July 06, 2018

New Mexico

ABUSE

ABANDONMENT

State v. Stephenson, 2016 WL 5385848 (N.M.).After leaving two-year-old son in his room overnight to sleep, parents discovered serious injuries to his legs from being pinned between bed and dresser. The New Mexico Supreme Court overturned the defendant mother’s conviction for abandonment of a child resulting in great bodily harm, finding that simply departing from a child does not violate the statute unless it is clear at the time of departure the child’s well-being is at risk.

CHILD ENDANGERMENT

State v. Granillo, 2016 WL 4447515 (N.M. Ct. App.). Defendant was convicted of intentional child endangerment, which required proof she acted with conscious objective to endanger child. Appellate court found evidence was insufficient to support conviction. While mother drove vehicle while intoxicated with child in back seat, child was strapped in car seat. Although she drove poorly, she drove haltingly and did not swerve to hit another car or another object. FULL SUMMARY

PRIVILEGED COMMUNICATIONS

State v. Strauch, 345 P.3d 317 (N.M. 2015). Privately employed social worker was mandatory reporter under child abuse reporting statute. Statements made to social worker in private counseling sessions by father who sexually abused his minor daughter are not protected from disclosure in court proceeding as result of specific exception to physician-patient and psychotherapist-patient evidentiary privilege.

MEDICAL NEGLECT

State v. Nichols, 2015 WL 7297087 (N.M.). Defendant appealed conviction of child abuse resulting in death or great bodily harm on theory he negligently permitted endangerment by medical neglect resulting in six-month-old son’s death. Evidence that defendant acted with reckless disregard was insufficient. Child had multiple, birth-related problems, was taken to regular and follow-up medical appointments, and on day of his death, child’s aunt babysat and saw no need to seek medical assistance.

DELINQUENCY

ADMISSIONS

State v. Antonio T., 2014 WL 5377530 (N.M.). Juvenile’s admission of alcohol use to school administrator in presence of deputy sheriff serving as school resource officer was inadmissible in delinquency proceeding. Although school official may insist that child answer questions for purposes of school disciplinary proceedings, any statements elicited may not be used against child in delinquency proceeding unless child made knowing, intelligent, and voluntary waiver of right to remain silent.

PROBATION

State v. Taylor, 2016 WL 4529599 (N.M. Ct. App.). State filed petition to revoke juvenile’s probation, and juvenile moved to suppress statements made to juvenile probation officer. Miranda warning was not required before questioning by probation officer about potential parole violations. Mother informed officer child had been suspended from school for possessing drug paraphernalia, and child could have reasonably suspected officer might ask about drug use. Officer’s failure to provide statutory warning before questioning did not make incriminatory statements inadmissible.

LIABILITY

ATTORNEYS

Kimbrell v. Kimbrell, 306 P.3d 495 (N.M. 2013). Lower court properly held that guardian ad litem (GAL) assigned to serve minor’s best interest was entitled to absolute quasi-judicial immunity from any liability and that she could not be sued by minor’s parents, absent a showing that GAL acted outside her duties. Father sued minor’s GAL alleging tortious conduct that she obstructed communication between him and minor, ignoring that she was following court orders.

TERMINATION OF PARENTAL RIGHTS

ABANDONMENT

In re Grace H., 335 P.3d 746 (N.M. 2014). Termination of father’s parental rights by abandonment needed to proceed under the abuse and neglect subsection of termination statute rather than the abandonment subsection. Although father was not in contact with child during three-year period, he contacted the agency and attempted to assert his rights before the initial termination hearing, when a court-ordered plan for his treatment existed, and father was present, willing, and likely able to  care for child. Agency’s refusal to work with father undermined his attempt to be a part of his child’s life.

In re Melvin C., 2015 WL 1914618 (N.M. App. Ct.). Father pled no contest to adjudication of neglect, and court and child welfare agency discussed treatment plan with him. Mother’s parental rights were terminated without contest. Once court entered neglect finding, it was statutorily required to conduct dispositional hearing and implement treatment plan for father. Presumptive abandonment was improper ground on which to terminate father’s rights. 

INDIAN CHILD WELFARE ACT

In re Casey J., 2015 WL 3879548 (N.M. App. Ct.). In termination of parental rights proceeding involving Indian father and children, trial court had good cause to deviate from placement preferences under Indian Child Welfare Act (ICWA). Father appealed termination not to restore his rights but to require child welfare agency to place children with specific relative. ICWA qualified expert witness (QEW) stated she knew children’s current placements did not meet ICWA placement preferences, but ICWA-compliant placement had not yet been possible due to unwillingness or unavailability of relatives.