As a guardian ad litem (GAL) and domestic relations mediator in New
Mexico, I take special interest in unusual court cases involving
children. In an important child welfare case, the New Mexico Court of Appeals has recently reaffirmed that adjudication of child abuse is not dependent on a finding of which parent abused the child, despite some changes to statutory language. Since abuser parents often act in complicity if not concert, this ruling significantly advances child welfare in New Mexico.
In the matter of Cheyenne C. and Caylie C., 2012- MCA-0065 (cert. not applied for), Mom and Dad were the primary care givers of the Infant child who suffered a fractured clavicle, two subdural hematomas, a right skull fracture, a fracture in the right forearm, a right femur fracture, a right parietal skull fracture and ischemic brain tissue damage, resulting from at least two incidents of abuse. Parents blamed injuries on the Older Child, the Infant's two year old sister, or an evil spirit. The only other care giver was the maternal Grandmother, who babysat for a couple of hours one day a week while parents attended college classes.
The trial court had stated "it had 'no problem' finding by clear and convincing evidence that Mother or Father caused the injuries, but it could not determine which parent specifically was the perpetrator." The court found that either one or both of the parents abused the child and that if one of them did not abuse the child directly, that parent's "inaction resulted in an 'abused child' as defined under state law.
On review, the Court of Appeals examined the various amendments to the New Mexico Child Welfare Act, and related case law.
Prior to 1997, the act provided four alternate definitions of an "abused child," all of which were framed in reference to action or inaction of the child's "parent, guardian or custodian." See §§ 32A-4-2(B)(1) - (4) (1993) (that an abused child means a child who has suffered physical, emotional or psychological abuse, sexual abuse or sexual exploitation "inflicted by the child's parent, guardian or custodian," or whose "parent, guardian or custodian has knowingly, intentionally or negligently placed the child in a situation that may endanger the child's life or health," or whose "parent, guardian or custodian has knowingly or intentionally tortured, cruelly confined or cruelly punished the child"). New Mexico courts had previously concluded that this definition "did not permit the children's court to adjudicate a child abused or neglected without assigning responsibility for the abuse or neglect to a parent, guardian or custodian." Vincent L., 1998-NMCA-089
In 1997, a new section was added providing that an "abused child" is a child "who is at risk of suffering serious harm[.]" See § 32A-4-2(B)(1) (1997). Thereafter, § 32A-4-2(B)(1) was amended again in 1999, to state that "an abused child" is one "who is is at risk of suffering serious harm because of the action or inaction of the child's parent, guardian or custodian."
Parents had argued that the 1999 amendment returned Section (B)(1) to it's pre-1997 meaning that required the court "to determine which parent, guardian or custodian was the abuser, but the Court of Appeals rejected this interpretation. In re Cheyenne et al, ¶ 13. The Court "read the plain language of the statute" as amended "to indicate that ... the court no determine" only "that it was a parent, guardian, or custodian who placed the child at risk by his or her action or inaction." Id. (emphasis in original). The Court concluded the 1999 amendment's purpose was not to return to the pre-1997 meaning, but only "to clarify that a child may only be adjudicated as abused if the risk of harm is caused by a parent, guardian, or custodian of the child," rather than a teacher, school bully, neighbor, etc.
The Court also noted that even Vincent did not require the courts to affirmatively rule out which parent committed the abuse, but only required that responsibility for the abuse be assigned between caregivers. In that case, there were other caregivers (babysitter and grandmother) that the trial court was unable to rule out, and it was for that reason it could not determine that the abuse was caused by "a parent, guardian, or custodian."
In contrast, in the instant case the trial court was able to determine that abuse had been caused by either Mom or Dad--not the Older Child, evil spirits, or Grandmother--"and, therefore, that the abuse was caused by 'a parent, guardian, or custodian.' as required by the statute."
If you are
interested in child-related mediation or GAL (guardian ad litem) services,
please contact Pilar Vaile, P.C. at
(505) 247-0802, or info@pilarvailepc.com.
