(dissenting).
I respectfully dissent. I would reverse both the parental termination action, and dismissal of the periodic review proceedings, and remand both causes back to the children's court to permit the father an adequate opportunity to be heard on the merits.
The facts indicate the proceedings in both actions did not conform with requisite due process. The state filed suit (Case No. 1) against the father and mother alleging neglect or abuse of the children. At the time Case No. 1 was filed the parents had been divorced and the children were in the custody of the mother. The court found the father to be indigent and appointed an attorney, Warren Frost (Frost), to represent him. Following a hearing, the court found the children to be neglected, but entered an adjudicatory order finding in part, that “[t]he children should be returned to [the father] if he reasonably complies with the Department’s treatment plan and demonstrates that he is able to properly care for the children.” The court also directed that periodic review proceedings be held as required by NMSA 1978, Section 32-1-38.1 (Cum.Supp.1988).
During the pendency of Case No. 1, on May 24, 1988, the state filed a second action (Case No. 2) to terminate the father’s parental rights. On June 29,1988, approximately one month after it filed Case No. 2, the state together with the father and the father’s attorney agreed to entry of a stipulated judicial review order in Case No. 1, approving a new treatment plan which the parties agreed was designed to assist the father and to return the children to his custody. Unknown to the father’s attorney, at this same time the state was proceeding independently in Case No. 2 to terminate the father’s parental rights. On August 11, 1988, slightly over one month after stipulating to the new treatment plan in Case No. 1, the state requested a hearing in Case No. 2 to terminate the father’s rights. No notice was ever given by the state to Frost in Case No. 1 informing him of its action to terminate the father’s parental rights in Case No. 2, despite the fact that the state alleged in its petition in Case No. 1 that the father was of “limited intelligence” and “limited intellect,” and the grounds relied upon in the two proceedings were substantially the same.
On December 29, 1988, the state mailed a notice to the father’s attorney in Case No. 1, informing him that a six-month review hearing would be held on January 5, 1989, at 11:30 a.m. No notice was given to the father’s attorney that a hearing to terminate the father’s parental rights in Case No. 2 was also scheduled an hour earlier on the same day so as to render Case No. 1 moot.
The father argues on appeal that the failure to give his attorney any notice in Case No. 1 of the existence of the state’s efforts to terminate the father’s parental rights in Case No. 2 was contrary to fundamental fairness and deprived him of due process. I agree.
One day prior to the January 5, 1989 termination hearing, Frost learned by chance of the existence of Case No. 2. He appeared at the hearing in Case No. 2 and moved for a continuance stating:
I don’t understand what the rationale [for not notifying me] could be when the Department knows that I’ve represented [the father] for the last 18 months and not informing me that in fact that they have filed a petition for termination so that I may properly represent my client.
The state objected to Frost’s standing in Case No. 2 to represent the father. The court denied Frost’s motion for continuance, found that he did not represent the father in Case No. 2, and entered an order terminating the father’s parental rights. An hour later at the periodic review hearing in Case No. 1, the court dismissed Case No. 1, ruling that the case was now moot because in Case No. 2 it had previously terminated the father’s parental rights.
Following this hearing, on January 5, 1989, the court entered an order in Case No. 2, terminating the father’s parental rights, finding in part:
3. [The father] was duly notified of this action and served with process personally on November 16, 1988.
4. By terms of said service, Respondents were to file a responsive pleading within 20 days ... from the date of service for [the father].
5. No entry of appearance or written response has ever been filed by either respondent.
14. Respondents are in default. [Emphasis added.]
The state argues that attorney Frost was not entitled to notice of the proceedings in Case No. 2 because the state had personally served the father and the father failed to file a timely written response and was in default. The trial court, acting upon the belief that the father was in default, entered the termination order. The trial court’s findings and order, however, were influenced by a material mistake of fact because the summons served on the father in Case No. 2 did not comply with the statutory requirements of NMSA 1978, Section 32-1-55(C) (Repl.1986). The latter statute directs that “[t]he notice shall state specifically that the person served must file a written response * * * within twenty days. * * * ” § 32-1-55(C) [emphasis added]. The summons served on the father did not follow the statute and stated he could avoid default by filing a written response within 20 days, “or appear at such time as future notices specify [.]” [Emphasis added.] The plain wording of the summons indicated that the father had a choice of either filing a written response or appearing when notified in the future. Despite this error in the wording of the summons, as shown by the court’s findings the father was nevertheless defaulted for not filing a timely responsive pleading.
The court held a hearing on October 24, 1988 in Case No. 2. No notice was given to Frost of this hearing. The court entered an order in Case No. 2 stating that it was continuing the proceedings until December , 7 and 8, 1988. The state then proceeded to re-serve the father on November 16, 1988, with a new copy of the summons and application for termination of parental rights in Case No. 2. The language of the new summons contained the same material defects as the first.
At the December 7, 1988 hearing in Case No. 2, the state told the court that it had failed to send any notice to the father informing him of the December hearing. This hearing was held less than thirty days after service had been made on the father on November 16, 1988, contrary to Section 32-1-55(G). The latter statute provides that “[t]he hearing date [on an application for termination of parental rights] shall be at least thirty days after service is effected upon the parents of the child or completion of publication.” § 32-1-55(G). Although the state had previously served the father prior to November 16, its reservice of the father in November had the effect of instructing the father he had twenty additional days to respond to the petition or that he could “appear at such time as future notices specify.”
Despite the state’s admission to the court that it had not given the father any notice of the December 7 hearing, the court entered an order terminating the father’s rights, but stated that the December 7, 1988 hearing “shall be continued for a reasonable period of time to provide [the father] with adequate notice of hearing; if at that time [he] fails to appear or respond, this Judgment terminating his parental rights shall become effective.” [Emphasis added.] On December 14, 1988, the state attempted to comply with the court’s order requiring additional notice and mailed a notice of hearing in Case No. 2 to the father. This notice, however, was materially defective because it erroneously stated that the date scheduled for the new hearing was January 5, 1985 [sic], at 10:30 a.m. (emphasis added). No notice of the hearing in Case No. 2 was sent to Frost.
On December 29, 1988, the state requested that the court set a date for the periodic review hearing in Case No. 1. The court set the hearing seven days later for January 5, 1989, at 11:30 a.m., and one hour after the scheduled termination hearing in Case No. 2. Written notice of the hearing in Case No. 1 was mailed by the state to Frost’s office on December 29, 1988. This notice failed to comply with the provisions of Section 32-1-88.1(B), which requires that “twenty days’ written notice to all parties [shall be given] of the time, place and purpose of any judicial review hearing held pursuant to Paragraphs (1) and (2) of Subsection A of this section.’’ [Emphasis added.]
In addition to the time requirement for notices imposed by Section 32-1-38.1, the state was subject to the terms of a consent decree which ordered, among other things, that “[s]o long as Section 32-1-38.1 * * * remains in effect * * * [the] natural parents * * * shall receive adequate written notice of the [review] proceedings.” Joseph A. by Wolfe v. New Mexico Dep’t of Human Servs., 575 F.Supp. 346, 359 (D.N.M.1983). Under the circumstances, the state’s noncompliance with Section 32-1-38.1(B), and its failure to advise Frost of the proceedings in Case No. 2, did not constitute adequate notice in either case.
Parental termination proceedings involve matters of fundamental importance. State ex rel. Dep’t of Human Servs. v. Natural Mother, 96 N.M. 677, 634 P.2d 699 (Ct.App.1981). The father’s parental rights should not be terminated under the circumstances existing here. While I agree with the majority that abuse or neglect cases may be distinct from termination cases, where, however, substantially the same grounds are relied upon in both actions, the state has alleged that the father is of “limited intelligence” and an attorney has been appointed to represent the father in the first action, and the state has stipulated to an order agreeing to return the children contingent with the father’s compliance with a court-ordered parenting plan, but the state has failed to give notice to the attorney appointed to protect the father’s rights in the first action that it is simultaneously proceeding to terminate the father’s rights in a second suit, the result violates fundamental fairness. See Rogers v. State, 94 N.M. 218, 608 P.2d 530 (Ct.App.1980) (notice held insufficient to satisfy statutory requirements).
Procedural due process in termination proceedings necessitates that adequate notice be given to parents of the issues to be determined and a reasonable opportunity to prepare and be heard thereon. See In re Laurie R., 107 N.M. 529, 760 P.2d 1295 (Ct.App.1988); In re Doe, 99 N.M. 517, 660 P.2d 607 (Ct.App.1983); see e.g., In re Downs, 82 N.M. 319, 481 P.2d 107 (1971). A parent’s right to custody is constitutionally protected and should not be terminated except upon a showing that the proceedings substantially complied with statutory notice requirements and are commensurate with due process of law. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); see also Sweetser v. Sweetser, 7 Kan.App.2d 463, 643 P.2d 1150 (1982) (order terminating father’s parental rights held invalid where the notice failed to adequately apprise him of the nature of the action to be taken and a right to be heard). In order to terminate parental rights the grounds relied upon must be proven by clear and convincing evidence. § 32-l-55(H). Notice and procedural requirements for terminating parental rights are no less important. See Fulton v. Cornelius, 107 N.M. 362, 758 P.2d 312 (Ct.App.1988) (actions in the nature of a forfeiture will be closely scrutinized and strictly construed).
I disagree that the father’s attorney was not entitled to notice of the proceedings in Case No. 2 under the circumstances herein. Nor am I able to agree that Frost after his accidental discovery of the existence of the second action, and requesting a continuance in order to protect the father’s interests, has waived any objection to the substantive defects contained in the summons and the other numerous errors herein. Denial of the request for continuance under the circumstances herein, considering the state’s challenge to Frost’s right to appear in Case No. 2, and when viewed in light of lack of notice and the multitude of serious errors existing here, amounted to a denial of due process and was contrary to fundamental fairness. See In re Downs. I would reverse both the order terminating his parental rights and the order dismissing Case No. 1.