{ "id": 1561277, "name": "State of New Mexico, ex rel. Human Services Department, in the Matter of the Termination of the Parental Rights of Penny J., Respondent, with respect to Jess B. and Kenneth B., Children. STATE of New Mexico, Plaintiff-Appellee, v. PENNY J., Respondent-Appellant", "name_abbreviation": "State v. Penny J.", "decision_date": "1994-11-02", "docket_number": "No. 14944", "first_page": "328", "last_page": "334", "citations": [ { "type": "official", "cite": "119 N.M. 328" }, { "type": "parallel", "cite": "119 N.M. 328" } ], "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": "109 N.M. 472", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590341 ], "weight": 2, "pin_cites": [ { "page": "476-77" }, { "page": "703-04" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0472-01" ] }, { "cite": "240 Neb. 653", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 5237454 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/neb/240/0653-01" ] }, { "cite": "592 N.E.2d 1232", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11940490 ], "pin_cites": [ { "page": "1235" } ], "opinion_index": 0, "case_paths": [ "/ne2d/592/1232-01" ] }, { "cite": "458 U.S. 502", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 636660 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "513-14" }, { "page": "3238" } ], "opinion_index": 0, "case_paths": [ "/us/458/0502-01" ] }, { "cite": "161 Vt. 83", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 5777840 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/vt/161/0083-01" ] }, { "cite": "250 Mont. 164", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 2709327 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/mont/250/0164-01" ] }, { "cite": "856 P.2d 468", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10364981 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/p2d/856/0468-01" ] }, { "cite": "366 Pa.Super. 94", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 679791 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/pa-super/366/0094-01" ] }, { "cite": "511 Pa. 590", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1798682 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "890" } ], "opinion_index": 0, "case_paths": [ "/pa/511/0590-01" ] }, { "cite": "771 P.2d 981", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1989, "opinion_index": 0 }, { "cite": "108 N.M. 273", "category": "reporters:state", "reporter": "N.M.", "year": 1989, "opinion_index": 0 }, { "cite": "108 N.M. 332", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592896 ], "weight": 4, "pin_cites": [ { "page": "336" }, { "page": "370" }, { "page": "337" }, { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0332-01" ] }, { "cite": "25 Fam.L.Q. 253", "category": "journals:journal", "reporter": "Fam. 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Dec.", "year": 1990, "pin_cites": [ { "page": "99", "parenthetical": "due process and equal protection" } ], "opinion_index": 0 }, { "cite": "205 Ill.App.3d 543", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2568611 ], "year": 1990, "pin_cites": [ { "parenthetical": "due process and equal protection" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/205/0543-01" ] }, { "cite": "4 Cal.Rptr.2d 101", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "pin_cites": [ { "page": "106-07" } ], "opinion_index": 0 }, { "cite": "3 Cal.App.4th 212", "category": "reporters:state", "reporter": "Cal. App. 4th", "case_ids": [ 2307513 ], "opinion_index": 0, "case_paths": [ "/cal-app-4th/3/0212-01" ] }, { "cite": "106 N.M. 406", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 707522 ], "weight": 2, "pin_cites": [ { "page": "408-09" }, { "page": "183-84" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0406-01" ] }, { "cite": "106 N.M. 492", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708768 ], "weight": 2, "pin_cites": [ { "page": "496" }, { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0492-01" ] }, { "cite": "831 P.2d 989", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1992, "opinion_index": 0 }, { "cite": "113 N.M. 690", "category": "reporters:state", "reporter": "N.M.", "year": 1992, "opinion_index": 0 }, { "cite": "113 N.M. 691", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723268 ], "weight": 2, "pin_cites": [ { "page": "694" }, { "page": "993" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0691-01" ] }, { "cite": "122 L.Ed.2d 654", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "113 S.Ct. 1255", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1993, "opinion_index": 0 }, { "cite": "971 F.2d 1487", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10518744 ], "pin_cites": [ { "page": "1494" } ], "opinion_index": 0, "case_paths": [ "/f2d/971/1487-01" ] }, { "cite": "297 S.C. 118", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2175506 ], "weight": 2, "pin_cites": [ { "page": "925" } ], "opinion_index": 0, "case_paths": [ "/sc/297/0118-01" ] }, { "cite": "478 N.E.2d 1306", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "1313-14", "parenthetical": "due process and equal protection" } ], "opinion_index": 0 }, { "cite": "489 N.Y.S.2d 705", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "712-13", "parenthetical": "due process and equal protection" } ], "opinion_index": 0 }, { "cite": "65 N.Y.2d 39", "category": "reporters:state", "reporter": "N.Y.2d", "weight": 2, "year": 1985, "pin_cites": [ { "parenthetical": "due process and equal protection" } ], "opinion_index": 0 }, { "cite": "476 N.Y.S.2d 691", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1984, "pin_cites": [ { "page": "692" } ], "opinion_index": 0 }, { "cite": "101 A.D.2d 997", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3377662 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ad2d/101/0997-01" ] }, { "cite": "29 U.S.C. \u00a7 701", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "443 N.Y.S.2d 291", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1981, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "110 Misc.2d 1031", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 783086 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/misc2d/110/1031-01" ] }, { "cite": "440 N.Y.S.2d 806", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1980, "pin_cites": [ { "page": "808" } ], "opinion_index": 0 }, { "cite": "109 Misc.2d 699", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 779607 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/misc2d/109/0699-01" ] }, { "cite": "447 N.Y.S.2d 776", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1982, "pin_cites": [ { "page": "777", "parenthetical": "provisions inapplicable to termination of parental rights" } ], "opinion_index": 0 }, { "cite": "86 A.D.2d 748", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 5596017, 5598027, 5607926, 5609454 ], "year": 1982, "pin_cites": [ { "parenthetical": "provisions inapplicable to termination of parental rights" } ], "opinion_index": 0, "case_paths": [ "/ad2d/86/0748-02", "/ad2d/86/0748-01", "/ad2d/86/0748-03", "/ad2d/86/0748-04" ] }, { "cite": "29 U.S.C. \u00a7 794", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "22 N.M.L.Rev. 13", "category": "journals:journal", "reporter": "N.M. 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Rev.", "year": 1992, "pin_cites": [ { "page": "99" } ], "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 12132", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "pin_cites": [ { "parenthetical": "Supp. II 1990" } ], "opinion_index": 0 }, { "cite": "104 N.M. 644", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594890 ], "weight": 6, "pin_cites": [ { "page": "647" }, { "page": "847" }, { "page": "647-48" }, { "page": "847-48" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0644-01" ] } ], "analysis": { "cardinality": 1236, "char_count": 24431, "ocr_confidence": 0.73, "pagerank": { "raw": 8.718523263442023e-08, "percentile": 0.4936718318326667 }, "sha256": "15de3a0b1e66f0bdfd18a0f6aa09cee3cf080059d880c88460b8b4f71e149436", "simhash": "1:b1aafebb3a86a7ca", "word_count": 3860 }, "last_updated": "2023-07-14T22:42:52.429175+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MINZNER, C.J., and BOSSON, J., concur." ], "parties": [ "State of New Mexico, ex rel. Human Services Department, in the Matter of the Termination of the Parental Rights of Penny J., Respondent, with respect to Jess B. and Kenneth B., Children. STATE of New Mexico, Plaintiff-Appellee, v. PENNY J., Respondent-Appellant." ], "opinions": [ { "text": "OPINION\nBLACK, Judge.\nAppellant Penny J. is a parent who has been diagnosed as having borderline personality disorder and borderline intellectual function resulting from cognitive difficulties, neurological soft signs, and seizure activity. The New Mexico Children, Youth and Families Department (\u201cthe Department\u201d) worked with Appellant over a five-year period as a result of repeated reports that Appellant was abusing and neglecting her children. In 1992, the Department moved to terminate Appellant\u2019s parental rights. The district court, children\u2019s court division, determined that the Department had expended reasonable efforts to assist Appellant in properly caring for her children, but that there was no reason to believe Appellant would be able to parent the children in a safe manner in the foreseeable future. Based on these findings, the district court ordered termination of Appellant\u2019s parental rights. Appellant argues that the Department improperly evaluated her disabilities and afforded her inappropriate treatment in violation of federal and state law. We disagree, and affirm.\nI. STANDARD OF REVIEW\nOn appeal from termination of parental rights, we are to view the evidence in the light most favorable to support the findings of the trial court. Reuben & Elizabeth O. v. Department of Human Servs., 104 N.M. 644, 647, 725 P.2d 844, 847 (Ct.App.), cert. denied (Apr. 24, 1986). The standard of review is whether the grounds relied upon by the district court in terminating parental rights have been proven by clear and convincing evidence. Id. at 647-48, 725 P.2d at 847-48.\nII. FACTS\nThe Department first became involved with Appellant and father, Robert B., and their children, Danny B. and Jess B., in 1986, due to the chronic neglect of their children. At that time, the children were taken into custody by the Department. Before the children were returned home eighteen months later, the Department provided services to the parents to assist them in addressing the conditions leading to the abuse and neglect. These services included a support group, in-home homemaker services to assist them in learning parenting and basic housekeeping skills, individual counseling and a literacy program for Appellant, and a parent-child participation program.\nIn 1987, the Department received reports that Jess B. was being physically abused. Custody of Appellant\u2019s children was again returned to the Department. Appellant agreed to plead no contest to a substantiated charge of abuse and neglect with respect to her children. Her two children (Kenneth B. was in \u00fatero when this action occurred) were ordered to remain in the physical and legal custody of the Department.\nIn February 1988, the Department assessed Appellant\u2019s situation to determine which services she should receive before being permitted to have the children returned to her care. Charlene Mclver, a Ph.D. psychologist, diagnosed Appellant as having a borderline personality disorder and indicated that Appellant was not capable of \u201cparenting these children at this time.\u201d Accordingly, the Department developed a treatment plan that included day treatment services at the Recreation, Health, and Occupation Center\u2019s literacy program and a preschool program for Appellant, and in-home nursing care for newborn Kenneth B. The purpose of these services was to allow the parent to utilize the two years of training previously provided to develop appropriate parenting skills. The treatment plan went into effect after the next mandatory judicial review in May 1988. On December 8, 1988, the judicial review established a new treatment plan extending Appellant\u2019s participation in the literacy program, providing individual therapy for Appellant, requiring participation by both parents in the \u201cHands On\u201d parenting program, and continuing day care and other in-home services for Kenneth B.\nTermination of visitation with Jess B. was incorporated into the July 1989 treatment plan based on Dr. Cardillo\u2019s findings regarding \u201cPenny\u2019s poor stress coping abilities\u201d and her denial of \u201cpersonal responsibility or awareness of her participation in Jess\u2019s removal from the home environment.\u201d On November 5,1989, Kenneth B. was placed in the custody of the Department due to substantiated reports of physical abuse and medical neglect by Appellant. An adjudicatory hearing occurred with respect to Kenneth B. on February 9, 1990, and Appellant and Robert B. entered another no contest plea concerning the allegations of neglect. Meanwhile, the Department\u2019s plan of action indicated that it intended to terminate Appellant\u2019s parental rights with respect to Daniel B., Jess B., and Susan B.\nThe January 1990 judicial review incorporated a report that Appellant had not been participating in individual therapy since September 1989, and that the Department was exploring alternative therapy. However, the treatment plan proposed and approved at that time required her to participate in individual therapy.\nAt the judicial reviews occurring between June 1990 and February 1991, it was reported that Appellant: (1) had voluntarily left New Mexico in February 1990, and had resided at the Rescue Mission in El Paso, Texas for approximately four months; (2) did not visit with Kenneth B. on fourteen of twenty-five scheduled visitations; and (3) continued to be \u201cunwilling\u201d to participate with the treatment plan\u2019s objectives and was not able to secure either employment or stable housing.\nThe May 1991 judicial review indicated that Appellant was evaluated by Dr. Geoffrey Sutton. Dr. Sutton diagnosed her as having a \u201cborderline intellectual function\u201d and a \u201cborderline range of intelligence.\u201d By October 1991, the Department had engaged the services of Toni Fine, a master\u2019s level therapist, who focused on increasing Appellant\u2019s independent living and life management skills. Additionally, a social worker, George Oiler, provided weekly one-on-one parenting training. However, the therapeutic preschool program was discontinued because Appellant had made \u201cminimal progress\u201d and did not show the therapist an \u201cability to parent at that time[.]\u201d\nThe Department finally filed a termination action on May 29, 1992. Toni Fine testified that Appellant was not \u201con par\u201d with others in the parent community because of \u201cher judgment abilities, her possible processing abilities, [and] the way there is no anticipation of possible consequences [of actions.]\u201d Because parenting involves judgment, Fine reasoned that Appellant would not be able to take the \u201c[parenting] reins alone\u201d and would not have the ability to parent \u201ctoday.\u201d Appellant\u2019s expert, George Oiler, echoed Fine\u2019s testimony on that issue. Oiler acknowledged that he saw \u201cgrowth\u201d in Appellant\u2019s parenting skills, but could not make \u201csome broad sweeping statement that ... within six months she would be able to parent [full-time].\u201d\nIII. FEDERAL LAW\nA. The Americans with Disabilities Act\nAppellant argues that Title II of the Americans with Disabilities Act (\u201cADA\u201d), 42 U.S.C. \u00a7 12132 (Supp. II 1990), requires the Department to provide services \u201cfrom which she could gain the same benefits as other respondents without identified disabilities.\u201d We disagree.\nAlthough enacted in 1990, the ADA was phased in gradually, meaning that different provisions became effective at different dates. Counsel for Appellant and amicus rely upon the nondiscrimination provision in 42 U.S.C. \u00a7 12132, which provides, \u201cno qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.\u201d Id. This provision did not, however, take effect until January 1992. See Bonnie P. Tucker, The Americans with Disabilities Act of 1990: An Overview, 22 N.M.L.Rev. 13, 99 (1992). Furthermore, Appellant concedes that the Department, through Toni Fine and Gregory Oiler, provided her with appropriate individual training and counseling in 1991. Thus, Appellant\u2019s premise that she was discriminated against in violation of this provision of the ADA must fail.\nB. The Rehabilitation Act\nAppellant also argues that Section 504 of the Rehabilitation Act of 1973 (\u201cthe Act\u201d), 29 U.S.C. \u00a7 794 (1988 & Supp. IV 1992), preempts state law and required the Department to provide services to Appellant \u201cthat were as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others.\u201d As the title of the Act indicates, however, it was not designed primarily to apply to parental termination issues. In re Robert S.T., 86 A.D.2d 748, 447 N.Y.S.2d 776, 777 (1982) (provisions inapplicable to termination of parental rights). One division of the New York family court, in a case relied upon by Appellant, originally found that the Act applied and preempted the termination of handicapped persons\u2019 parental rights. In re Roth, 109 Misc.2d 699, 440 N.Y.S.2d 806, 808 (1980). That position was almost immediately rejected by other divisions of the same court. As one judge said in In re Richard M., 110 Misc.2d 1031, 443 N.Y.S.2d 291, 294 (1981):\nA review of the legislative intent and, indeed, of the statutory language itself, makes it clear that the scope of federal concern was access by handicapped persons to educational, social, and vocational services that would assure them of \u201cvocational rehabilitation and independent living.\u201d 29 U.S.C. \u00a7 701. The emphasis of the law and regulations is on non-discrimination in employment and education. To restrict the analysis of federal statutes to the Rehabilitation Act is to ignore more relevant Congressional enactments such as the Adoption Assistance and Child Welfare Act of 1980, P.L. 96-272. That law, with its creation of a new subdivision E (Federal Payments for Foster Care & Adoption Assistance) of Title IV of the Social Security Act, is more closely analogous to SSL 384-b, in its concerns for balancing the rights of children in foster care and then-natural parents\u2019 rights. This court does not consider either the state\u2019s Social Services Law or the federal Adoption Assistance Act in conflict with the Rehabilitation Act. The concerns, programs, and standards are distinct, the chief difference being the latter\u2019s emphasis on the handicapped individual\u2019s self-sufficiency in contrast to the needs of children in foster care for permanent homes, whether with their biological or adoptive parents. Respondent\u2019s constitutional [Supremacy Clause] challenge is therefore rejected in its entirety.\nThe New York appellate courts have also held that the Act is inapplicable and does not preempt state termination of parental rights when the parent is presently and for the foreseeable future unable, by reason of mental limitations, to create proper and adequate care for the child. In re Christopher T., 101 A.D.2d 997, 476 N.Y.S.2d 691, 692 (1984), aff'd sub nom. In re Joyce T., 65 N.Y.2d 39, 489 N.Y.S.2d 705, 478 N.E.2d 1306 (1985); see also South Carolina Dep\u2019t of Social Servs. v. Humphreys, 297 S.C. 118, 374 S.E.2d 922, 925 (Ct.App.1988). Nor does the federal precedent interpreting this provision require the state to create special or individualized programs specifically for mentally handicapped individuals. Johnson v. Thompson, 971 F.2d 1487, 1494 (10th Cir.1992), cert. denied, \u2014 U.S. -, 113 S.Ct. 1255, 122 L.Ed.2d 654 (1993).\nC. Equal Protection\nAppellant next argues that since \u201cthe State failed to provide services to Penny which afforded her equal opportunity to achieve the same result as other respondents, it clearly violated the equal protection and due process clauses of the United States and New Mexico Constitutions.\u201d Appellant fails to direct us to where these arguments were advanced below. See In re Estate of Heeter, 113 N.M. 691, 694, 831 P.2d 990, 993 (Ct.App.) (this Court will not \u201csearch the record\u201d), cert. denied, 113 N.M. 690, 831 P.2d 989 (1992). Where the record fails to indicate that an argument was presented below, unless it is jurisdictional in nature, the argument will not be considered on appeal. Woolwine v. Furr\u2019s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct.App.1987). Moreover, such arguments have been rejected previously in New Mexico, In re Jason Y., 106 N.M. 406, 408-09, 744 P.2d 181, 183-84 (Ct.App.1987), and elsewhere. See In re Jennilee T., 3 Cal.App.4th 212, 4 Cal.Rptr.2d 101, 106-07 (Ct.App.) (due process), review denied, No. S025539, 1992 Cal. LEXIS 2466 (Cal. May 14, 1992); In re I.D., 205 Ill.App.3d 543, 151 Ill.Dec. 94, 99, 563 N.E.2d 1200, 1205 (1990) (due process and equal protection); In re Joyce T., 65 N.Y.2d 39, 489 N.Y.S.2d 705, 712-13, 478 N.E.2d 1306, 1313-14 (1985) (due process and equal protection); In re Montgomery, 311 N.C. 101, 316 S.E.2d 246, 255 (1984) (due process and equal protection); State Dep\u2019t of Human Servs. v. Smith, 785 S.W.2d 336, 339 (Tenn.1990) (due process). Since we find no controlling federal law which mandates reversal, we next examine whether the district court decision was in compliance with New Mexico law.\nIV. NEW MEXICO LAW\nThe grounds for termination of parental rights in New Mexico are now codified in NMSA 1978, Section 32A-4-28 (Repl.Pamp.1993). Section A of that statute sets forth the polestar in any such proceeding; the directive that \u201cthe court shall give primary consideration to the physical, mental and emotional welfare and needs of the child.\u201d Section 32A-4-28(A). \u201c \u2018Primary consideration\u2019 means consideration that stands first in rank, importance or value, fundamental in nature.\u201d In re Adoption of Doe, 99 N.M. 278, 281, 657 P.2d 134, 137 (Ct.App.1982), cert. denied, 99 N.M. 358, 658 P.2d 433 (1983). Section B of the statute sets forth the specific grounds for termination. The present termination proceeding was initiated under Section 32A-4-28(B)(2), which provides:\nThe court shall terminate parental rights with respect to a child when:\n(2) the child has been a neglected or abused child as defined in the Abuse and Neglect Act [this article] 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 which render the parent unable to properly care for the child; provided, the court may find in some cases that efforts by the department or another agency would be unnecessary, when there is a clear showing that the efforts would be futile[.]\nThe district court found that the children were repeatedly abused and neglected. Under NMSA 1978, Section 32A-4-2(C)(4) (Repl.Pamp.1993), a child is neglected \u201cwhose parent, guardian or custodian is unable to discharge his responsibilities to and for the child because of incarceration, hospitalization or other physical or mental disorder or incapacity[.]\u201d This statute \u201cgives notice that a child is neglected if the parents lack the mental capacity to provide the care or control necessary for the child\u2019s well-being.\u201d State ex rel. Health & Social Servs. Dep\u2019t v. Natural Father, 93 N.M. 222, 225, 598 P.2d 1182, 1185 (Ct.App.1979). Appellant\u2019s inability to learn to provide the care or control necessary for her children\u2019s well-being is clear and convincing evidence of neglect. See NMSA 1978, \u00a7 32A-4-29(J) (Repl.Pamp.1993) (establishing clear and convincing evidence standard).\nThe district court also found that \u201cthe Department and other agencies have made reasonable efforts over an extended period of time to assist the respondents [Penny J. and Robert B.] in changing the causes and conditions which led to the abuse and neglect of the children.\u201d It is clear that there must be some evidence of an effort by the Department to assist the parent in caring for the child or at least a showing that such effort would have been futile. Section 32A-4-28(B)(2); see In re J.J.B., 117 N.M. 31, 37, 868 P.2d 1256, 1262 (Ct.App.1993), cert. granted, 117 N.M. 121, 869 P.2d 820 (1994).\nIn In re Wayne R.N., 107 N.M. 341, 757 P.2d 1333 (Ct.App.1988), this Court found \u201creasonable efforts\u201d based on the following facts:\nThe efforts made by the department to remedy the causes of the neglect showed the department\u2019s efforts included the assistance of two social workers and a trained homemaker. Respondents\u2019 caseworker provided considerable assistance in the form of financial assistance and assistance with transportation. She also counseled them to some extent. The trained homemaker made over thirty-five visits to the home, in an effort to teach respondents minimum standards of homemaking and sanitation. These efforts were made over a three-year period and were augmented by the efforts of other agencies, which provided counseling concerning substance abuse. The trial court\u2019s finding that the department made reasonable efforts to assist respondents is also supported by substantial evidence. See In re Termination of Parental Rights of Reuben & Elizabeth O., 104 N.M. 644, 725 P.2d 844 (Ct.App.1986); In re Adoption of Doe; \u00a7 32-1-54(B)(3).\nIn re Wayne R.N., 107 N.M. at 345, 757 P.2d at 1337.\nWe recognize that there are differences between the circumstances of the respondents in In re Wayne R.N. and those of Appellant. We also recognize that \u201c[e]fforts generally need to be made by courts to eliminate judgments based on stereotyped values in all cases terminating parental rights____ Courts particularly need to be sensitive to this issue because a court\u2019s decision is based on evidence gathered by another.\u201d Rosemary Shaw Sackett, Terminating Parental Rights of the Handicapped, 25 Fam.L.Q. 253, 272 (1991). A parent may challenge evidence of neglect on the basis that it arises from stereotypes. A parent may also impeach the reasonableness of efforts to enable him or her to correct the underlying causes and conditions on the basis that those efforts were directed at the wrong causes and conditions or were insufficient because of unique factors. The fact-finder should evaluate the evidence in light of express challenges, as well as implicit weaknesses in the case' presented by the State. Once the fact-finder has evaluated the evidence presented by the State, however, an \u201cappellate court\u2019s primary task is to determine if the decision reached at trial is justifiable on the facts and the law.\u201d In re R.W., 108 N.M. 332, 336, 772 P.2d 366, 370 (Ct.App.), cert. denied, 108 N.M. 273, 771 P.2d 981 (1989). In this regard it is highly relevant that in this case Appellant herself requested a finding that the Department\u2019s efforts were reasonable.\nWhile the Department\u2019s effort in the present case did not achieve the desired result, it offered numerous and various treatment modalities recommended by trained professionals. Four independent professionals evaluated Appellant, not only to monitor her progress, but also to recommend different therapies. There were fifteen judicial reviews of Appellant\u2019s therapy over a five-year period. At each court proceeding, Appellant\u2019s counsel indicated assent to the proposed treatment plan.\nThe Supreme Court of Pennsylvania recognized the limits of an agency duty in such a situation.\nAs aptly stated by Judge Catania, \u201c[Tjhe parent cannot sit back, especially in factual situations like the one presently before the Court involving the mental incapacity of the parent, and expect the agency to effect a \u2018cure\u2019 for the individual and then when such \u2018a cure\u2019 is not forthcoming, blame the agency for the failure.\u201d (Slip opinion at p. 15).\nIn re Adoption of J.J., 511 Pa. 590, 515 A.2d 883, 890 (1986), on remand, 366 Pa.Super. 94, 530 A.2d 908 (1987). We hold that there was sufficient evidence of reasonable efforts to support a finding by clear and convincing evidence. In re Wayne R.N., 107 N.M. at 345, 757 P.2d at 1337. Precedent from other jurisdictions on analogous facts supports the holding as well. See, e.g., K.N. v. State, 856 P.2d 468 (Alaska 1993); In re R.H., 250 Mont. 164, 819 P.2d 152 (1991); In re H.S., 161 Vt. 83, 632 A.2d 1106 (1993); see generally Saekett, supra, at 265 (discussing cases in which parental rights have been terminated).\nThere is also evidence to support the district court\u2019s finding that the conditions and causes of the neglect and abuse were unlikely to change in the foreseeable future. For example, no one testified that Appellant would be able to parent effectively at any foreseeable date. Furthermore, there was substantial testimony that Appellant was unlikely ever to develop the ability to parent these three children effectively. More importantly, as the guardian ad litem states, two of these children have been subjected to what is now more than seven years of uncertainty, and the evidence is clear that their best interests would be served by adoption. \u201cThere is little that can be as detrimental to a child\u2019s sound development as uncertainty over whether he is to remain in his current \u2018home,\u2019 under the care of his parents or foster parents, especially when such uncertainty is prolonged.\u201d Lehman v. Lycoming County Children\u2019s Servs. Agency, 458 U.S. 502, 513-14, 102 S.Ct. 3231, 3238, 73 L.Ed.2d 928 (1982). The court is justified, then, in terminating parental rights where it is clear after several years of effort that the child will not thrive, and the causes of neglect and abuse are unlikely to change in the foreseeable future. In re R.W., 108 N.M. at 337, 772 P.2d at 371; see Egly v. Blackford County Dep\u2019t of Public Welfare, 592 N.E.2d 1232, 1235 (Ind.1992); In re D.A.B., 240 Neb. 653, 483 N.W.2d 550, 553 (1992).\nV. CONCLUSION\nIn conclusion, the district court\u2019s findings are supported by clear and convincing evidence when viewed through the lens of the best interests of the child. Nothing in the applicable federal or state law requires either more or earlier individual treatment than that provided to Appellant.\nThe decision of the district court, children\u2019s court division, is affirmed.\nIT IS SO ORDERED.\nMINZNER, C.J., and BOSSON, J., concur.\n. This Court previously affirmed the decision of the children\u2019s court terminating the parental rights of Robert B.\n. Prior to arriving in New Mexico, the exhibits indicate that Robert B. and Appellant had been investigated for child neglect and abuse in California, Nevada, and Arizona.\n. We do not decide, then, the meaning of this federal concept of discrimination and its applicability to programs afforded Appellant by the Department. This statute presents novel and thorny challenges to the Department which hopefully will be seen as a fertile opportunity for new and creative approaches, so that physically and mentally challenged persons may participate effectively and have a chance truly to benefit from state services like parenting assistance. It may well be, as Appellant argues, that the Department must do a great deal more in adjusting its programs to make them more meaningfully accessible to the handicapped.\n. Although many of the actions that form the basis of this dispute occurred before the effective date of the new Children's Code, July 1, 1993, the parties refer to the new Children\u2019s Code in their briefs. Due to the fact that the parties are content to rely on the new Children's Code, and the fact that the relevant provisions have not changed significantly, we also cite to the new Children's Code.\n. The statute does not compel even \"reasonable efforts\u201d when it becomes clear that preserving the family is not compatible with protecting the child and that further efforts to assist the parent would be futile. In re Kenny F., 109 N.M. 472, 476-77, 786 P.2d 699, 703-04 (Ct.App.1990).", "type": "majority", "author": "BLACK, Judge." } ], "attorneys": [ "Tom Udall, Atty. Gen., Donna L. Dagnall, Gen. Counsel, Diane Garrity, Sp. Asst. Atty. Gen., Angela Adams, Chief Children\u2019s Court Atty., Peter Klages, Children\u2019s Court Atty., Santa Fe, for petitioner-appellee.", "Johnnette Shane, Albuquerque, for respondent-appellant.", "Jeffrey Kauffman, Albuquerque, Guardian Ad Litem, for Jess B. and Kenneth B.", "Laurie A. Knight, Albuquerque, for amicus curiae Protection and Advocacy System." ], "corrections": "", "head_matter": "119 N.M. 328\nState of New Mexico, ex rel. Human Services Department, in the Matter of the Termination of the Parental Rights of Penny J., Respondent, with respect to Jess B. and Kenneth B., Children. STATE of New Mexico, Plaintiff-Appellee, v. PENNY J., Respondent-Appellant.\nNo. 14944.\nCourt of Appeals of New Mexico.\nNov. 2, 1994.\nTom Udall, Atty. Gen., Donna L. Dagnall, Gen. Counsel, Diane Garrity, Sp. Asst. Atty. Gen., Angela Adams, Chief Children\u2019s Court Atty., Peter Klages, Children\u2019s Court Atty., Santa Fe, for petitioner-appellee.\nJohnnette Shane, Albuquerque, for respondent-appellant.\nJeffrey Kauffman, Albuquerque, Guardian Ad Litem, for Jess B. and Kenneth B.\nLaurie A. Knight, Albuquerque, for amicus curiae Protection and Advocacy System." }, "file_name": "0328-01", "first_page_order": 420, "last_page_order": 426 }