(dissenting).
I agree with the majority’s conclusion that the trial court need not make a separate finding of unfitness before terminating parental rights, and I agree with the conclusion that the presumption of abandonment may be rebutted by a showing that the destruction of the parent-child relationship was not caused by parental conduct. I also emphatically agree with the majority’s chastisement of the adoption agency in placing J.J.B. for adoption on the same day the mother relinquished the child to the agency, despite Bookert’s request that the child be turned over to him. I nonetheless dissent, because in my opinion this case is wrongly decided. The evidence clearly supports the conclusion that Bookert bore the responsibility for the disintegration of his relationship with his son and thus failed to rebut the presumption of abandonment. The court, as factfinder, has already decided that Bookert’s parental rights should be terminated, taking into consideration “the physical, mental and emotional welfare and needs of the child,” NMSA 1978, § 32-l-54(A) (Repl.Pamp.1989). See In re Samantha D., 106 N.M. 184, 186-87, 740 P.2d 1168, 1170-71 (Ct.App.) (holding that court must consider best interests of child in action to terminate parental rights), cert. denied, (August 14, 1987). We should defer to this decision.
In 1976 the Court of Appeals interpreted the term “abandonment” as it appeared in the Adoption Act. See In re Adoption of Doe (Doe v. Heim), 89 N.M. 606, 555 P.2d 906 (Ct.App.), cert. denied, 90 N.M. 7, 558 P.2d 619 (1976). The Court held that two factors — parental conduct evidencing a conscious disregard of obligations owed to the child and destruction of the parent-child relationship — must both be established to prove abandonment. In addition, the evidence of the destruction of the parent-child relationship is of no consequence if it cannot be established that the destruction was caused by parental conduct. Id. at 618, 555 P.2d at 930. In 1983 the legislature established a set of conditions which, if demonstrated by clear and convincing evidence, created a rebuttable presumption of abandonment. Those conditions are that (1) the child has been placed in the care of others; (2) the child has lived in the home of others for an extended period of time; (3) the parent-child relationship has disintegrated; (4) a psychological parent-child relationship has developed between the substitute family and the child; (5) the child prefers no longer to live with the natural parent; and (6) the substitute family desires to adopt the child. NMSA 1978, § 32-1-54(B)(4) (Repl.Pamp.1989). In the presumptive abandonment statute, the legislature listed a set of conditions that, if present, are objective evidence that the parent has shown a conscious disregard of the obligations owed to the child. The presumption can be rebutted, however, by a showing that the deterioration of the relationship was beyond the control of the parent, or in other words, was not caused by parental conduct. See In re Catholic Child Care Soc’y, 112 A.D.2d 1039, 492 N.Y.S.2d 831, 833 (1985) (stating that statutory presumption of abandonment may be overcome by “evidence sufficient to establish that the absence of contact was the result of circumstances which made [the parent] unable to visit and communicate with the child or agency”).
Abandonment is a question of fact, and the trial court’s finding of abandonment should be reviewed to determine if the evidence was sufficient to clearly and convincingly establish that fact. Doe v. Heim, 89 N.M. at 620-21, 555 P.2d at 920-21. In my opinion we should be engaging in a substantial evidence review to determine if the trial court erred in finding by clear and convincing evidence that Bookert failed to rebut the presumption of abandonment. Instead, the majority reweighs the evidence, disregards clear evidence that Bookert failed to attend to his parental obligations, and assumes facts that are not in evidence.
The crucial issue is thus whether substantial evidence supports the trial court’s conclusion that Bookert’s conduct in not visiting or seeking visitation with J.J.B. caused the disintegration of the parent child-relationship. I note initially that Bookert did not, as asserted by the majority, first request visitation with his son on May 15, 1991. The motion hearing on May 15 concerned a motion for custody by Bookert and J.J.B.’s mother. In making the motion, the mother’s attorney said that they were asking for “custody, or at least visitation.” This was the only mention of the word (or concept) “visitation” during the hearing. The Roths’ counsel never once mentioned visitation, and Judge Brennan did not mention visitation in his ruling on custody (in favor of the Roths). Neither Bookert (who was pro se) nor the mother’s attorney requested visitation at the time of the adverse custody ruling. The fact is that Bookert never sought visitation with J.J.B. until his attorney made a motion for visitation on July 1, 1991.
The following evidence is clear: J.J.B. lived with Bookert until November 14, 1990, when J.J.B.’s mother left Bookert in Tucson and moved to Albuquerque. Bookert had a brief visit with the child on December 6, 1990. He then had absolutely no contact with the child until November 24,1991. Bookert’s first attempt at getting visitation with J.J.B. was made on July 1, 1991. He thus made no attempt to contact the child for a period of some seven and one-half months, and did not contact the child for a period of almost one year. The fact that Bookert made no attempt to contact or communicate with J.J.B. for an extended period of time is substantial evidence that his conduct caused the disintegration of the parent-child relationship.
The majority appears to place the responsibility for the disintegration of the parent-child relationship on the Roths. It states in Section V that “Bookert made all reasonable efforts under the circumstances to regain custody of his son, and also to maintain his relationship with his son while the child was in the custody of the Roths.” (Emphasis added). Those efforts consist of a demand letter dated March 14, 1991, from Bookert and the mother’s attorney requesting that the Roths return the child to the custody of his parents, and a motion for visitation filed July 1, 1991. The opinion concludes that, because the Roths ignored the request for custody and fought the motion for visitation, that any earlier requests would also have been futile.
In my opinion the majority assumes facts that are not in evidence when it asserts that any attempt by Bookert to get visitation would have been unsuccessful, and that therefore it was the Roths’ fault that the relationship of Bookert and J.J.B. was destroyed. Had the Roths successfully resisted Bookert’s early and frequent attempts at visitation, it could be said that they were responsible for the breakdown of the relationship. This was not the case, however. Once a proper motion for visitation was made, on July 1, 1991, it was granted by the trial court.
Moreover, the fact that Bookert attempted to get custody of J. J.B. and the Roths resisted those attempts is irrelevant as to whether Bookert abandoned J.J.B. under Section 32-1-54(B)(4) (Repl.Pamp.1989). His efforts at gaining custody show a subjective intent not to abandon the child; however, the determinative factor for abandonment is not the existence of “wishful thoughts and hopes for the child,” but rather “how well the parents have discharged their parental responsibilities.” Doe v. Heim, 89 N.M. at 618, 555 P.2d at 918 (rejecting subjective intent standard as evidentiary basis for determining if abandonment has occurred). A parent’s failure to contact or communicate with his or her child for an extended period of time is objective evidence that the parent is not properly discharging parental responsibilities.
I believe that the evidence supports the trial court’s conclusion that Bookert was responsible for the disintegration of his relationship with J.J.B. Bookert failed to contact J.J.B. for a year and did not even attempt to contact or communicate with him for over seven months. No one stopped Bookert from seeing, or attempting to see his child; thus his conduct was found to be the cause of the disintegration of the parent-child relationship. The fact that Bookert indicated a continuing interest in obtaining custody seems to be the determining factor for the majority in rejecting abandonment. Bookert’s desire to obtain custody, however, is only evidence of his subjective intent. In my opinion, what the majority has done is to adopt the subjective intent standard for abandonment by relying on Bookert’s interest in obtaining custody to show that his conduct was not the cause of the disintegration of the relationship. This standard has been rejected by our Court of Appeals and many other courts — and rejected explicitly in Section IV of the majority opinion itself. On the other hand, Bookert’s objective manifestations of intent include his failure to seek or obtain visitation with his child for so long as to allow their relationship to disintegrate. By applying the objective standards established by the legislature, there is, in my opinion, substantial evidence to clearly and convincingly show that Bookert abandoned J.J.B. and that his parental rights were subject to termination. See Section 32-1-54 (Repl.Pamp.1989).
On remand, the trial court will be required to determine, in the best interests of J.J.B., who shall have his custody. NMSA 1978, § 32A-5-36(D) (Repl.Pamp.1993). It appears to me that this question has already been decided by the trial court. J.J.B.’s guardian ad litem argues that it is clearly in J.J.B.’s best interests to remain with the Roths, and the trial court has already weighed J.J.B.’s interests in deciding to terminate Bookert’s parental rights. It serves no purpose to overturn the factual findings of the trial court in this case. We should defer to the judgment of the trial court and allow the Roths’ petition of adoption to be granted. We should simply reverse the Court of Appeals on the question whether the trial court need make a separate finding of unfitness before terminating parental rights. The majority opinion being otherwise, I respectfully dissent.