions, or the conclusions that could be drawn about Father from his participation in the evaluation or the sessions. Additionally, there was no evidence that any impulse control or domestic violence issues were connected to the causes and conditions that brought Child into CYFD\u2019s custody. In our review of the record, we did not identify any facts that would explain or clarify the details of Steckbauer\u2019s reference to Father\u2019s domestic violence history, and CYFD did not introduce any evidence at trial in this regard. We therefore cannot conclude that CYFD met its burden of proof and that there was substantial evidence to justify termination on those grounds. See, e.g., State ex rel. Children, Youth & Families Dep\u2019t v. Stella P., 1999-NMCA-100, \u00b6 35, 127 N.M. 699, 986 P.2d 495 (stating that in a case of a parent whose mental illness constituted the basis for CYFD\u2019s proposed termination, CYFD must present \u201csufficient testimony to allow the court to make the statutorily required findings\u201d under the ANA).\n3. Evidence Supporting Father\u2019s Ability to Provide Safe and Stable Housing\n{48} Finally, we address the evidence pertaining to the home study requested by CYFD and conducted by the Consulate as part of Father\u2019s treatment plan. Given that Father pleaded no contest to CYFD\u2019s neglect allegations that he had \u201cfailed to provide for [Child\u2019s] basic necessities[,]\u201d Father\u2019s ability to obtain safe and stable housing was obviously fundamental to Father\u2019s progress toward alleviating the causes and conditions of neglect. See In re Grace H., 2014-NMSC-034, \u00b6 11 (stating that the treatment plan required by the ANA sets forth services \u201cthe parents must complete in order to address the causes and conditions which led to removal of the child from the home\u201d). Accordingly, Father\u2019s treatment plan required that he \u201cobtain and maintain safe and stable housing[,]\u201d and CYFD was required to \u201cmonitor [Father\u2019s] current living arrangement.\u201d Steckbauer also testified that she instructed Father to have a home study completed as part of the treatment plan.\n{49} The home study was conducted on November 5, 2013 and sent by email to Steckbauer by Consulate staff. The study indicated that Father had obtained employment and lived in a home with his mother and sister. Father also provided his financial information as part of the study. Steckbauer testified that, based on the study, the home looked appropriate and that she did not have any problem with its physical structure or cleanliness. Despite the favorable results, CYFD\u2019s counsel elicited testimony from Steckbauer that was critical of the study. Steckbauer testified that the study did nothing to explore Father\u2019s possible criminal history or any possible abuse or neglect allegations against Father in Mexico. She also said that she had no knowledge of the length of time it took Mexican investigators to complete the home study, whether investigators had interviewed members of Father\u2019s family outside of the home, or whether investigators had explored \u201cmedical issues\u201d of anyone in Father\u2019s family. The district court found that the \u201chome was deemed appropriate, however, the home study did not include a criminal history for the family members, or any documentation as to a lack of abuse and neglect allegations. It was unclear whether anyone other than the family members were interviewed, or whether any medical issues were considered.\u201d The court stated at the conclusion of trial that Father\u2019s mother and sister, who lived in the home, were \u201cprobably good people, but we don\u2019t know.\u201d\n{50} Once more, based on the lack of evidence before it, the district court improperly shifted CYFD\u2019s statutory burden of proof required in a termination case to Father. The court\u2019s finding pointed to the lack of information included in the study as evidence in favor of termination; however, it was CYFD\u2019s statutory responsibility to support its termination motion by presenting evidence that established that Father\u2019s home was unsafe or unstable, which CYFD failed to do. To the contrary, based on the evidence presented at trial, the district court found that the home \u201cwas deemed appropriate[.]\u201d Even more telling, CYFD did not present evidence that suggested that the study was incomplete or deficient as a result of Father\u2019s unwillingness to participate in the study or disclose information. Steckbauer informed Father in December 2013 that she had received the home study, but she never discussed the results of the study with Father nor notified him of any additional information CYFD required. There is also no evidence that CYFD communicated with the Consulate to express its reservations about the completeness of the study or to request any information whatsoever. We therefore are not convinced that the evidence of the home study constitutes substantial evidence supporting the district court\u2019s finding.\n{51} Notably, in announcing its findings at the conclusion of trial, the court explained that it believed that Father had made efforts to alleviate the causes and conditions of Child\u2019s neglect, \u201ccredited] him with making efforts,\u201d and stated that it \u201cunderstood] it\u2019s difficult in Mexico.\u201d While we recognize that \u201c[e]ven with a parent\u2019s reasonable efforts, ... the parent may not be able to make the changes necessary to rectify the causes and conditions of the neglect and abuse so as to enable the court to conclude that the parent is able to properly care for the child],]\u201d Athena H., 2006-NMCA-113, \u00b6 9, we cannot conclude that there was clear and convincing evidence to support the district court\u2019s determination that Father was unable to alleviate the causes and conditions of Child\u2019s neglect in the foreseeable future. We reiterate that Father\u2019s deportation did not absolve CYFD from its required statutory burden of proof in termination proceedings. See State ex rel. Children, Youth & Families Dep't v. Maria C., 2004-NMCA-083, \u00b6 22, 136 N.M. 53, 94 P.3d 796 (\u201cBecause a [termination of parental rights] hearing irrevocably divests parents of all legal rights in their children . . . CYFD carries the burden of proof by clear and convincing evidence.\u201d).\n{52} In holding that CYFD failed to meet its burden, we do not overlook the evidence pertaining to Father\u2019s efforts to provide support for and communicate with Child. This evidence may indicate abandonment of Child; however, abandonment under Section 32A-4-28(B)(l) was not a proper basis for termination in this case. See Christopher B., 2014-NMCA-016, \u00b6 12 (\u201cMultiple factors may indicate abandonment, including an absence of financial support and a purposeful declination of opportunities to remain in contact with the child or children.\u201d); see also In re Guardianship of Ashleigh R., 2002-NMCA-103, \u00b6 22, 132 N.M. 772, 55 P.3d 984 (\u201cA parent\u2019s contact with the children and financial support for the children during their absence will weigh against a finding of abandonment.\u201d). We have difficulty concluding that this same evidence supports termination on the basis that Father was unlikely to alleviate the causes and conditions of Child\u2019s neglect in the foreseeable future. Father\u2019s ability to provide financial support to Child was hampered by his incarceration for the initial seven months of the case, but the home study indicated that Father obtained employment shortly after his deportation. Steckbauer testified that an important part of Father\u2019s \u201cfinancial plan\u201d requirement under his treatment plan was that he maintain employment. Given the very young age of Child, we are also not persuaded thatFather\u2019s failure to send letters, which Child could not read or comprehend, is dispositive ofFather\u2019s inability to maintain a bond with Child. Child was four months old at the time CYFD took him into custody and was just over a year old at the time of Father\u2019s termination trial. We do not believe this evidence alone is substantial evidence to support termination under Section 32A-4-28(B)(2).\nC. Reasonable Efforts by CYFD\n{53} Father next argues that clear and convincing evidence did not support the district court\u2019s determination that CYFD made reasonable efforts to assist Father in adjusting the causes and conditions that led to CYFD\u2019s custody of Child. Father contends CYFD failed to comply with its statutory obligation to pursue reunification by not engaging in sufficient efforts to communicate with Father or the Mexican Consulate following his deportation, and he advances several arguments in support of this claim, including that CYFD (1) failed to request information that it deemed necessary to complete the home study and Father\u2019s psychological evaluation; and (2) failed to determine ifFather\u2019s relatives in Mexico would be a suitable placement for Child.\n{54} CYFD is required to \u201cprovide reasonable efforts to assist the parent to change the conditions that gave rise to the neglect and abuse, and the district court must consider the results of CYFD\u2019s efforts.\u201d Athena H., 2006-NMCA-113, \u00b6 9. \u201cWhat constitutes reasonable efforts may vary with a number of factors, such as the level of cooperation demonstrated by the parent and the recalcitrance of the problems that render the parent unable to provide adequate parenting.\u201d Patricia H., 2002-NMCA-061, \u00b6 23. In determining whether CYFD\u2019s efforts were reasonable, we also consider the duration of reunification services provided to a parent by CYFD prior to resorting to termination. Id. \u00b6 26. This Court has used the time period for reunification services set forth under federal law as a touchstone in our reasonable efforts analysis. Id. The Adoption and Safe Families Act (ASFA), Pub. L. No. 105-89, 111 Stat. 2115 (1997), provides that a fifteen-month period following the placement of a child into foster care consists of \u201ctime-limited reunification services.\u201d Id.; see also Hector C., 2008-NMCA-079, \u00b6 26 (applying ASFA\u2019s fifteen-month window as the time period for analyzing whether CYFD\u2019s efforts were reasonable under the ANA).\n{55} W e cannot conclude that substantial evidence supported the district court\u2019s determination that CYFD made reasonable efforts when the evidence shows that CYFD\u2019s approach to the circumstances of Father\u2019s deportation foreclosed any possibility of achieving the goal of reunification. Although Father\u2019s treatment options during his incarceration in the United States were limited, Father engaged in an addiction treatmentprogram, provided CYFD the names of relatives living in the United States so that placement options could be explored, and wrote to Child in April 2013. Steckbauer testified that she did use the assistance of an interpreter to meet with Father monthly during that time, and she also explored Father\u2019s relatives in the United States as possible placement options for Child. Yet CYFD\u2019s reunification efforts abruptly changed following Father\u2019s deportation and participation in treatment services in Mexico.\n{56} CYFD requested the Consulate\u2019s assistance in conducting a psychological evaluation and a home study after Father was deported in September 2013. Nevertheless, at the end of October 2013, CYFD moved to terminate Father\u2019s parental rights. In its motion, CYFD asserted that Father had failed to comply with all aspects of his treatment plan, including that Father failed to (1) maintain weekly contact with CYFD, (2) discuss his history with CYFD, (3) complete a mental health assessment, (4) submit proof that he had obtained safe and stable housing, and (5) participate in family time with Child. We are troubled that CYFD requested the Consulate\u2019s assistance in offering treatment plan services to Father following his deportation, then approximately one month later sought to terminate Father\u2019s rights on grounds that he failed to comply with that plan. It is also disconcerting that the evidence presented at trial plainly conflicted with certain key representations about Father\u2019s conduct alleged by CYFD in its termination motion. As we previously stated, Steckbauer based her development of the treatment plan on Father\u2019s disclosures about his history. Steckbauer also testified that Father called her after he was deported in September 2013, that she spoke to him by telephone in October 2013, and that during that conversation she told him to maintain monthly contact with CYFD. Furthermore, Steckbauer testified that Father was unable to have in-person visitation with Child, demonstrating that CYFD was well aware that Father\u2019s participation in family time with Child was complicated by the circumstances of his incarceration and deportation.\n{57} Despite CYFD\u2019s termination motion, Father demonstrated efforts to cooperate in treatment services intended to assist him in adjusting the conditions that rendered him unable to properly care for Child. By early December 2013, Father participated in the home study and psychological evaluation requested by CYFD. He also submitted a urinalysis and was slated to begin therapy sessions that were recommended by the psychological evaluation. During his telephone conversation with Steckbauer that month, Father inquired about Child\u2019s well-being and asked Steckbauer to send him a picture of Child; however, Steckbauer ceased her communication with Father after that telephone call, citing \u201ccaseload\u201d issues as the reason she did not arrange a call with Father. Steckbauer did not inform Father of additional information necessary to complete the home study or direct him to submit additional urinalyses. Further, we And it noteworthy that Steckbauer testified that she never spoke to Father about what he earned from his job, whether he was saving his money, or why he was not sending money to Child, despite his employment. She also did not contact him after she received his psychological evaluation and, as a result, never recommended to Father that he address any impulsivity problems in his therapy sessions. Steckbauer testified that \u201cimpulsivity\u201d was a significant issue in assessing parental capacity but that Father was never notified that his \u201cimpulsivity\u201d problems could constitute a basis for termination. See State ex rel. Children, Youth & Families Dep\u2019t v. Joseph M., 2006-NMCA-029, \u00b6\u00b6 20, 22, 139 N.M. 137, 130 P.3d 198 (holding that there was insufficient evidence to support that CYFD made reasonable efforts to assist the father because CYFD never informed him that his relationship with the mother was a cause and condition of the abuse and neglect that could be a basis for termination). CYFD also made no attempt to reevaluate Father after he completed the recommended therapy sessions in order to assess his progress. In essence, CYFD halted its reunification efforts less than one year after taking custody of Child, then required Father to present evidence at trial that rebutted CYFD\u2019s presumption that he was unfit to parent Child.\n{58} We also agree with Father that CYFD fell short in its efforts, required under the ANA, to explore whether Father\u2019s relatives in Mexico would serve as suitable placement options for Child. Section 32A-4-25.1(D) provides that \u201c[i]f the court adopts a permanency plan other than reunification, the court shall determine whether [CYFD] has made reasonable efforts to identify and locate all grandparents and other relatives.\u201d In State ex rel. Children, Youth & Families Department v. Laura J., this Court \u201cemphasize[d] that Section 32A-4-25.1(D) imposes a duty upon the district court to make a serious inquiry into whether [CYFD] has complied with its mandate to locate, identify, and consider relatives with whom to place children in its custody.\u201d 2013-NMCA-057, \u00b6 61, 301 P.3d 860. We further stated:\nIn future cases, such inquiry will not be satisfied by a pro forma ratification of [CYFD\u2019s] assertions that such efforts have been made. . . . [I]n order to comply with the relatives search requirement of Section 32A-4-25.1(D), the court must conclude that [CYFD], through all of its available resources, has met its affirmative duty to \u201cidentify and locate . . . [and] conduct home studies on any appropriate relative expressing an interest in providing permanency for the child.\u201d Section 32A-4-25.1(D).\nLaura J., 2013-NMCA-057, \u00b6 61 (fifth and sixth alterations in original). The district court did not indicate such a conclusion in its findings of facts and conclusions of law, and we have difficulty concluding that Steckbauer\u2019s testimony consitutes evidence that her efforts to consider Father\u2019s Mexican relatives as potential placements for Child were reasonable. Steckbauer testified that Father\u2019s relatives in the United States suggested to her that their family members in Mexico could have been potential placement options for Child. She also testified that she spoke with the Consulate about the possibility of Father\u2019s family in Mexico being a foster care placement for Child, but she could not remember the time that discussion occurred or its outcome, and she never spoke to his mother and sister. When Father\u2019s counsel asked Steckbauer if she knew if Father\u2019s mother and sister were interested in being foster care placements, she responded that she said \u201cit would be explored, but [Father\u2019s mother and sister] haven\u2019t communicated through the Consulate or me any further to pursue that.\u201d However, because of her conversations with the Consulate, Steckbauer testified that she knew that mother and sister were willing to have Child in the home. We cannot conclude that this evidence is sufficient to survive the type of inquiry that we imposed in Laura J. to ensure that CYFD met its obligations under Section 32A-4-25.1(D).\n{59} In response to Father\u2019s arguments on appeal, CYFD points to its efforts to request the psychological evaluation and home study, obtain documentation of their completion, and translate the results. CYFD also argues that it sought the Consulate\u2019s assistance in using the Consulate\u2019s mail system to facilitate Father\u2019s communication with Child and that CYFD explored Father\u2019s relatives in the United States as possible placement options. Considering the totality of the circumstances, we do not agree with CYFD that these efforts met the minimum statutory requirements under the ANA. See Patricia H., 2002-NMCA-061, \u00b6 28 (\u201c[An appellate court\u2019s] job is not to determine whether CYFD did everything possible; our task is limited by our statutory scope of review to whether CYFD complied with the minimum required under law.\u201d). Father made efforts to comply with the services offered in Mexico as part of his treatment plan once he was free from the restrictions of his incarceration. In light of Father\u2019s efforts, we cannot attribute the resulting lack of evidence related to the causes and conditions ofneglectto Father. Cf. Hector C., 2008-NMCA-079, \u00b6 20 (holding that CYFD failed to present clear and convincing evidence that the causes and conditions of neglect were unlikely to change in the foreseeable future when the father complied with his treatment plan and CYFD failed to reevaluate the father following his release from prison). Additionally, Child had been in CYFD\u2019s custody for nine months at the time CYFD moved for termination, and CYFD ended its contact with Father less than twelve months after CYFD took custody of Child. This time period expired well before the fifteen-month period of time-limited reunification services established by ASF A. We acknowledge \u201cCYFD\u2019s duty to expeditiously handle [termination] cases,\u201d id., but its actions suggest that it did not properly assist Father in ameliorating the causes and conditions of Child\u2019s neglect. See Natural Mother, 1981-NMCA-103, \u00b6 14 (holding that the Human Services Department failed to make reasonable efforts and \u201cacted in bad faith\u201d when it disregarded the mother\u2019s efforts and rejected a favorable home study). We therefore conclude that substantial evidence of a clear and convincing nature did not exist to support the district court\u2019s finding that CYFD made reasonable efforts to assist Father in adjusting the causes and conditions that led to CYFD\u2019s custody of Child.\nD. Best Interests of Child\n{60} The ANA requires the district court to \u201cgive primary consideration to the physical, mental and emotional welfare and needs of the child, including the likelihood of the child being adopted if parental rights are terminated.\u201d Section 32A-4-28(A). It is well established, however, that adherence to this statutory principle \u201ccannot be done to the utter exclusion of consideration of the rights of a parent to raise [his or] her children.\u201d Natural Mother, 1981-NMCA-103, \u00b6 16. \u201c[I]n termination of parental rights proceedings, there is often a tension between the [child\u2019s needs] and the understanding that parental rights are among the most basic rights of our society and go to the very heart of our social structure.\u201d State ex rel. Children, Youth & Families Dep't v. Benjamin O., 2007-NMCA-070, \u00b6 34, 141 N.M. 692, 160 P.3d 601 (internal quotation marks and citation omitted).\n{61} Based on our review of the trial record, the district court found Father\u2019s acknowledgment of the language barrier between Father and Child highly persuasive in determining Child\u2019s need for permanency. The court explicitly stated in its written findings that \u201c[Father] acknowledged that he has not seen [Child] since December of 2012, and that [Child] would not recognize him. He also acknowledged that [Child] does not speak Spanish, that language would be a barrier, and that [Child] would have to get to know [Father] Tittle by little.\u2019\u201d In announcing its termination decision at the end of trial, the court explained that Father\u2019s testimony regarding the language barrier was \u201cvery telling, because his son wouldn\u2019t be able to communicate with him as a result of this break in their communication, literally.\u201d\n{62} We are unconvinced that, as a general rule, native language disparities between a natural parent and his or her infant child are insurmountable obstacles to reunification. We have serious reservations about the district court\u2019s reliance on this theory in light of the lack of evidence before the court in this case. There was no evidence presented by CYFD that Child, who was approximately eighteen months old at the time of trial and in the early stages of developing his language capabilities, possessed an inability to learn Spanish that fatally inhibited his reunification with Father. Steckbauer testified that it would be \u201charmful\u201d to return Child to Father because there had been no \u201cdirect communication\u201d between Father and Child. However, CYFD failed to present any evidence that Father\u2019s native language rendered him incapable of caring for Child. Moreover, the lack of evidence related to the home study impaired the court\u2019s knowledge of the adequacy of the home environment that would await Child in Mexico. The court did hear evidence that Child had resided in a stable foster home environment in the United States with his half-brother since CYFD took custody of Child, but \u201ca parent\u2019s rights may not be terminated simply because a child might be better off in a different environment.\u201d Joseph M., 2006-NMCA-029, \u00b6 16 (internal quotation marks and citation omitted). We therefore cannot agree that presumptions about Child\u2019s Spanish-speaking skills, given the young age of Child and the truncated time period of CYFD\u2019s reunification efforts, indicated an irreparable disintegration of the parent-child relationship that overwhelms all other considerations in this case.\n{63} We do not suggest that Child\u2019s best interest is to be reunited with Father in Mexico. We recognize that Child now resides in a foster home with his half-brother and Child\u2019s permanency needs are significant. However, CYFD\u2019s failure to comply with its statutory mandate to make reasonable efforts and carry its evidentiary burden of proof in this case improperly deprived Father of his rights. This Court has specified that a judgment terminating parental rights must be entered \u201conly with the utmost circumspection and caution\u201d due to the fundamental nature of those rights. Stella P., 1999-NMCA-100, \u00b6 33; see In re Termination of Parental Rights of Reuben & Elizabeth O., 1986-NMCA-031, \u00b6 36, 104 N.M. 644, 725 P.2d 844 (\u201cTermination of parental rights is not a matter to be lightly taken.\u201d). Upon remand of this case, \u201c[i]t is clear that the district court is in the best position to determine the present circumstances of [Child] and Father and to balance the emotional interests of [Child] and Father\u2019s rights.\u201d Lance K., 2009-NMCA-054, \u00b6 41.\nCONCLUSION\n{64} New Mexico law does not relieve CYFD of its statutory mandate to make reasonable efforts to assist the parent in adjusting the causes and conditions of neglect simply because the parent has been deported to another country. The ANA affirmatively places the burden on CYFD, not the parent, to prove by clear and convincing evidence that the parent is unlikely to alleviate the causes and conditions of neglect in the foreseeable future. In this case, CYFD moved to terminate Father\u2019s parental rights one month after his deportation and discontinued its communication with Father shortly thereafter. Additionally, CYFD failed to reevaluate Father\u2019s progress in ameliorating the causes and conditions of neglect, despite Father\u2019s efforts to comply with significant aspects of his treatment plan. Accordingly, we conclude that CYFD\u2019s subsequent presentation of incomplete evidence was not substantial evidence of a clear and convincing nature that justified termination of Father\u2019s parental rights under the ANA. The district court\u2019s termination for abandonment was likewise improper. We therefore reverse the district court\u2019s termination of Father\u2019s parental rights under Section 32A-4-28(B)(l) and Section 32A-4-28(B)(2), and we remand this case for further proceedings consistent with this opinion.\n{65} IT IS SO ORDERED.\nJAMES J. WECHSLER, Judge\nWE CONCUR:\nMICHAEL D. BUSTAMANTE, Judge\nLINDA M. VANZI, Judge\nFather argues on appeal with regard to CYFD\u2019s reasonable efforts that CYFD violated Article 37 of the Vienna Convention on Consular Relations (VCCR), April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, by failing to provide the Mexican Consulate timely notification of CYFD\u2019s custody of Child. The VCCR is a multilateral international treaty that regulates various consular activities between countries that are parties to the treaty. Sanchez-Llamas v. Oregon, 548 U.S. 331, 337-38 (2006). Father raises the issue of consular notification for the first time on appeal and thus did not properly preserve this argument in the district court proceedings below. See Rule 12-216(A) NMRA (\u201cTo preserve a question for review it must appear that a ruling or decision by the district court was fairly invokodf.]\u201d). In any event, our Supreme Court has determined that \u201cthe provisions of the VCCR do not create legally enforceable individual rights.\u201d State v. Martinez-Rodriguez, 2001-NMSC-029, \u00b6 15, 131 N.M. 47, 33 P.3d 267, abrogated on other grounds as recognized by State v. Forbes, 2005-NMSC-027, \u00b6 6, 138 N.M. 264, 119 P.3d 144. Therefore, Father does not have standing to enforce Article 37 of the VCCR. See Martinez-Rodriguez, 2001-NMSC-029, \u00b6 15.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Children, Youth & Families Department Charles E. Neelley, Chief Children\u2019s Court Attorney Kelly P. O\u2019Neill, Children\u2019s Court Attorney Albuquerque, NM for Appellee", "Law Offices of Nancy L. Simmons, P.C. Nancy L. Simmons Albuquerque, NM for Appellant", "Peter G. Tasso Law Firm, P.C. Peter G. Tasso Albuquerque, NM Guardian Ad Litem" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-021\nFiling Date: December 14, 2015\nDocket No. 33,896\nSTATE OF NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. ALFONSO M.-E., Respondent-Appellant, and IN THE MATTER OF URIAH F.-M., Child.\nChildren, Youth & Families Department Charles E. Neelley, Chief Children\u2019s Court Attorney Kelly P. O\u2019Neill, Children\u2019s Court Attorney Albuquerque, NM for Appellee\nLaw Offices of Nancy L. Simmons, P.C. Nancy L. Simmons Albuquerque, NM for Appellant\nPeter G. Tasso Law Firm, P.C. Peter G. Tasso Albuquerque, NM Guardian Ad Litem" }, "file_name": "0330-01", "first_page_order": 346, "last_page_order": 369 }