{ "id": 4242326, "name": "STATE of NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. JEREMY N., Respondent-Appellant, and In the Matter of Bryce N., a Child", "name_abbreviation": "State ex rel. Children, Youth & Families Department v. Jeremy N.", "decision_date": "2008-06-27", "docket_number": "No. 27,397", "first_page": "198", "last_page": "204", "citations": [ { "type": "official", "cite": "145 N.M. 198" }, { "type": "parallel", "cite": "195 P.3d 365" }, { "type": "parallel", "cite": "2008-NMCA-145" } ], "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": "1997-NMCA-104", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 17373 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 17" }, { "parenthetical": "citations, internal quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0111-01" ] }, { "cite": "1998-NMCA-119", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834215 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/125/0597-01" ] }, { "cite": "100 N.M. 227", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588687 ], "weight": 2, "pin_cites": [ { "page": "236" }, { "page": "1113" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0227-01" ] }, { "cite": "424 U.S. 319", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12026449 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/424/0319-01" ] }, { "cite": "2004-NMCA-083", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224600 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 36-37" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0053-01" ] }, { "cite": "2007-NMCA-163", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3783824 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0075-01" ] }, { "cite": "2001-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352276 ], "weight": 3, "pin_cites": [ { "page": "\u00b65" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0368-01" ] } ], "analysis": { "cardinality": 704, "char_count": 17271, "ocr_confidence": 0.694, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.3558108986276806 }, "sha256": "cc3589fc969b48817b1959ece6786c5cd79d25be951009117b40c30a54aa8a8c", "simhash": "1:b3c86535ee9fce55", "word_count": 2796 }, "last_updated": "2023-07-14T14:53:47.998828+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: CYNTHIA A. FRY and CELIA FOY CASTILLO, Judges." ], "parties": [ "STATE of NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. JEREMY N., Respondent-Appellant, and In the Matter of Bryce N., a Child." ], "opinions": [ { "text": "OPINION\nVIGIL, Judge.\n{1} This appeal arises out of an abuse and neglect petition filed by the Children, Youth and Families Department (Department) against Father and Mother. At the adjudicatory hearing, Mother\u2019s motion for a directed verdict was granted over Father\u2019s objection. The district court entered its judgment that Father abused child, and Father appeals, challenging only the directed verdict granted in Mother\u2019s favor. As we discuss more fully, Mother\u2019s motion was not, strictly speaking, a motion for directed verdict. Nevertheless, the district court order determined that the Department failed to produce sufficient evidence to proceed against Mother on the allegations contained in the petition. We affirm.\nPROCEDURAL BACKGROUND\n{2} The petition filed by the Department alleged that Father \u201ccaused the injuries\u201d to Child, consisting of \u201ca lacerated liver and other injuries, including an apparent clavical [sic] fracture and a posterior rib fracture, consistent with child abuse.\u201d See NMSA 1978, \u00a7 32A-4-2(B)(2) (1999) (including in the definition of an \u201cabused child\u201d a child \u201cwho has suffered physical abuse, emotional abuse or psychological abuse inflicted or caused by the child\u2019s parent, guardian or custodian\u201d) (internal quotation marks omitted). The petition further alleged that Father subjected Child to aggravated circumstances of child abuse in that he \u201ccaused the injuries\u201d of \u201cblunt trauma to the abdomen\u201d of Child\u2019s twin brother, which resulted in the twin brother\u2019s death See \u00a7 32A-^L-2(C)(1) (defining \u201caggravated circumstances\u201d to include \u201cthose circumstances in which the parent, guardian or custodian has[] attempted, conspired to cause or caused great bodily harm to the child or great bodily harm or death to the child\u2019s sibling\u201d) (internal quotation marks omitted). The allegation made against Mother by the petition was that Mother neglected Child in that she \u201cdid not take reasonable steps\u201d to ensure Child was protected, nor was she \u201ccapable of ensuring [Child\u2019s] safety and well being at this time.\u201d See \u00a7 32A-4-2(E)(3) (stating that a \u201cneglected child\u201d is a child \u201cwho has been physically or sexually abused, when the child\u2019s parent, guardian or custodian knew or should have known of the abuse and failed to take reasonable steps to protect the child from further harm\u201d) (internal quotation marks omitted).\n{3} At the adjudicatory hearing, Father and Mother were represented by separate counsel. The Department first attempted to change Mother\u2019s status from respondent to intervenor, but Father objected, and the district court denied the motion as untimely. After the Department completed presenting its evidence and rested, Mother moved for a directed verdict in her favor. The Department conceded that it was unable to present sufficient evidence to substantiate the allegations against Mother, and agreed that the case against Mother should be dismissed. Father objected, arguing that the motion should not be granted before he presented his evidence, that much of his evidence was inculpatory as to Mother, and that granting the motion would deprive him of the opportunity to present evidence against her. The district court nevertheless concluded, \u201cthere is insufficient evidence to proceed on the matter against [Mother],\u201d Mother\u2019s motion was granted, and Mother was dismissed from the case. The district court then recessed, and the hearing resumed two weeks later.\n{4} At the continuation of the adjudication hearing, Father offered four witnesses: his sister, his father, Mother\u2019s former best friend, and a police officer, who had interviewed Father and Mother. Father also indicated that he might call Mother as a witness, but he did not subpoena her, and he never did call her as a witness. At the conclusion of the hearing, Father was adjudicated to have abused and neglected Child, but the allegation that Father caused the death of Child\u2019s twin brother as an aggravated circumstance was dismissed. See NMSA 1978, \u00a7 32A-4-20(G) (2005) (\u201cIf the petition alleges that the parent, guardian or custodian has subjected the child to aggravated circumstances, then the court shall also make and record its findings on whether the aggravated circumstances have been proven.\u201d).\nDISCUSSION\n{5} Father does not appeal the adjudication against him. Instead, he appeals only the district court order granting Mother\u2019s motion for a directed verdict. The Department contends that Father has no standing to contest the order granting Mother\u2019s motion. \u201cThe determination of whether a party has standing to sue is a question of law, which we review de novo.\u201d Forest Guardians v. Powell, 2001-NMCA-028, \u00b65, 130 N.M. 368, 24 P.3d 803. The first element which must be satisfied before standing is present is an injury. Id. \u00b6 16. We conclude that Father has failed to demonstrate an injury sufficient to confer standing to contest Mother\u2019s motion for a directed verdict, and we therefore affirm.\n{6} Abuse and neglect proceedings are brought on behalf of children by the State through the Department. See State ex rel. Children, Youth & Families Dep\u2019t v. Michael T., 2007-NMCA-163, \u00b6 11, 143 N.M. 75, 172 P.3d 1287. The Department is the only entity authorized to file a petition of abuse or neglect. See NMSA 1978, \u00a7 32A-4-4(A), (D) (2005) (stating that upon a report of abuse or neglect, the Department is responsible for \u201cconduct[ing] an investigation to determine the best interests of the child\u201d); NMSA 1978, \u00a7 32A-4-15 (1993) (\u201cA petition alleging neglect or abuse shall not be filed unless the children\u2019s court attorney has determined and endorsed upon the petition that the filing of the petition is in the best interests of the child.\u201d). Father has no authority to initiate and prosecute an abuse and neglect petition, and he has no right to file a cross-claim against Mother in response to a petition filed by the Department. Stated another way, Father has no right to compel the initiation or continuation of an abuse and neglect case.\n{7} We agree with the Department that the directed verdict for Mother was against the Department, and that it was based on a finding that the Department failed to present clear and convincing evidence in support of its allegation that Mother failed to protect Child. The Department is the only party against whom the directed verdict was entered, and Father cannot demonstrate he has suffered the requisite injury to acquire standing to assert on appeal that the directed verdict was erroneous. Nevertheless, Father attempts to persuade us he has suffered the requisite injury to confer standing for three different reasons.\n{8} First, Father argues that Section 32A-4-20(G) was violated by granting Mother\u2019s directed verdict before Father was able to present evidence, which was potentially \u201cinculpatory\u201d as to Mother. Father asserts that the \u201cinculpatory\u201d evidence was to the effect that Mother, not Father, abused Child. Section 32A-4-20(G) of the Children\u2019s Code provides:\nThe court shall determine if the allegations of the petition are admitted or denied. If the allegations are denied, the court shall proceed to hear evidence on the petition. The court, after hearing all of the evidence bearing on the allegations of neglect or abuse, shall make and record its findings on whether the child is a neglected child, an abused child or both.\nFather asserts that this statute does not limit the district court to considering only the evidence that the Department presents, and that by granting Mother\u2019s motion for a directed verdict before all the evidence, including Father\u2019s, was presented, the district court did not consider \u201call\u201d the evidence. Father further asserts that the \u201cbest interests of the child\u201d fell to \u201csecond place\u201d when Mother was granted the directed verdict before Father presented his evidence in contravention of the statutory mandate that under the Children\u2019s Code, \u201c[t]he child\u2019s health and safety shall be the paramount concern.\u201d NMSA 1978, \u00a7 32A-1-3(A) (1999).\n{9} We disagree with Father\u2019s reading of Section 32A-4-20(G). The petition made an allegation of neglect or abuse against Father and it made a separate allegation against Mother. The allegation against Father was that he physically abused Child. Separately and distinctly, the allegation against Mother was that she neglected Child in that she failed to protect Child from Father\u2019s abuse. The question raised before the district court by Mother\u2019s motion for a directed verdict was whether the Department presented clear and convincing evidence that Mother knew or should have known about Father\u2019s abuse and failed to take reasonable steps to protect Child. See \u00a7 32A-4-2(E)(3) (stating that a \u201cneglected child\u201d is a child \u201cwho has been physically or sexually abused, when the child\u2019s parent, guardian or custodian knew or should have known of the abuse and failed to take reasonable steps to protect the child from further harm\u201d) (internal quotation marks omitted). Father\u2019s \u201cinculpatory\u201d evidence that Mother, rather than Father, allegedly abused Child neither proves nor disproves the allegation made against Mother. We therefore reject Father\u2019s argument that Section 32A-4-20(G) was violated.\n{10} We also reject Father\u2019s argument that the \u201cbest interests of the child\u201d fell to \u201csecond place.\u201d Again, Father\u2019s argument is based on the contention that he intended to present evidence inculpatory to Mother as to the injuries inflicted on Child. As we have stated, the allegation against Mother was based on neglect, and the evidence that Father was to offer against Mother does not relate to the allegation of neglect. Accordingly, Father\u2019s argument fails.\n{11} Second, Father attempts to demonstrate standing by arguing that entry of the directed verdict in Mother\u2019s favor resulted in a violation of his procedural due process rights. To be sure, a parent is entitled to procedural due process in abuse and neglect proceedings, and in determining whether procedural due process was violated, our review is de novo. See State ex rel. Children, Youth & Families Dep\u2019t v. Maria C., 2004-NMCA-083, \u00b6\u00b6 36-37, 136 N.M. 53, 94 P.3d 796 (recognizing that a parent is entitled to due process in abuse and neglect proceedings under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and that a de novo standard of review is employed on appeal to determine if due process was violated). Since the interests of Father in raising Child and in Child\u2019s safety are compelling, and the State\u2019s interests in preserving and promoting the welfare of Child are equally compelling, the question before us is whether the procedure followed in granting Mother\u2019s motion for a directed verdict increased the risk of an erroneous deprivation of Father\u2019s interests and whether an additional or substitute procedure would have eliminated or reduced that risk. Id. \u00b6 37. Father was not deprived of procedural due process under this standard.\n{12} Father was given a full and fair opportunity to present evidence in support of his contention that it was Mother and not he who physically abused Child. Had his evidence been believed, it would have completely exonerated him of the allegations made against him in the petition. Father points to a single instance in which his evidence was rejected. The evidence, offered through Father\u2019s own father, was that following the death of Child\u2019s twin brother, Mother stated to a nurse and the testifying father that she may have injured the twin brother by tossing him in the air very roughly, repeatedly. The district court excluded the evidence as hearsay. Father argues that had Mother remained a party, the evidence would have been admissible. See Rule ll-801(D)(2)(a) NMRA (\u201cA statement is not hearsay if ... [t]he statement is offered against a party and is ... the party\u2019s own statement, in either an individual or a representative capacity[.]\u201d). This argument fails to recognize that Mother and Father were not \u201cparty-opponents\u201d; they were co-respondents against whom separate allegations of abuse and neglect were made. The \u201cparty-opponents\u201d were the Department and Father on the one hand and the Department and Mother on the other hand. The statement therefore would not have been admissible as the statement of a party opponent even if Mother remained a respondent while Father was presenting his evidence. See Wilson v. Galt, 100 N.M. 227, 236, 668 P.2d 1104, 1113 (Ct.App.1983) (stating that statements of a party-opponent \u201capply to and bind the party making the admission, not the adverse co-defendants\u201d); State ex rel. Children, Youth & Families Dep\u2019t v. George F., 1998-NMCA-119, \u00b6 18 n. 2, 125 N.M. 597, 964 P.2d 158 (\u201c[S]oeial workers would not necessarily be parties to a lawsuit against the Department, and thus, their statements would not necessarily be treated as admissions by party opponents.\u201d). Furthermore, the rejected evidence related to the death of Child\u2019s brother, and Father was exonerated from that allegation of the petition. He was not therefore prejudiced by its exclusion.\n{13} Finally, Father asserts that because there was some evidence presented by the Department from which it could be inferred that Mother could have inflicted physical abuse on Child, the district court erred as a matter of law in granting Mother a directed verdict. Father\u2019s argument misapprehends the nature of the motion that the district court granted.\n{14} We have referred to the motion granted Mother throughout this opinion as a motion for directed verdict. However, the motion was not, strictly speaking, a motion for directed verdict because in abuse and neglect proceedings, the judge is the fact finder, rather than a jury. Section 32A-4-20(G) (providing that the court makes and records its findings on whether the child is a neglected child, abused child, or both). Mother\u2019s motion was therefore granted pursuant to Rule 1-041(B) NMRA of the Rules of Civil Procedure for the District Courts. In pertinent part, the rule provides:\nAfter the plaintiff, in an action tried by the court without a jury, has completed the presentation of evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.\nId. In Padilla v. RRA Inc., 1997-NMCA-104, \u00b6 17, 124 N.M. 111, 946 P.2d 1122, we explained the difference between a motion for a directed verdict when a jury is the fact finder and a motion for dismissal when the judge is the fact finder:\nA Rule 1-041 (B) motion in a non-jury trial must be distinguished from a motion for directed verdict pursuant to Rule 1-050(A) NMRA [in a jury trial]. A motion for a directed verdict should be granted only when all reasonable minds would agree that the plaintiff had failed to prove facts necessary to support a favorable judgment. In ruling on a Rule 1-041(B) motion, on the other hand, the trial judge acts as a fact finder who weighs the evidence and passes judgment , on whether the plaintiff has proved the necessary facts to warrant the relief asked. Accordingly, we will sustain the grant of a Rule 1-041(B) motion even if the plaintiff has produced enough evidence to withstand a directed verdict under Rule 1-050(A), so long as the decision of the trial judge is rationally based on the evidence. Because Rule 1-041(B) leaves the fact finding to the trial judge, we must view the evidence in the light most favorable to support the findings and judgments of the trial judge.\nId. (citations, internal quotation marks, and brackets omitted). Again, the allegation against Mother was that she failed to protect Child from Father\u2019s abuse. The district judge heard all of the Department\u2019s evidence concerning its allegation, and the court was entitled to determine, under the foregoing standard, that the Department failed to present clear and convincing evidence that Mother knew or should have known about Father\u2019s abuse and that she failed to take reasonable steps to protect Child. Father\u2019s argument that there was some slight evidence that would be sufficient to withstand a motion for a directed verdict in a jury ease is unavailing in this case where there was no jury and the district judge was the fact finder.\n{15} Father has failed to show injury justifying standing to challenge the entry of a directed verdict in Mother\u2019s favor. Father lacks standing to challenge the directed verdict, and the judgment of the district court is affirmed.\nCONCLUSION\n{16} Affirmed.\n{17} IT IS SO ORDERED.\nWE CONCUR: CYNTHIA A. FRY and CELIA FOY CASTILLO, Judges.", "type": "majority", "author": "VIGIL, Judge." } ], "attorneys": [ "Simon Romo, Chief Children\u2019s Court Attorney, Rebecca J. Liggett, Children\u2019s Court Attorney, Santa Fe, NM, for Appellee.", "Law Offices of Nancy L. Simmons, P.C., Nancy L. Simmons, Albuquerque, NM, for Appellant." ], "corrections": "", "head_matter": "2008-NMCA-145\n195 P.3d 365\nSTATE of NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. JEREMY N., Respondent-Appellant, and In the Matter of Bryce N., a Child.\nNo. 27,397.\nCourt of Appeals of New Mexico.\nJune 27, 2008.\nCertiorari Denied, No. 31,238, Sept. 4, 2008.\nSimon Romo, Chief Children\u2019s Court Attorney, Rebecca J. Liggett, Children\u2019s Court Attorney, Santa Fe, NM, for Appellee.\nLaw Offices of Nancy L. Simmons, P.C., Nancy L. Simmons, Albuquerque, NM, for Appellant." }, "file_name": "0198-01", "first_page_order": 232, "last_page_order": 238 }