{ "id": 4243080, "name": "STATE of NEW MEXICO, ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. JOHN R., Respondent-Appellant, and Berlinda R., Respondent, and In the Matter of Sabrina R., Child", "name_abbreviation": "State ex rel. Children, Youth & Families Department v. John R.", "decision_date": "2009-02-02", "docket_number": "Nos. 27,880, 27,985", "first_page": "636", "last_page": "641", "citations": [ { "type": "official", "cite": "145 N.M. 636" }, { "type": "parallel", "cite": "203 P.3d 167" }, { "type": "parallel", "cite": "2009-NMCA-025" } ], "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": "116 N.M. 708", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727657 ], "weight": 2, "pin_cites": [ { "page": "714" }, { "page": "1181" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0708-01" ] }, { "cite": "1998-NMCA-119", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834215 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0597-01" ] }, { "cite": "97 N.M. 598", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555178 ], "weight": 2, "pin_cites": [ { "page": "601" }, { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0598-01" ] }, { "cite": "2008-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3783982 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0740-01" ] }, { "cite": "2007-NMCA-135", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3691502 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0705-01" ] }, { "cite": "908 A.2d 1073", "category": "reporters:state_regional", "reporter": "A.2d", "year": 2006, "pin_cites": [ { "page": "1080", "parenthetical": "recognizing that the inadequate representation of a child in a TPR case could affect the outcome, and thus a parent has a claim of injury sufficient to confer standing" } ], "opinion_index": 0 }, { "cite": "280 Conn. 474", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 5730436 ], "year": 2006, "pin_cites": [ { "parenthetical": "recognizing that the inadequate representation of a child in a TPR case could affect the outcome, and thus a parent has a claim of injury sufficient to confer standing" } ], "opinion_index": 0, "case_paths": [ "/conn/280/0474-01" ] }, { "cite": "2004-NMCA-083", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224600 ], "weight": 6, "pin_cites": [ { "page": "\u00b624" }, { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0053-01" ] }, { "cite": "2008-NMCA-093", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4003669 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0636-01" ] }, { "cite": "2001-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352276 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 5" }, { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0368-01" ] } ], "analysis": { "cardinality": 872, "char_count": 18681, "ocr_confidence": 0.67, "pagerank": { "raw": 9.825062589337795e-08, "percentile": 0.5334208673941995 }, "sha256": "15acf23f70748651c62cd039c83c4a48cbdccd34f9bf9aacb58a53b2f53bceb1", "simhash": "1:fa8741234f0ad64a", "word_count": 3035 }, "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, Chief Judge, and MICHAEL E. VIGIL, Judge." ], "parties": [ "STATE of NEW MEXICO, ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. JOHN R., Respondent-Appellant, and Berlinda R., Respondent, and In the Matter of Sabrina R., Child." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\n{1} John R. (Father) and Berlinda R. (Mother) (collectively Parents) each appeal from the judgment of the district court terminating their parental rights to their daughter, Sabrina R. (Child). Parents\u2019 rights were terminated based on a finding that Child had been subject to abuse and neglect, the causes of which were unlikely to change in the foreseeable future.\n{2} On appeal, Father asserts that the district court committed reversible error by failing to appoint separate counsel for Child when she reached age fourteen during the pendency of the termination proceeding. Mother\u2019s separate appeal asserts that (1) CYFD failed to make reasonable efforts to assist her in alleviating the causes and conditions of neglect, (2) CYFD failed to prove that Mother was unable to alleviate the causes and conditions of neglect, and (3) the termination of parental rights cannot rest only on the best interests of Child.\n{3} We consolidate Parents\u2019 appeals and conclude that Father has standing to assert the right-to-counsel issue and that the district court committed reversible error by not appointing separate counsel for Child when she reached the age of fourteen. Furthermore, we reaffirm our adherence to our statutory mandate to give primary consideration to the best interests of the child in a proceeding to terminate parental rights. Having found -reversible error, we do not address any of Parents\u2019 evidentiary arguments.\nBACKGROUND\n{4} This termination of parental rights (TPR) case deals with the alleged inability of two developmentally disabled persons to properly care for their physically and mentally disabled child. CYFD took Child into custody on October 14, 2005, based on a report that Child was being physically abused/neglected by Parents. The basis for the abuse/neglect allegations was that Child had significant medical needs not being met at home.\n{5} Child was twelve years of age when she was taken into CYFD\u2019s care and was suffering from complex medical problems and interrelated psycho-social issues. Specifically, Child was suffering from hypothyroidism, obtrusive sleep apnea, enuresis, encopresis, mental retardation, ADHD, a necrotic hip, and morbid obesity. Child was virtually immobile because her weight made it difficult for her to walk, even with a walker, and her wheelchair was broken. Child was also incontinent, her Parents were not using Child\u2019s C-Pap machine to treat her sleep apnea, and they were not regularly administering her thyroid medication. Child\u2019s untreated health problems placed her at risk for brain damage or mortality unless drastic measures were taken.\n{6} Based on the foregoing facts, the district court found that Child was neglected and that Child\u2019s safety and welfare could not be ensured if she were returned to Parents. Custody of Child was ordered to remain with CYFD for up to two years while Parents continued with an ongoing treatment plan aimed at reunifying the family. As part of the treatment plan, Parents were ordered to participate in parenting classes, relationship therapy, weekly semi-supervised visits with Child, nutritional training, and in all of Child\u2019s medical and therapeutic appointments.\n{7} As of March 2006, Parents were compliant with their treatment plan and made \u201cgreat progress\u201d toward learning new parenting and nutritional skills. Child was also progressing under her treatment plan, having lost 120 pounds while in foster care. She was continent, receiving proper medical care, and able to walk without using a walker.\n{8} As a result of Parents\u2019 compliance and cooperation, in May 2006 CYFD arranged for Parents to take Child for a trial home visit. Upon returning home, Child\u2019s medical condition quickly deteriorated. Child began to gain weight at a rate of two to three pounds per week, her C-Pap machine was not being used to treat her sleep apnea, and she again became incontinent. She also missed health appointments, stopped taking her thyroid medication, began having temper tantrums, and refused to exercise or follow her diet plan.\n{9} Several factors contributed to Child\u2019s regression and diminished health and well-being. While Child was in foster care, Parents\u2019 relationship had deteriorated and they moved to separate residences. Mother went to live with a new female partner whom Child disliked, and Father moved in with his brother. As a result, Child was going back and forth between Parents. Incidents of domestic violence also took place between Mother, Father, and Child\u2019s older brother. These conditions led to a recommendation that Child be put back in foster care. Child was once again removed from Parents in September 2006 and placed back in treatment foster care.\n{10} Upon returning to foster care, Child once again began making strong progress. She began losing weight again, was more continent, and was getting proper nutrition and medical treatment. At first, CYFD\u2019s permanency plan remained to continue working toward reunification of the family while keeping Child in temporary foster care. But by January 2007, CYFD changed its recommendation from reunification to \u201cTPR/Adoption,\u201d citing Parents\u2019 continued inability to appropriately care for Child\u2019s physical, medical, and emotional needs.\n{11} A TPR motion was filed in January 2007, a two day TPR hearing took place during June, and a final order terminating parental rights was filed on July 2, 2007. In March, approximately three months before the TPR hearing, Child turned fourteen years old. During the proceeding, Father and Mother were each represented by separate counsel, and Child was represented by a guardian ad litem (GAL), but at no point did she have her own attorney.\n{12} At the commencement of the second day of the TPR hearing, Child\u2019s GAL pointed out that Child had the right to representation by separate counsel upon reaching age fourteen. The GAL summarized the relevant statute as follows: \u201c[w]hen a child reaches [fourteen] years of age, a child\u2019s guardian ad litem shall continue as the child\u2019s attorney, provided that the [c]ourt shall appoint a different attorney for the child if the child requests a different attorney or the guardian ad litem requests to be removed.\u201d (internal quotation marks omitted). The GAL then informed the court that Child was already fourteen years old and that she didn\u2019t feel that she could do the job of both GAL and counsel, stating \u201cI don\u2019t feel I can be her attorney, due to her ... mental capacity and ... all my past work as the GAL.\u201d\n{13} Alerted to the potential issue posed by Child\u2019s having reached fourteen before the hearing, the district court decided to meet with Child before making any determination as to what should be done. Upon meeting with Child and her GAL, the district court recognized Child\u2019s position as desiring reunification with Parents and also recognized that such a position was inconsistent with the recommendation of the GAL. But the district court noted Child\u2019s \u201cextreme immaturity and developmental delays,\u201d explaining its concern that Child\u2019s maturity level was not that of an average fourteen-year-old, and that the TPR motion was filed before Child\u2019s fourteenth birthday. The district court reasoned that it would be inappropriate to appoint separate counsel because the GAL had been on the case since its inception, and it would be difficult for anyone else to come up to speed in the case.\n{14} Ultimately, the district court decided against appointing separate counsel for Child. The court\u2019s finding on the issue was as follows: \u201cThe [cjourt has also considered the child\u2019s expressed opinion on reunification, notes the fact that the child turned fourteen during the pendency of this case and, notwithstanding those facts, finds that it is not appropriate to appoint an attorney for the child.\u201d\nDISCUSSION\nFather\u2019s Standing\n{15} As a preliminary matter, we address CYFD\u2019s assertion that Father lacks standing to argue the right-to-counsel issue. Whether a party has standing to sue is a question of law, which we review de novo. See Forest Guardians v. Powell, 2001-NMCA-028, \u00b6 5, 130 N.M. 368, 24 P.3d 803.\n{16} CYFD argues that because the right to counsel does not belong to Father, he has suffered no injury in fact, and therefore lacks standing to argue the right-to-counsel issue. In support of its assertion, CYFD cites Rio Grande Kennel Club v. City of Albuquerque, 2008-NMCA-093, 144 N.M. 636, 190 P.3d 1131, for the standing requirement of \u201can injury in fact.\u201d\n{17} CYFD is correct in its assertion that the right to counsel at issue here belongs to Child and not to Father. However, we do not agree with CYFD\u2019s conclusion that Father has not been injured in fact. An \u201cinjury in fact\u201d is \u201can invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.\u201d Forest Guardians, 2001-NMCA-028, \u00b6 24, 130 N.M. 368, 24 P.3d 803 (internal quotation marks and citations omitted). A litigant need not suffer the actual effects of the challenged action, but need only show that there was a real risk of injury. Rio Grande Kennel Club, 2008-NMCA-093, \u00b6 11, 144 N.M. 636, 190 P.3d 1131.\n{18} Here, Father has a sufficient injury and a sufficiently concrete interest in the outcome of this matter to satisfy the injury in fact requirement. Father has a legally protected interest in his rights as a parent. See State ex rel. Children, Youth & Families Dep\u2019t v. Maria C., 2004-NMCA-083, \u00b624, 136 N.M. 53, 94 P.3d 796 (\u201cA parent\u2019s fundamental liberty interest in the care, custody, and management of their children is well established.\u201d). Termination of this right presents an actual and concrete invasion of that protected interest. For purposes of standing, we need not determine whether failure to appoint counsel for Child was the actual cause of this injury. It is sufficient that it presented a \u201creal risk of injury,\u201d in that it could have affected the course of the trial and whether Father\u2019s rights as a parent would ultimately be terminated. See In re Christina M., 280 Conn. 474, 908 A.2d 1073, 1080 (2006) (recognizing that the inadequate representation of a child in a TPR case could affect the outcome, and thus a parent has a claim of injury sufficient to confer standing).\nFailure to Appoint Separate Counsel at Age Fourteen\n{19} Father argues that the district court erred in failing to appoint separate counsel for Child when she reached fourteen years of age during the pendency of the TPR proceeding. He argues that when Child turned fourteen, one of her \u201cbasic rights\u201d was to have a different attorney appointed to represent her pursuant to NMSA 1978, Section 32A-4-10(E) (2005), and that failure to so appoint was reversible error. We hold that failure to appoint counsel for Child is reversible error because it was prejudicial to Child and violated the Children\u2019s Code.\n{20} The issue of whether the district court erred in failing to appoint separate counsel for Child when she reached fourteen is a question of law that we review de novo. State ex rel. Children, Youth & Families Dep\u2019t v. Brandy S., 2007-NMCA-135, \u00b6 17, 142 N.M. 705, 168 P.3d 1129. \u201cTo warrant reversal, error must be prejudicial.\u201d McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC-022, \u00b6 21, 143 N.M. 740, 182 P.3d 121.\n{21} The relevant provisions of the Children\u2019s Code provide different rights to representation based on whether a child is younger or older than fourteen. See \u00a7 32A-4-10(C), (E). First, if at the inception of an abuse and neglect proceeding a child is under fourteen years of age, the court is required to appoint a GAL for the child. Section 32A-4-10(C). If, on the other hand, the child is fourteen years of age or older, the court is required to appoint an attorney for the child. Id. With respect to each, the court is required to ensure that the GAL \u201czealously represents the child\u2019s best interest^,] and that the ... attorney zealously represents the child.\u201d Section 32A-4-10(F). A child\u2019s attorney also has a duty to provide \u201cthe same manner of legal representation and be bound by the same duties to the child as is due an adult client, in accordance with the rules of professional conduct.\u201d NMSA 1978, \u00a7 32A-1-7.1(A) (2005).\n{22} Here, Child was thirteen when the TPR motion was filed, but turned fourteen before any TPR hearing was held. The Children\u2019s Code also addresses these circumstances where a proceeding commences before a child reaches fourteen and continues beyond the child\u2019s fourteenth birthday. See \u00a7 32A-4-10(E). The relevant section of the Children\u2019s Code is as follows:\nWhen a child reaches fourteen years of age, the child\u2019s guardian ad litem shall continue as the child\u2019s attorney; provided that the court shall appoint a different attorney for the child if:\n(1) the child requests a different attorney;\n(2) the guardian ad litem requests to be removed; or\n(3) the court determines that the appointment of a different attorney is appropriate.\nId. Pursuant to the Uniform Statute and Rule Construction Act, we interpret this section as imposing a requirement that the court must appoint separate counsel for a child if any one of the three conditions is satisfied. See NMSA 1978, \u00a7 12-2A-4(A) (1997) (defining the word \u201cshall\u201d as expressing a duty, obligation, or requirement).\n{23} The district court judge recognized the requirement of Section 32A-4-10(E), but determined that appointment of an attorney for Child was inappropriate under the circumstances of this case. Pursuant to the statute, a district court does not have such discretion (1) if the child requests a different attorney, or (2) if the child\u2019s GAL requests to be removed. Here, Child\u2019s GAL effectively requested removal when she stated that she could not act as Child\u2019s attorney. Therefore, given the mandatory nature of the statute, the trial judge lacked the discretion not to appoint a different attorney for Child. See \u00a7 32A-4-10(E)(3).\n{24} Even if the GAL\u2019s statement were to be interpreted as something less than a request for removal, it was at least sufficient notice that Child was not being afforded her full rights under the Children\u2019s Code-speeifically, Child\u2019s right to zealous representation in her own right. Alerted to the potential that Child\u2019s interests were not fully protected, the district court\u2019s obligation was to remedy the deficiency by appointing separate counsel for Child. Absent separate counsel, Child\u2019s position was not fully developed, and Child was therefore prejudiced by not being afforded her full right to representation.\n{25} To the extent, if any, that the district court had discretion not to appoint separate counsel for Child in this case, consideration of Child\u2019s mental age should not have been part of its analysis. Although we are mindful of the fact that Child may not function at the mental age of fourteen, it does not affect the requirements of the statute. Longstanding precedent in interpreting the Children\u2019s Code is that references to age are references to years of age, not mental age. State v. Doe, 97 N.M. 598, 601, 642 P.2d 201, 204 (Ct.App.1982). Therefore, Child\u2019s mental age should not have been a factor in determining whether to appoint a separate attorney.\n{26} Separate counsel should have been appointed for Child, even if the GAL continued to advocate for Child\u2019s best interest. Some circumstances may require the services of both an attorney and a GAL and, absent a conflict, a GAL may serve a dual role fulfilling the obligations of both. See State ex rel. Children, Youth & Families Dep't v. George F., 1998-NMCA-119, \u00b6 11, 125 N.M. 597, 964 P.2d 158 (observing that a GAL can serve two distinct roles as an advocate for a child\u2019s best interests and an advocate for a child\u2019s position). This may be the case, for example, when a child\u2019s position is exactly aligned with her best interests. However, it is clear that here, Child\u2019s GAL could not serve such a dual role because Child herself desired reunification with Parents, while the GAL deemed TPR to be in Child\u2019s best interests. Therefore, separate counsel should have been appointed even if the district court determined that Child\u2019s GAL should also remain a part of the proceeding because of her background and knowledge of the ease.\nB est-Interests-of-the-Child Standard\n{27} Mother argues that it was improper to decide the TPR hearing based on Child\u2019s best interests, and that her fundamental rights as a parent should have also been considered. The Children\u2019s Code provides that, in proceedings to terminate parental rights, the court must \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 NMSA 1978, \u00a7 32A-4-28(A) (2005). Mother\u2019s argument is unpersuasive. First, as previously noted, a parent has a fundamental interest in the care, custody, and control of his or her children. See Maria C., 2004-NMCA-083, \u00b6 24, 136 N.M. 53, 94 P.3d 796. But \u201c[i]t is well established ... that parents do not have absolute rights in their children; rather, parental rights are secondary to the best interests and welfare of the children.\u201d In re Adoption of Francisco A., 116 N.M. 708, 714, 866 P.2d 1175, 1181 (Ct.App.1993). Aside from expressing disagreement with this standard, Mother presents no argument for setting it aside, and we are unconvinced that we should do so. Second, Mother fails to recognize that due process of law provides safeguards against erroneous deprivation of parental rights. Here, Mother does not allege that she was not afforded due process and, even if she had, we find nothing in the record to support such an argument. Therefore, contrary to Mother\u2019s assertion, her fundamental rights were given proper consideration in the TPR proceeding.\nCONCLUSION\n{28} For the foregoing reasons, we reverse the district court\u2019s termination of Parents\u2019 parental rights to Child and remand for further proceedings consistent with this opinion.\n{29} IT IS SO ORDERED.\nWE CONCUR: CYNTHIA A. FRY, Chief Judge, and MICHAEL E. VIGIL, Judge.", "type": "majority", "author": "BUSTAMANTE, Judge." } ], "attorneys": [ "Simon Romo, Chief Children\u2019s Court Attorney, Rebecca J. Liggett, Children\u2019s Court Attorney, Santa Fe, NM, for Appellee.", "Caren I. Friedman, Santa Fe, NM, for Appellant John R.", "Scott M. Davidson, Albuquerque, NM, for Appellant Berlinda R.", "Pat Anderson, Bosque Farms, NM, Guardian ad Litem." ], "corrections": "", "head_matter": "2009-NMCA-025\n203 P.3d 167\nSTATE of NEW MEXICO, ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. JOHN R., Respondent-Appellant, and Berlinda R., Respondent, and In the Matter of Sabrina R., Child.\nNos. 27,880, 27,985.\nCourt of Appeals of New Mexico.\nFeb. 2, 2009.\nSimon Romo, Chief Children\u2019s Court Attorney, Rebecca J. Liggett, Children\u2019s Court Attorney, Santa Fe, NM, for Appellee.\nCaren I. Friedman, Santa Fe, NM, for Appellant John R.\nScott M. Davidson, Albuquerque, NM, for Appellant Berlinda R.\nPat Anderson, Bosque Farms, NM, Guardian ad Litem." }, "file_name": "0636-01", "first_page_order": 670, "last_page_order": 675 }