{ "id": 1568822, "name": "STATE of New Mexico HEALTH AND SOCIAL SERVICES DEPARTMENT, Petitioner-Appellee, v. Peggy SMITH, Respondent-Appellant", "name_abbreviation": "State Health & Social Services Department v. Smith", "decision_date": "1979-01-09", "docket_number": "No. 3614", "first_page": "348", "last_page": "352", "citations": [ { "type": "official", "cite": "93 N.M. 348" }, { "type": "parallel", "cite": "600 P.2d 294" } ], "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": "88 N.M. 338", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839119 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0338-01" ] }, { "cite": "431 U.S. 816", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2109 ], "weight": 4, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/431/0816-01" ] }, { "cite": "89 N.M. 606", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2863893 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0606-01" ] }, { "cite": "128 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "258 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559589 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/258/0089-01" ] }, { "cite": "215 S.W.2d 887", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10268286, 10268159 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/sw2d/215/0887-02", "/sw2d/215/0887-01" ] }, { "cite": "152 Tex.Cr.R. 545", "category": "reporters:state", "reporter": "Tex. Crim.", "case_ids": [ 2591412 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/tex-crim/152/0545-01" ] }, { "cite": "85 N.M. 597", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2776921 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0597-01" ] }, { "cite": "85 N.M. 585", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2774295 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/85/0585-01" ] }, { "cite": "80 N.M. 345", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5362583 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0345-01" ] }, { "cite": "83 N.M. 644", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335909 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0644-01" ] }, { "cite": "86 N.M. 639", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2823145 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0639-01" ] }, { "cite": "77 N.M. 286", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804399 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0286-01" ] }, { "cite": "588 P.2d 554", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1978, "opinion_index": 0 }, { "cite": "92 N.M. 353", "category": "reporters:state", "reporter": "N.M.", "year": 1978, "opinion_index": 0 }, { "cite": "92 N.M. 370", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557072 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0370-01" ] } ], "analysis": { "cardinality": 612, "char_count": 12458, "ocr_confidence": 0.789, "pagerank": { "raw": 7.150073109765472e-08, "percentile": 0.4285645610998942 }, "sha256": "4f030f642abbe5270e670a923622e3bce006d1d81e835c4944b2fd3d4afaec82", "simhash": "1:97a85a0bce71d8f7", "word_count": 1999 }, "last_updated": "2023-07-14T15:53:36.909287+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico HEALTH AND SOCIAL SERVICES DEPARTMENT, Petitioner-Appellee, v. Peggy SMITH, Respondent-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThis appeal involves the termination of the parental right of the mother of a child, approximately 2Vz years old at the termination hearing. The mother\u2019s appeal raises issues as to the trial court\u2019s findings, which need not be discussed, either because the particular finding is supported by substantial evidence or because irrelevant to the decision. We discuss: (1) Evidence Rule 504, the psychotherapist-patient privilege, and (2) requirements for termination of the mother\u2019s parental right.\nThe child, whose father is unknown, was born October 15, 1975; the child had been in foster care with the H.S.S.D. (Health and Social Services Department) for over two years at the time of the termination hearing in April, 1978. Thus, the child has not lived with his mother most of its life. The reason was the condition of the mother; she had been \u201cunable to discharge her natural responsibilities as a parent due to mental incapacity, hospitalization and incarceration periods, and the use of alcohol.\u201d\nEvidence Rule 504, The Psychotherapist-Patient Privilege\nDr. Lowe testified as to the mother\u2019s mental condition. The trial court found:\nDr. William R. Lowe is a licensed psychologist in the State of New Mexico, and he has over the past three (3) years examined, counselled, and treated Peggy Smith pursuant to court commitment while she was confined to the New Mexico State Hospital, Las Vegas and while incarcerated in the Clovis City Jail, and at the request of personnel of HSSD.\nSubstantial evidence supports this finding.\nThe mother objected to Dr. Lowe testifying, claiming the privilege stated in Evidence Rule 504(b), against disclosure of confidential communications. The mother tendered nothing indicating any communication was \u201cconfidential\u201d, that is, \u201cnot intended to be disclosed\u201d. See State v. Gallegos, 92 N.M. 370, 588 P.2d 1045 (Ct.App.1978) cert. denied, 92 N.M. 353, 588 P.2d 554 (1978). Rather, the mother\u2019s argument centers on the meaning of communication. She argues that communication means more than the oral communication of the patient to the psychotherapist. See Williams v. City of Gallup, 77 N.M. 286, 421 P.2d 804 (1966). Dr. Lowe\u2019s testimony was based on his examinations, counseling, and treatment of the mother over a three-year period. The mother asserts the examinations, counseling, and treatment all involve communication and, therefore, Dr. Lowe\u2019s testimony should have been excluded because in violation of the privilege. We do not answer this contention.\nAssuming, but not deciding, that communication has the broad meaning asserted by the mother, a part of the communications were in connection with court ordered examinations of the mother\u2019s mental condition. Communications made in the course of those examinations were not privileged with respect to the particular purpose of the examination unless the judge ordered otherwise. Evidence Rule 504(d)(2). The judge did not order otherwise. To the extent Dr. Lowe\u2019s testimony was based on court ordered examinations, there was no privilege. State v. Milton, 86 N.M. 639, 526 P.2d 436 (Ct.App.1974).\nThe mother objected to Dr. Lowe\u2019s testimony in its entirety. She did not attempt to distinguish between non-privileged testimony and testimony allegedly subject to the privilege. Since the objection went to the entire testimony, the objection was properly overruled. State v. Carlton, 83 N.M. 644, 495 P.2d 1091 (Ct.App.1972).\nRequirements for Termination of the Mother\u2019s Parental Right\nThe termination of the mother\u2019s parental right was under \u00a7 40-7-4, N.M.S.A.1978. The trial court found the mother was unfit; thus, the specific ground for termination was \u00a7 40-7-^4(A)(3), which reads:\n(3)the parent is unfit, that is, the parent has repeatedly or continually neglected or willfully abused the child, or failed or refused to perform the natural and legal obligations of care and support; and because of such parental conduct the minor has suffered serious physical, mental or emotional harm; and such parental conduct will probably continue and the continuation of such parental conduct will probably cause further and serious harm to the minor and the disintegration of the parent-child relationship.\nThe quoted provision states four components for an \u201cunfit\u201d finding:\n(a) The parent has repeatedly or continually neglected or willfully abused the child, or failed or refused to perform the natural or legal obligations of care and support.\n(b) Because of such parental conduct the child has suffered serious physical, mental or emotional harm.\n(c) The parental conduct will probably continue.\n(d) The continuation of such parental conduct will probably cause further and serious harm to the child and the disintegration of the parent-child relationship.\nThe mother asserts that mental illness was an insufficient basis to terminate her parental right. We agree, in this case the requirements for \u201cunfit\u201d must have been met. The mother asserts her parental right was terminated on the ground that she was unable to care for the child because of mental illness. We disagree.\nThe trial court found that the child had been placed in the custody of H.S.S.D. \u201c[pjursuant to a determination ... that the child was dependent and neglected\u201d. Other findings are to the effect that the mother had failed to perform the natural and legal obligations of care and support because of mental illness. These findings went to component (a).\nThe trial court found the child had been subjected to mental or emotional harm; this went to component (b).\nThe trial court found that the mother\u2019s mental illness was continuing \u201cand no indication exists that she will ever improve\u201d; this went to component (c).\nThe trial court found that \u201c[cjontinuation of this atmosphere will probably cause further harm to the child and the disintegration of the parent-child relationship\u201d; this went to component (d).\nAlthough the trial court made findings directed to each of the statutory components, such findings were not required. The trial court was only required to find the ultimate fact. The ultimate fact was that the mother was unfit. The trial court was not required to make findings as to the components of \u201cunfit\u201d because those components were not ultimate facts. See McCleskey v. N. C. Ribble Company, 80 N.M. 345, 455 P.2d 849 (Ct.App.1969).\nHaving found the ultimate fact that the mother was unfit, the appellate issue does not involve the sufficiency of findings as to the components of \u201cunfit\u201d; rather, the appellate issue is whether there was substantial evidence of each of the components so that the finding of the ultimate fact was supported by the evidence.\nThere is no serious claim concerning the sufficiency of the evidence as to components (a), (c) or (d). The mother contends, however, that there is no substantial evidence as to component (b), that because of parental conduct, the child has suffered serious physical, mental or emotional harm. The mother refers us to evidence concerning the physical condition of the child after visiting the mother and asserts the physical harm was not \u201cserious\u201d. We do not review this evidence because the trial court findings, even though not required, show the trial court did not rule that the child suffered serious physical harm. The trial court found that the child suffered mental or emotional harm.\nPrior to the 1975 amendment to \u00a7 40-7-4, supra, the required showing as to \u201cserious harm\u201d was stated in the alternative; the requirement was that \u201cthe minor is suffering or will probably suffer serious . harm.\u201d The statutory wording, prior to the 1975 amendment, is quoted in Judge Hernandez\u2019 specially concurring opinion in Huey v. Lente, 85 N.M. 585, 514 P.2d 1081 (Ct.App.1973). Judge Hernandez\u2019 opinion was approved by the Supreme Court. Huey, supra, 85 N.M. 597, 514 P.2d 1093 (1973). As presently worded, however, \u00a7 40-7\u20144(A)(3), supra, requires evidence that the child has suffered serious harm and evidence that parental conduct probably will cause further serious harm.\nThe mother\u2019s evidentiary attack asserts an insufficiency of evidence that the child has suffered serious harm; she does not assert \u2022 an insufficiency of evidence as to serious harm in the future. In this case, the evidence as to harm is interrelated; specifically, evidence as to future harm bears on the question of existing harm.\nWhat is the meaning of \u201cserious harm\u201d in \u00a7 40-7-4(A)(3), supra? Silva v. State, 152 Tex.Cr.R. 545, 215 S.W.2d 887 (1948) held that \u201cserious injury\u201d meant an injury as would give rise to apprehension or attended with danger. Similarly, \u201cserious harm\u201d means harm giving rise to apprehension or attended with danger. Whether \u201cserious harm\u201d exists must be determined according to the particular facts of each case. See State v. Jones, 258 N.C. 89, 128 S.E.2d 1 (1962).\nThe conduct of the mother, considered here, is the failure to perform the natural obligation of care and support. This obligation was to personally care for, support, educate, give moral and spiritual guidance, and provide a home and the love and security which a home provides. See Adoption of Doe, 89 N.M. 606, 555 P.2d 906 (Ct.App.1976). The evidence shows a consequence of the mother\u2019s failure was the absence of a parent-child relationship.\nAs a result of the mother\u2019s conduct, custody of the child was awarded to H.S.S.D. Another result was that the child was placed with foster parents, a temporary arrangement. See Huey v. Lente, supra; see also Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14, (1977).\nAn obvious mental or emotional harm to the child was the absence of a parent-child relationship \u2014 the absence of the performance of the parental obligation. The trial court could properly view this harm as serious; that is, giving rise to apprehension or attended with danger, for three reasons. First, the turnover among the social workers who supervised the child\u2019s foster care arrangements. Three had been assigned to the child\u2019s case. Second, the child had been with foster parents for over two years. Although the same foster parents had cared for the child most of this time, it nevertheless was a temporary arrangement attended with the danger that the child would develop deep emotional ties with the foster parents. Third, the social workers had affirmatively sought to restore a parent-child relationship through visitations. The efforts were unsuccessful. During the last visitation arrangement, of visits of approximately one hour in the presence of the social worker, the mother\u2019s acceptance of the child rarely lasted longer than thirty minutes. Thus, it is clear that the child will not be returned to the mother.\nSmith v. Organization of Foster Families, supra, states:\nIt is not surprising then that many children, particularly those that enter foster care at a very early age and have little or no contact with their natural parents during extended stays in foster care, often develop deep emotional ties with their foster parents.\nYet such ties do not seem to be regarded as obstacles to transfer of the child from one foster placement to another. The intended stability of the foster-home management is further damaged by the rapid turnover among social work professionals who supervise the foster-care arrangements on behalf of the State. . . . Moreover, even when it is clear that a foster child will not be returned to his natural parents, it is rare that he achieves a stable home life through final termination of parental ties and adoption into a new permanent family-\nThe considerations in this quotation apply to this case.\nThe mother contends that even if there was evidence that the child had suffered serious mental or emotional harm, that evidence was not \u201cclear and convincing\u201d as required by \u00a7 40-7-4(F), supra. \u201cClear and convincing\u201d evidence is defined in Matter of Valdez, 88 N.M. 338, 540 P.2d 818 (1975). The evidence met this standard.\nThe decision and judgment of the trial court are affirmed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Manuel J. Lopez, Southern New Mexico Legal Services, Clovis, for respondent-appellant.", "Jeff Bingaman, Atty. Gen., Julia C. Southerland; Garry Wamser, Asst. Attys. Gen., Santa Fe, for petitioner-appellee." ], "corrections": "", "head_matter": "600 P.2d 294\nSTATE of New Mexico HEALTH AND SOCIAL SERVICES DEPARTMENT, Petitioner-Appellee, v. Peggy SMITH, Respondent-Appellant.\nNo. 3614.\nCourt of Appeals of New Mexico.\nJan. 9, 1979.\nManuel J. Lopez, Southern New Mexico Legal Services, Clovis, for respondent-appellant.\nJeff Bingaman, Atty. Gen., Julia C. Southerland; Garry Wamser, Asst. Attys. Gen., Santa Fe, for petitioner-appellee." }, "file_name": "0348-01", "first_page_order": 394, "last_page_order": 398 }