Ronald A. v. State ex rel. Human Services Department

OPINION MINZNER, Judge. On the court’s own motion, the prior opinion is withdrawn and the following is substituted. Father appeals the termination of his parental rights and related orders involving two children’s court actions. One action involves a periodic review hearing in an abuse and/or neglect proceeding, pursuant to NMSA 1978, Section 32-1-38.1 (Repl. Pamp.1989), and the other concerns a hearing on the Human Service Department’s (department) application for termination of parental rights. The abuse and neglect proceeding was assigned Curry County District Court No. 3617; the department’s application for termination of parental rights was assigned Curry County District Court No. 3682. Both hearings were conducted on the same day; the hearing on the department’s application preceded the periodic review hearing. Father appeals from an order entered in No. 3682 terminating his parental rights, and from an order entered in No. 3617 dismissing the abuse and/or neglect proceedings, although he filed a single notice of appeal. This court assigned one number to both appeals and in effect has consolidated father’s separate appeals. On appeal, father contends that the procedures used by the state deprived him of his due process rights under the fourteenth amendment and also under New Mexico Constitution article II, Section 18 because (1) the counsel appointed to represent him in the abuse and neglect proceeding was not given notice of the application for termination of parental rights or subsequent hearings on that application, and (2) father was not given notice of the first hearing on the merits of the application until after the hearing was completed and the court had terminated his rights. Under the circumstances of this case, we affirm, but we express concerns about the procedures utilized by the state. BACKGROUND. Father is the natural father of two girls. Before the filing of the abuse/neglect petition, the girls had been in the department’s custody for three years. Father and mother were divorced in proceedings in which mother was given physical custody. The department’s three years of custody was based on proceedings against mother. In the abuse and/or neglect proceedings against father, the state alleged his limited interest in the girls during the time they were in its custody, as well as some reported incidents of abuse and neglect. Attorney Warren F. Frost (Frost) was appointed to represent father in the abuse and/or neglect proceedings. Father admitted neglecting the children. The court adjudicated the children to be neglected and ordered the children to remain in the custody of the department and father to comply with the treatment plan proposed by the department. Upon the first judicial review of this case in June 1988, the parties stipulated to extend the prior judgment with some modifications. The stipulated judgment reflects that the department was still making efforts to reunite the girls With father. However, in May 1988 the department filed an application to terminate father’s parental rights. The court clerk opened a new case and assigned a new number to this proceeding. Frost had no knowledge of this new case, and he did not receive notification from the state. Father was served with the petition in the new case in August and November of 1988. The summons, served on father with the petition, contained the instructions that father was required to either file a written response or appear at such time as future notices would specify and that failure to do so would result in default. We note that the summons served on father in the termination proceeding did not strictly comply with the requirements set forth in the Children’s Code. See NMSA 1978, § 32-1-55(C) (Repl.Pamp.1989). Section 32-l-55(C) requires that the notice state specifically “that the person served must file a written response to the application within twenty days if he intends to contest the termination.” The summons served on father also stated that father had a right to counsel and that the court would appoint counsel if father was indigent. The termination matter was heard on the merits in December 1988. Father received no notice of the hearing and did not attend. The court heard evidence from three witnesses. The department requested that parental rights with regard to mother be terminated and that the court grant a continuance in the proceedings regarding father so that father would receive notice, and should father not attend, that a judgment terminating parental rights also be made against him. The court granted the department’s request and continued the hearing until January to give the department another opportunity to notify father. The termination matter was set for hearing on January 5, 1989, at 10:30 a.m. Father was given notice of this hearing on December 14, 1988. In the meantime, in December 1988, the state petitioned for a periodic review of the dispositional judgment entered in the neglect matter. See § 32-1-38.1. The judicial review was set for a hearing on January 5, 1989, at 11:30 a.m. Frost was notified of this hearing two days before the proceedings. Frost’s secretary was in the courthouse on January 4 and learned from the court monitor that there were two hearings involving father that would be heard the next day. The termination hearing would be heard at 10:30 and the review of the neglect judgment would be at 11:30. This was the first Frost knew of the proceedings for termination of parental rights. Frost appeared at 10:30 and objected to the proceedings. He argued that the state’s position, that.he was only attorney for the neglect proceedings and not the termination, was ludicrous. He pointed out the state’s position would mean that he was not entitled to participate in the termination proceedings at 10:30, at the conclusion of which the court would terminate father’s rights, thus making judicial review moot in the neglect proceedings to be heard at 11:30. The state’s attorney argued that father was properly notified of the termination action through service of the summons and petition containing specific instructions. Frost pointed out that, throughout the neglect proceedings, father had been counting on the attorney to represent father’s interests and contact him if there was any problem. He did not, however, offer any evidence, live or by affidavit, to support this argument, nor was his request for a continuance a request for time to obtain that proof. The court below was not persuaded by Frost’s argument. It nonetheless allowed him to participate in the hearing, which was limited to presentation of the judgment terminating parental rights and brief testimony by the social worker. The social worker testified that father vacillated between wanting to relinquish his rights and wanting to assert them. She said father had very little contact with the girls and that the home study on him was negative. The social worker also testified that father made little attempt to comply with the treatment plan. The social worker acknowledged that she knew Frost represented father. The court terminated father’s rights. Shortly thereafter, the neglect proceeding was held. Evidence was admitted updating the court on the children’s progress and programs for them. The state requested that the case be dismissed based on the fact that father’s rights had just been terminated. With no objection, the court ordered dismissal. Frost appealed both cases on father’s behalf. The department has moved to dismiss the appeal. It contends Frost cannot act for father in the termination case and, because father’s rights were terminated in that case and because once his rights were terminated the neglect proceedings were properly dismissed, there is no legitimate appeal. We consider this argument unduly technical and mechanistic; we therefore deny the motion to dismiss. We first address father’s argument that his counsel was entitled to notice of the termination proceeding because he had been appointed to represent father in the neglect and abuse proceedings. APPOINTMENT AS COUNSEL IN A NEGLECT AND ABUSE PROCEEDING: SCOPE OF REPRESENTATION. The state’s contention that the neglect proceedings were separate and distinct from the termination of parental rights proceedings has merit. Thus, we hold that ordinarily there is no requirement that the state serve counsel in one proceeding with papers commencing another separate and distinct proceeding. However, there may be circumstances under which the state should serve an attorney for a parent in abuse and neglect proceedings when the state then seeks to terminate that parent’s rights. The first proceeding is designed to adjudicate the petition for abuse and neglect, make a disposition order, and thereafter to conduct periodic reviews. The second proceeding is designed to determine whether parental rights should be terminated. Many termination cases begin as neglect cases, see, e.g., State ex rel. Human Servs. Dep’t v. Cynthia Y., 106 N.M. 406, 744 P.2d 181 (Ct.App.1987); however, a termination proceeding does not necessarily follow a neglect proceeding. A termination proceeding is not dependent on a prior adjudication of neglect. State ex rel. Human Servs. Dep’t v. Ousley, 102 N.M. 656, 699 P.2d 129 (Ct.App.1985). The purposes and the remedies for the two proceedings are different. State ex rel. Human Servs. Dep’t v. Levario, 98 N.M. 442, 649 P.2d 510 (Ct.App.1982). In the disposition hearing of a neglect proceeding, immediately relieving the harmful situation and implementing a remedial treatment plan is the central focus. NMSA 1978, § 32-1-34(A), (B), (C) (Repl.Pamp.1989). In the termination proceeding, on the other hand, a permanent end to the parent/child relationship is sought to allow the child to become available for adoption. See NMSA 1978, §§ 32-1-54, -55 (Repl.Pamp.1989); cf. NMSA 1978, §§ 32-1-58, -59 (Repl.Pamp.1989). The evidence supporting an adjudication of neglect may be the same as that for termination. One of the bases for termination of parental rights is a finding that the child is neglected. § 32—1—54(B)(3). Thus, evidence of neglect is required. However, the statute further requires a finding “that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future.” Id. Therefore, evidence of the parent’s inability to improve parenting techniques is also required for termination. The separate nature of the proceedings in this case is also apparent from the petitions. In the petition for adjudication of abuse and/or neglect, father was the only respondent. In the termination petition, father and mother were both respondents. The interests of the parties, and thus the function of the attorneys in the two proceedings, have both similarities and differences. In both proceedings, the function of the attorney is to help the respondent refute damaging evidence of abuse or neglect. However, in the neglect proceeding, the attorney may advise the client that it is in his or her best interest to work with the department and thus stipulate to the neglect. See NMSA 1978, § 32-1-31(F) (Repl.Pamp.1989). In addition, the attorney may assist in advising the client concerning his or her responsibilities under the treatment plan. See § 32-1-34(C). The attorney may also see to it that visitation rights are afforded the client as allowed by statute. See § 32-1-34(D). The interest of the client in the termination proceeding is ordinarily to keep the children. In this circumstance, the role of the attorney is more adversarial toward the petitioner. His or her job would not only be to refute evidence of abuse and neglect, but also to refute evidence that conditions are unlikely to change. Thus, because the proceedings are separate and distinct, we cannot agree with Frost that the department was required to give him notice of the termination proceedings because he represented father throughout every stage of the proceedings involving the parent/child relationship. See State ex rel. Human Servs. Dep’t v. Ousley. Nor, however, can we agree with the state that it was not required to serve Frost under any circumstances. We consider it noteworthy that father did not file any motions attacking the judgment, e.g., SCRA 1986, 1-060(B), and, accordingly, there was no evidence presented to support the implication underlying father’s contentions. The implication was that he was relying on Frost to protect his rights in any proceedings relating to the children. While Frost argued this at the hearing below, we have repeatedly held that argument of counsel is not evidence and does not establish facts. State v. Jacobs, 102 N.M. 801, 701 P.2d 400 (Ct.App.1985); Phillips v. Allstate Ins. Co., 93 N.M. 648, 603 P.2d 1105 (Ct.App.1979). Thus, in this case, we do not have a record to support a claim that father was relying on Frost to protect his rights, and therefore the state should have served Frost. Accordingly, we reject father’s first issue. However, the state could be jeopardizing the finality of judgments terminating parental rights by not serving the attorney under circumstances where it could be shown that the abuse and neglect case and the application for termination of parental rights are closely intertwined and where the parent is in fact relying on counsel to protect his or her interests in both cases. Finally, we have reviewed the criminal law cases on which father relies and do not believe they support any requirement that an attorney appointed in one action should be considered the attorney in another action. We next discuss father’s contention that he was denied due process because he was not given notice of the December hearing at which his parental rights were conditionally terminated. DENIAL OF DUE PROCESS IN CONNECTION WITH THE APPLICATION TO TERMINATE PARENTAL RIGHTS. If we assume that father was not entitled to Frost’s representation at the January termination hearing, father’s second issue is without merit. The December hearing was continued because the court recognized that father was not given notice. Father does not contend that he lacked notice of the January hearing. In fact, as already noted, he was given notice of that hearing. Father never answered the application to terminate parental rights nor showed up at the hearing of which he had notice. Thus, he was in default with respect to the application to terminate parental rights, and the children’s court did not err in granting the department’s application. Again, however, we must point out that there is no evidence in this case that father failed to attend the hearings in the termination case because of his reliance on counsel. Similarly, there is no showing that father did not attend the hearings in the termination case because of various errors in the papers notifying him of the case or of the hearings. Although we share Judge Donnelly’s concern over the error in the wording of the summons as well as various technical or occasionally clerical errors that occurred, we note that the defense of lack of jurisdiction over the person is waived if it is neither made by motion nor included in a responsive pleading. See SCRA 1986, 1-012(H)(1) (Cum.Supp.1989). Further, father does not rely on any of these errors to argue on appeal that his due process rights were violated, and it does not appear that father relied on any of them in moving for a continuance. We have been admonished by the supreme court not to consider issues not raised in the trial court or briefed on appeal. See State ex rel. Human Servs. Dep’t v. Staples, 98 N.M. 540, 650 P.2d 824 (1982); New Mexico Dep’t of Human Servs., Income Support Div. v. Tapia, 97 N.M. 632, 642 P.2d 1091 (1982). Finally, because there was no post-judgment motion hearing at which father presented evidence, there is no showing that any of these errors had any effect on father’s default. To be reversible, error must be prejudicial. State v. Wright, 84 N.M. 3, 498 P.2d 695 (Ct.App.1972). However, had father established prejudice by evidence presented to the children’s court, that court may well have been required to vacate its judgment. Thus, we caution the department that, although father has not established prejudice in this case, inattention to detail can jeopardize the finality of judgments, and the errors that occurred in this case should be avoided in future cases. Nevertheless, on the record before us, we are not persuaded that fundamental error has occurred, nor are we persuaded that father’s fundamental rights were violated. Under these circumstances, the judgments of the children’s court should be affirmed. The court requested oral argument in this case and, as an experiment, scheduled a telephone conference call. The purpose of this procedure was to save parties with few resources the expense of long-distance travel. At the conference, each of the panel members and counsel was identified. Each counsel had the opportunity, without interruption, to state his or her respective position. Each member of the panel then directed questions to counsel. Counsel not involved in that questioning were later given the opportunity to respond. The panel wishes to express its appreciation to counsel for participating in this experiment and for the candor with which each answered the court’s questions. CONCLUSION. The judgments of the children’s court are affirmed. IT IS SO ORDERED. BIVINS, C.J., concurs. DONNELLY, J., dissenting.