Debbie L. v. Galadriel R.

Certiorari Denied, No. 31,417, December 19, 2008

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-007

Filing Date: October 29, 2008

Docket No. 27,101

IN THE MATTER OF THE
GUARDIANSHIP OF VICTORIA R.,
a Child.

DEBBIE L. and FRANCISCO L.,

Petitioners-Appellees,

v.

GALADRIEL R.,

Respondent-Appellant.

and

JEREMY V.,

Respondent.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Sandra A. Price, District Judge

Finch & Olson, P.A.
Jennifer L. Olson
Farmington, NM

for Appellees
Caren I. Friedman
Santa Fe, NM

for Appellant

1
 OPINION

ALARID, Judge.

{1} This guardianship proceeding arises out of a dispute among Petitioners, Debbie and
Franciso L. (Petitioners), Respondent Galadriel R. (Mother), and Respondent Jeremy V.
(Father) over who will have primary responsibility for raising a young child, Victoria R.
(Child). Mother and Father are the biological parents of Child. Petitioners are adult
caregivers with whom Child has lived for a substantial part of her young life.

{2} This case presents a potentially heartbreaking fact pattern: Mother and Father
conceive Child during a casual sexual encounter; after birth, Child lives with Mother, while
Father lives apart and has limited contact with Child; Mother, who is struggling with
emotional problems, leaves Child with Petitioners, who assume day-to-day responsibilities
for Child’s care; because the placement is informal, amicable, and clearly successful in
meeting Child’s needs, the State does not become involved in overseeing Child’s welfare,
and a court is never called upon to enter a formal guardianship or custody order during the
period of Mother’s parental incapacity; Child lives with Petitioners for a significant period
of her young life, forming a stable parent-child bond with Petitioners; later, Mother,
asserting that she is now willing and able to care for Child, demands that Petitioners
immediately return Child to her; Petitioners refuse to return Child and institute legal
proceedings seeking legal recognition of their relationship with Child; ultimately, a court
must decide whether Child should remain with Petitioners, whom Child views as her actual
parents, or should be returned to Mother, who hopes to re-establish a parent-child
relationship with Child.

{3} The district court, applying the Kinship Guardianship Act (KGA), NMSA 1978, §§
40-10B-1 to -15 (2001), appointed Petitioners as Child’s guardians and awarded Petitioners
all legal rights and duties of a parent with the exception of the right to consent to Child’s
adoption; the district court awarded Mother substantial visitation. Mother appeals. We
affirm.

DISCUSSION

{4} Prior to the enactment of the KGA, district courts had limited statutory authority to
appoint guardians for children. In re Guardianship of Ashleigh R., 2002-NMCA-103, ¶¶ 8-
11, 132 N.M. 772, 55 P.3d 984; see Roberts v. Staples, 79 N.M. 298, 300, 442 P.2d 788, 790
(1968) (addressing common-law limitations on standing of third parties to seek custody of
child through habeas corpus petition). The KGA establishes procedures and substantive
standards for effecting legal relationships between children and adult caretakers who have
assumed the day-to-day responsibilities of caring for a child. The KGA grants standing to
file a petition for a kinship guardianship to three categories of “caregiver.” Section 40-10B-
5(A). The present case involves a KGA petition based on a “kinship caregiver” relationship.
The KGA defines “caregiver” as “an adult, who is not a parent of a child, with whom a child

2
resides and who provides that child with the care, maintenance and supervision consistent
with the duties and responsibilities of a parent of the child.” Section 40-10B-3(A). The
KGA defines “kinship” as “the relationship that exists between a child and a relative of the
child, a godparent, a member of the child’s tribe or clan or an adult with whom the child has
a significant bond.” Section 40-10B-3(C) (emphasis added).

{5} The KGA provides that:

A. Upon hearing, if the court finds that a qualified person seeks
appointment, the venue is proper, the required notices have been given, the
requirements of Subsection B of this section have been proved and the best
interests of the minor will be served by the requested appointment, it shall
make the appointment. . . .

B. A guardian may be appointed pursuant to the Kinship
Guardianship Act . . . only if:

(1) a parent of the child is living and has consented in writing
to the appointment of a guardian and the consent has not been withdrawn;
[or]

(2) a parent of the child is living but all parental rights in
regard to the child have been terminated or suspended by prior court order;
or

(3) the child has resided with the petitioner without the parent
for a period of ninety days or more immediately preceding the date the
petition is filed and a parent having legal custody of the child is currently
unwilling or unable to provide adequate care, maintenance and supervision
for the child or there are extraordinary circumstances; and

(4) no guardian of the child is currently appointed pursuant to
a provision of the Uniform Probate Code.

Section 40-10B-8.

{6} We begin our analysis by noting what is not at issue. Mother does not argue that the
requirements of Section 40-10B-8(A), including the requirement that Petitioners be qualified
persons to bring a KGA action and that Child’s best interests will be served by the
guardianship, have not been met. Petitioners do not claim that Mother is unwilling or unable
to provide Child with adequate care, maintenance, and supervision. There is no dispute that
Section 40-10B-8(B)(2) is inapplicable: neither Mother’s nor Father’s parental rights have
been terminated or suspended by court order. There is no dispute that Section 40-10B-
8(B)(4) is inapplicable: no guardian is currently appointed for Child under the Probate

3
Code. Further, we do not understand Mother to be arguing that the district court’s findings
of fact are not supported by substantial evidence; rather, to the extent Mother takes issue
with the district court’s findings of fact, we understand Mother to be arguing that we should
view the evidence in a light more favorable to Mother. Since it is not our function as an
appellate court to re-weigh the evidence, and in view of the absence of a proper challenge
to the sufficiency of the evidence supporting specific findings, see generally Rule 12-
213(A)(4) NMRA (specifying manner of attacking finding as not supported by substantial
evidence), Mother is bound by the facts as found by the district court. In re Adoption of Doe,
98 N.M. 340, 344, 648 P.2d 798, 802 (Ct. App. 1982).

{7} As Mother notes in her brief in chief, “[t]he issue in the trial court essentially boiled
down to whether ‘extraordinary circumstances’ within the meaning of the [KGA] justified
the appointment of guardians for [Child].” On appeal, Mother argues that extraordinary
circumstances within the meaning of Section 40-10B-8(B)(3) are not present, and therefore
the district court should have applied the parental rights doctrine, awarding custody to
Mother as Child’s fit biological parent without reaching the question of whether appointment
of Petitioners as KGA guardians serves Child’s best interests. To the extent that Mother’s
arguments require us to decide what the Legislature meant by “extraordinary circumstances,”
her arguments present a question of statutory construction subject to de novo review; to the
extent her arguments require us to apply this standard to the historical facts found by the
district court, Mother’s arguments present a mixed question of fact and law, which also is
subject to de novo review. See State v. Attaway, 117 N.M. 141, 144-46, 870 P.2d 103, 106-
08 (1994), modified on other grounds by State v. Lopez, 2005-NMCA-018, ¶¶ 13-20, 139
N.M. 9, 116 P.3d 80.1

{8} This appeal is the first case in which we have been called upon to review a judgment
appointing guardians under the KGA. Previously, in In re Ashleigh, a guardianship-custody
case that arose before the effective date of the KGA and therefore was not controlled by the
KGA, we equated extraordinary circumstances with “‘grave reasons’ approaching, but not
necessarily reaching, those required for termination of parental rights.” 2002-NMCA-103,
¶ 25 (citation omitted). Upon further reflection, we note significant differences between
termination proceedings and the KGA proceedings that were not considered in In re
Ashleigh. First, nothing in the KGA suggests that the KGA may be invoked to terminate a
parent’s rights. Second, unlike the termination of parental rights, a KGA guardianship is
revocable. Section 40-10B-11 allows a parent to move to revoke a KGA guardianship upon
a showing of a change in circumstances coupled with a showing that revocation of the
guardianship is in the best interests of the child. Third, the KGA expressly authorizes a
district court to order that the parent retain parental rights and duties. Section 40-10B-13(B).

1
Mother, citing Santosky v. Kramer, 455 U.S. 745 (1982), asserts that the district
court violated her due process rights by appointing Petitioners KGA guardians. Mother’s
constitutional argument was not preserved in the district court, and it has not been
adequately developed in this Court. We therefore decline to reach it.

4
Thus, as we understand the KGA, the incidents of a KGA guardianship may be narrowly
tailored to the circumstances of a given case, depending on the child’s needs and the parent’s
capabilities. Fourth, the KGA provides that a district court retains continuing jurisdiction
over a KGA guardianship. Section 40-10B-14. As a parent reestablishes his or her
relationship with the child, the parent may invoke the district court’s continuing jurisdiction
to seek a greater share of parental rights and responsibilities. Our Legislature did not intend
a KGA guardianship to completely and irrevocably sever the relationship between a parent
and the child, nor did it intend for a KGA guardianship to be a one-size-fits-all remedy. In
determining what the Legislature meant by “extraordinary circumstances” in the context of
the KGA, we must distinguish the unique provisions of the KGA and the malleable nature
of a guardianship established under it from other contexts, in particular, termination of
parental rights. Incorporation into the KGA of a substantive standard designed to prevent
unjustified termination of parental rights—the most extreme legal intrusion into a parent-
child relationship—is not necessary or appropriate in cases brought under the KGA. Cf.
Tailor v. Becker, 708 A.2d 626, 628-29 (Del. 1998) (upholding Delaware “stepparent
custody” statute against substantive due process challenge; observing that awarding custody
to a stepparent over the objection of the surviving biological parent “does not work the
‘unique kind of deprivation’ that follows when the parent-child relationship is totally and
irrevocably severed through a decision terminating parental rights” (footnote omitted)); In
re Guardianship of Doe, 101 P.3d 684, 687 (Haw. Ct. App. 2004) (observing that “a
guardianship of a minor is neither absolute nor irrevocable”); see also Clark v. Wade, 544
S.E.2d 99, 105-05, 107-08 (Ga. 2001) (noting distinction for purposes of constitutional
analysis between termination of parental rights and third party custody cases; concluding that
custody may be awarded to third party absent finding of parental unfitness).

{9} The statutory term “extraordinary circumstances” must be read against two bodies
of law. The first is the common-law parental rights (also known as the parental preference)
doctrine. Shorty v. Scott, 87 N.M. 490, 493, 535 P.2d 1341, 1344 (1975). Applied to a
custody dispute between a biological parent and a third party, the parental rights doctrine is
said to create a presumption that the best interests of the child2 will be served by granting

2
This formulation of the parental rights doctrine, which refers to the best interests of
the child, is easily misunderstood. The substantive standard governing a custody dispute
between a non-parent third party and a parent is not the best interests of the child in the
welfare-maximizing sense that the term is used in custody disputes between parents. In a
custody dispute between a biological parent and a third party, the concern is not with who
will provide the child with better care, but rather, whether the biological parent is willing
and able to provide her child with adequate care. Indeed, the very point of the parental rights
doctrine is to prevent a court from basing a custody decision on evidence that the third party
might, in fact, better provide for the child than the biological parent. See Reno v. Flores, 507
U.S. 292, 304 (1993) (“Even if it were shown, for example, that a particular couple desirous
of adopting a child would best provide for the child’s welfare, the child would nonetheless
not be removed from the custody of its parents so long as they were providing for the child

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custody to the natural parent. Id. However, the presumption arising from the parental
preference doctrine is “never conclusive” and may be overcome by a showing of either
“serious parental inadequacy” or “extraordinary circumstances.” In re Adoption of J.J.B.,
119 N.M. 638, 652, 894 P.2d 994, 1008 (1995). Under In re J.J.B., extraordinary
circumstances supplement “traditional parental unfitness criteria” and address “unique
situations that are beyond the usual unfit-parent criteria and are not expressly covered by
statute or case law.” Id. We will assume that in enacting the KGA, the Legislature
employed the term extraordinary circumstances against the background of our Supreme
Court’s discussion of the parental rights doctrine in In re J.J.B. See State v. Morrison, 1999-
NMCA-041, ¶ 9, 127 N.M. 63, 976 P.2d 1015 (observing that “[i]n the absence of evidence
to the contrary, we interpret statutes using the common law concept ‘most likely intended
by the legislature to be embodied in the statute’” (quoting State v. Yarborough, 1996-NMSC-
068, ¶ 11, 122 N.M. 596, 930 P.2d 131)). Extraordinary circumstances for purposes of the
KGA are circumstances other than the parent’s current3 inability or unwillingness to provide
the child with adequate care, maintenance, and supervision that justify appointing guardians
for a child over the objections of the child’s parents.

{10} The second body of law we must consider is constitutional law. There are
constitutional limits on a state’s authority to award custody of a child to a third party over
the objection of a fit biological parent.4 In re Interest of E.L.M.C., 100 P.3d 546, 552, 562

adequately.” (emphasis in original)). It more accurately reflects the actual reasoning of a
court resolving a third-party custody case to say that (1) the law presumes that parents are
willing and able to adequately care for their child, and (2) parents who are willing and able
to adequately care for their child cannot be deprived of custody because some third person
is better able to care for their child.
3
Where at the time a KGA petition is filed the parent “is currently unwilling or
unable to provide adequate care, maintenance and supervision for the child” there will be no
need to consider whether extraordinary circumstances are present: no court will transfer
custody of a child to a parent who demonstrably is unwilling or unable to care for her child.
The alternative extraordinary circumstances sub-prong of Section 40-10B-3(B)(3) is
particularly likely to be implicated in “reunification” cases—cases where the parent
experienced a past period of parental unfitness, but where as of the time the KGA petition
is brought the parent asserts that she has overcome the conditions that rendered her unwilling
or incapable of caring for her child. In such cases the court must decide whether the current
consequences to the child of the parent’s past unfitness amount to extraordinary
circumstances.
4
The United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 65
(2000), has led courts and commentators to reexamine the issue of how much deference to
a parent’s childrearing decisions is required by the Constitution. Troxel, a grandparent
visitation case, fragmented the Supreme Court, resulting in six opinions—a four justice

6
(Colo. Ct. App. 2004) (applying strict scrutiny; upholding order awarding joint parental
responsibility to biological mother and her former domestic partner). The common-law
parental preference doctrine itself “seeks to give great deference to the constitutional rights
of parents to raise their children while at the same time recognizing that when there is a
conflict between those rights and the equally important constitutional rights of children, the
latter will not automatically be subjugated to the former.” 2 Sandra Morgan Little, Child
Custody & Visitation Law and Practice § 11.03[1] (2008). In construing the KGA, we will
assume that the Legislature intended the extraordinary circumstances standard to be
sufficiently demanding to protect the constitutional rights of biological parents who oppose
KGA petitions. See Hughes v. Timberon Water & Sanitation Dist., 1999-NMCA-136, ¶ 10,
128 N.M. 186, 991 P.2d 16 (observing that “[a]lthough we rest our decision in this case on
our interpretation of the statutory language, not constitutional doctrine, it is appropriate for
a court interpreting a statute to consider whether a particular interpretation is likely to create
problems arising from constitutional doctrine”).

{11} In considering the constitutional implications of a KGA guardianship, we must bear
in mind that the subject of this contested KGA proceeding—Child—is herself a “person” for
purposes of the Fourteenth Amendment. See Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503, 511 (1969). KGA guardianship cases do not present a “bipolar” contest
between parents and the party invoking the authority of the state to override the decision of
the child’s parents: “[t]here is at a minimum a third individual, whose interests are
implicated in every case to which the statute applies—the child.” Troxel, 530 U.S. at 86
(Stevens, J., dissenting) (referring to Washington third-party visitation statute). “Although
parents have certain rights regarding their children, the children also have certain
fundamental rights which often compete with the parents’ interests.” Oldfield v. Benavidez,
116 N.M. 785, 790, 867 P.2d 1167, 1172 (1994). “Children, too, have fundamental
rights—including the fundamental right to be protected from neglect and to ‘have a

plurality, two concurring opinions, and three dissenting opinions. Only Justice Thomas, in
a concurring opinion, relied upon a fundamental rights-strict scrutiny analysis. Troxel, 530
U.S. at 80 (Thomas, J., concurring). Some authorities, noting that only Justice Thomas
expressly relied upon textbook fundamental rights-strict scrutiny analysis, have read Troxel
as moving away from the rigid strict scrutiny mode of analysis of state legislation that
impinges on parents’control over the upbringing of their children. In re Marriage of
O’Donnell-Lamont, 91 P.3d 721, 730 (Ore. 2004) (observing that a majority of the Troxel
Court relied upon a standard that is “undefined but less exacting” than the strict scrutiny
standard cited by Justice Thomas); David D. Meyer, Constitutional Pragmatism for a
Changing American Family, 32 Rutgers L.J. 711, 714 (2001) (stating that Troxel amounts
to “an implicit rejection of strict scrutiny”). For a probing examination of the development
of substantive due process protection of parental rights see Susan E. Lawrence, Substantive
Due Process and Parental Rights: From Meyer v. Nebraska to Troxel v. Granville, 8 J.L. &
Fam. Stud. 71 (2006) (tracing constitutional protection of parental rights from its genesis in
Lochner-era substantive due process cases).

7
placement that is stable [and] permanent.’ Children are not simply chattels belonging to the
parent, but have fundamental interests of their own that may diverge from the interests of the
parent.” In re Jasmon O., 878 P.2d 1297, 1307 (Cal. 1994) (in bank) (alterations in original)
(citations omitted). “[W]e would be remiss if we did not also reiterate that ‘[a] child has
rights, too, some of which are of a constitutional magnitude.’” Clifford K. v. Paul S., 619
S.E.2d 138, 159 (W.Va. 2005) (citation omitted); see generally Suellyn Scarnecchia, A
Child’s Right to Protection from Transfer Trauma in a Contested Adoption Case, 2 Duke
J. Gender L. & Pol’y 41 (1995); David D. Meyer, The Modest Promise of Children’s
Relationship Rights, 11 Wm. & Mary Bill Rts. J. 1117 (2003). {12} Our Legislature
clearly knows how to draft a statute mandating a strict application of the parental rights
doctrine, as for example in NMSA 1978, Section 40-4-9.1(K) (1999), addressing third party
custody in the context of dissolution of marriage. Although the Legislature in enacting the
KGA expressed a preference for having children raised by their biological parents, Section
40-10B-(2)(A), there is no provision in the KGA comparable to Section 40-4-9.1(K).
Section 40-4-9.1(K) is tailored to the context of the breakup of a pre-existing family through
divorce. As the present case illustrates, the child who is the subject of a KGA proceeding
may never have lived in a traditional family and may not have an established parent-child
relationship with either of its biological parents.

My principal concern is . . . the assumption that the parent or parents
. . . have always been the child’s primary caregivers and that the third parties
. . . have no legitimate and established relationship with the child. That idea,
in turn, appears influenced by the concept that the conventional nuclear
family ought to establish the . . . standard for every domestic relations case.
As we all know, this is simply not the structure or prevailing condition in
many households. For many boys and girls a traditional family with two or
even one permanent and caring parent is simply not the reality of their
childhood.

Troxel, 530 U.S. at 98 (Kennedy, J., dissenting) (citation omitted). A parental preference
tailored to the breakup of a nuclear family is not necessarily appropriate in contexts
addressed by the KGA. We conclude that the Legislature understood and intended that in
applying “extraordinary circumstances” in the context of KGA guardianship proceedings,
courts should not be limited by the parental rights doctrine to the same degree as in divorce
proceedings, and that courts would have discretion to carefully balance the constitutionally
protected interests of biological parents in re-establishing a parent-child relationship with
their biological offspring against the important interests of children in maintaining stable and
nurturing relationships with third-party caregivers who functioned as parents during the
natural parents’ incapacity or absence. Cf. In re Doe, 98 N.M. at 344, 648 P.2d at 802
(acknowledging the Legislature’s authority to modify the “primacy of parental rights”
approach of Shorty in favor of the welfare and needs of children who have come to look to
third-party caregivers “for all of the love, affection, instruction, and physical needs that the
natural parents have failed to provide”).

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{13} In the present case, the district court made the following findings:

1. The minor child at issue . . . was born July 14, 1999.
....

9. Beginning when [Child] was about one and a half years old,
[Mother] began to leave [Child] in the care of the Petitioners.

10. From that time, [Mother] continued to leave [Child] with the
Petitioners for increasing periods of time.

11. By the time [Child] was three and a half years old she was
living with the Petitioners for more than half of the time.

12. In the Spring of 2003, [Mother] moved to Colorado, leaving
[Child] to live full-time with the Petitioners in Aztec, New Mexico.

13. [Mother] expressed to the Petitioners that [Child’s] placement
with them would be permanent and that she would not seek [Child’s] return
to her home.

14. Prior to the filing of this action, [Mother] indicated to the
Petitioners that they could adopt [Child].

15. After the Spring of 2003 and before this action was filed in
November 2004, [Mother’s] visits and telephone calls with [Child] were
infrequent.

....

19. The Petitioners have provided all of [Child’s] support
(housing, clothing, food, etc.) for most of her life.

20. The Petitioners potty trained [Child].

21. The Petitioners enrolled [Child] in school.

22. The Petitioners provided [Child] medical care for most of her
life.

23. [Child] has had her own room in the Petitioners’ home most
of her life.

24. The Petitioner Francisco L[.] is the only father that [Child]

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 knows.

25. [Child] is primarily bonded to the Petitioners and considers
them her parents.

26. [Child] refers to the Petitioners as “mom” and “dad.”

27. [Child] considers the Petitioners and their extended family her
family.

28. The Petitioners have provided [Child] with stability for most
of her life.

29. The Petitioners will continue to provide [Child] with stability.

30. [Mother] has not paid support for [Child] to the Petitioners.

31. [Child] would experience a significant degree of depression if
removed from the primary care of the Petitioners.

Relying on these findings, the district court concluded that “[t]here is a significant and
important bond between [Child] and the Petitioners”; “Petitioners have provided and will
continue to provide stability to [Child]”; “[t]here is a substantial likelihood of serious
psychological and emotional harm if [Child] is removed from the home of the Petitioners and
placed with [Mother]”; “[i]t is in the [Child’s] best interests to award a kinship guardianship
of her to the Petitioners”; and “there are extraordinary circumstances that warrant the grant
of a kinship guardianship.”

{14} The district court’s findings implicate the crucial distinction between biological
parentage and psychological parentage. In re J.M.P., 528 So. 2d 1002, 1013-14 (La. 1988)
(discussing psychological parent concept). Psychological parents5 are the adult caregivers
who meet the child’s emotional and physical needs on a day-to-day basis for a sufficient
period of time that the child comes to view the adult caregivers as the child’s actual parents.
Middleton v. Johnson, 633 S.E.2d 162, 168 (S.C. Ct. App. 2006); American Law Institute,

5
There is some variation in the terminology used to describe a psychological parent-
child relationship. In re Parentage of L.B., 122 P.3d 161, 167-68 n.7 (Wash. 2005). Some
authorities employ the term “de facto parent” or “in loco parentis” to describe this
relationship. Id. In deference to our Legislature, which has employed the term
“psychological parent” in the Children’s Code, NMSA 1978, §§ 32A-4-28(B)(3)(c) (2005)
and 32A-5-15(B)(3)(c) (1995) (incorporating “psychological parent” concept as an element
of statutory presumptive abandonment), we will employ the term psychological parent.

10
Principles of the Law of Family Dissolution § 2.03(1)(c) (2002) (defining “de facto parent”);
Joseph Goldstein, et al., The Best Interests of the Child: The Least Detrimental Alternative
9 (1994) (“Unlike adults, children have no psychological conception of blood-tie
relationships until quite late in their development. . . . What matters to them is the pattern
of day-to-day interchanges with the adults who take care of them and who, on the strength
of such interactions, become the parent figures to whom they are attached.”). Obviously, the
optimal situation occurs when a child’s biological parents build upon the opportunity
presented by biological parentage to create a stable, nurturing relationship that meets the
child’s physical and emotional needs. Equally obvious, not all biological parents seize the
opportunity presented by biological parentage, with the consequence that significant
numbers of children have psychological parents who are not their biological parents. A
principal concern motivating courts and legislatures to give legal recognition to
psychological parent-child relationships is the belief that, apart from heart-wrenching short-
term emotional loss, depriving a child of an established, nurturing psychological parent-child
relationship is seriously detrimental to the child’s long-term emotional health and
development. In re E.L.M.C., 100 P.3d at 559-61 (collecting authorities); see also David E.
Arrendondo and Leonard P. Edwards, Attachment, Bonding, and Reciprocal Connectedness:
Limitations of Attachment Theory in the Juvenile and Family Court, 2 J. Center for Families,
Child. & Cts. 109, 112 (2000) (arguing for use of the term “reciprocal connectedness” to
describe healthy, two-way bonding between a child and the child’s adult caregivers;
asserting that such a relationship is “essential for the normal development of a child’s
capacities for empathy, compassion, and other higher-level human emotions and social
skills”). Although the district court did not employ the term “psychological parent,” its
findings are consistent with this well-established concept: Child has bonded with
Petitioners, whom Child views as her actual parents, to the extent that Child will experience
serious psychological and emotional harm if her relationship with Petitioners is terminated.6

{15} Notwithstanding continued adherence to some form of the parental preference

6
Some courts have adopted a four-prong test for determining whether a psychological
parent-child relationship is present. E.g., In re E.L.M.C., 100 P.3d at 560. This test is
designed to strictly limit the class of persons who qualify as psychological parents, thereby
protecting biological or other legal parents from the burden of defending against claims by
baby sitters, nannies, neighbors, relatives, adult friends, or other third parties who might seek
to establish legal rights with respect to a child. Id. It appears that even under the stringent
four-prong test set out in In re E.L.M.C., Petitioners would qualify as psychological parents:
(1) Mother consented to and fostered the formation of a parent-like relationship between
Petitioners and Child; (2) Petitioners and Child lived together in the same household for a
substantial period of time; (3) Petitioners assumed the obligations of parenthood by taking
significant responsibility for Child’s care, education, and development, including
contributing towards Child’s support, without expectation of financial compensation; and
(4) Petitioners have established a bonded, parental relationship with Child, who views
Petitioners as her mother and father.

11
doctrine, a growing number of jurisdictions, whether by judicial decision or statute, now
provide legal recognition and protection to psychological parent-child (or equivalent)
relationships. Kinnard v. Kinnard, 43 P.3d 150, 151 (Alaska 2002) (stepparent custody);
Riepe v. Riepe, 91 P.3d 312, 315 (Ariz. Ct. App. 2004) (stepparent visitation); Robinson v.
Ford-Robinson, 208 S.W.3d 140, 144 (Ark. 2005) (stepparent visitation); Erika K. v. Brett
D., 75 Cal. Rptr. 3d 152, 154 (Ct. App. 2008) (godmother custody); In re E.L.M.C., 100 P.3d
at 562 (former domestic partner custody); Fish v. Fish, 939 A.2d 1040, 1044 (Conn. 2008)
(aunt custody); Tailor, 708 A.2d at 629-30 (stepparent custody); Stockwell v. Stockwell, 775
P.2d 611, 613-14 (Idaho 1989) (stepparent custody); Francies v. Francies, 759 N.E.2d 1106,
1109 (Ind. Ct. App. 2001) (grandmother custody); In re Guardianship of Knell, 537 N.W.2d
778, 783 (Iowa 1995) (stepparent permanent guardianship); Rideout v. Riendeau, 761 A.2d
291 (Me. 2000) (grandparent visitation); Youmans v. Ramos, 711 N.E.2d 165, 167 (Mass.
1999) (aunt-former guardian visitation); Mason v. Dwinnell, 660 S.E.2d 58, 62 (N.C. Ct.
App. 2008) (former domestic partner custody); Mansukhani v. Pailing, 318 N.W.2d 748, 749
(N.D. 1982) (grandparent custody); V.C. v. M.J.B., 748 A.2d 539, 541-42 (N.J. 2000)
(former domestic partner visitation); In re O’Donnell-Lamont, 91 P.3d at 724, 730
(grandparent custody); T.B. v. L.R.M., 786 A.2d 913, 914 (Pa. 2001) (former domestic
partner visitation-partial custody); Rubano v. DiCenzo, 759 A.2d 959, 961-62 (R.I. 2000)
(former domestic partner visitation); Middleton, 633 S.E.2d at 164, 168 (former domestic
partner visitation); Paquette v. Paquette, 499 A.2d 23, 25 (Vt. 1985) (stepparent custody);
In re L.B., 122 P.3d at 163-64, 167-68 n.7 (former domestic partner custody); Clifford K.,
619 S.E.2d at 144, 159 (former domestic partner custody); In re Custody of H.S.H.-K., 533
N.W.2d 419, 420 (Wis. 1995) (former domestic partner visitation); see also S.B.L. v. E.S.,
865 So. 2d 1214, 1219-20 (Ala. Civ. App. 2003) (applying Alabama rule that biological
parent who has voluntarily relinquished custody of child bear the burden of establishing that
transfer of custody back to biological parent will “materially promote the child’s best
interests”; upholding decision of trial court declining to order transfer of seven-year-old
child from home in which he has lived most of his life; noting evidence that child viewed
third-party custodians as his “psychological” parents); In re Custody of T.W., 851 N.E.2d
881, 882-83 (Ill. Ct. App. 2006) (applying Illinois statute granting standing to a third party
to seek custody of child where child is not in the physical custody of either of her parents;
upholding award of custody to maternal grandparents with whom the child had a close
relationship and with whom the child had lived for most of her life); Osburn v. Roberts, 169
P.2d 293, 294 (Okla. 1946) (upholding decision of trial court denying father’s application
for writ of habeas corpus seeking custody of three-year-old child and allowing the child to
remain in the custody of the child’s aunt and uncle who had raised the child from infancy
following death of the child’s mother; observing that “when asked to take the custody from
those who have for a considerable period of time nurtured and cared for the child and to
restore it to the parent, it is proper for the courts to consider the ties of love and confidence
that have grown up between the child and its foster parents and whether it is best for the
child not to disturb that relationship”); C.B. v. M.M.C., 2006 WL 1229643, 1 (Minn. Ct.
App. May 9, 2006) (unpublished) (applying Minnesota de facto custodian statute; upholding
award of custody to uncle and paternal aunt). Older New Mexico cases also support
recognition of psychological parentage. Cook v. Brownlee, 54 N.M. 227, 230, 220 P.2d

12
378, 381 (1950) (upholding decision of trial court finding that best interests of the child
would be served by allowing the teenaged child to remain in custody of maternal grandfather
following death of mother rather than returning the child to father with whom the child was
barely acquainted ); Pra v. Gherardini, 34 N.M. 587, 588, 286 P. 828, 829 (1930) (upholding
dismissal of biological mother’s habeas petition seeking custody of her nine-year-old son
following death of the child’s maternal aunt; noting evidence that mother had voluntarily
delivered the child as infant to aunt and uncle, that aunt and uncle had cared for the child “as
if he were their own son,” and that uncle and the child “have become greatly attached to and
love each other as father and the child”).

{16} Following the lead of these authorities, we hold that a showing that the KGA
petitioners have assumed the role of the psychological parents of the child who is the subject
of the KGA proceeding to the extent that the child will suffer a “significant degree of
depression” if the relationship with the psychological parents is abruptly terminated is
sufficient to rebut the presumption that the biological parent is acting in the child’s best
interests and to establish extraordinary circumstances within the meaning of the KGA.
Under such circumstances the State may override a rehabilitated biological parent’s demand
for immediate and exclusive custody of the child and may impose a KGA guardianship to
protect the child’s emotional well-being.

{17} Mother, citing In re Ashleigh, 2002-NMCA-103, ¶ 27, argues that if we uphold the
KGA guardianship, we are penalizing her for doing the right thing by voluntarily placing
Child with Petitioners. Mother’s argument misses the point: the State’s concern in
recognizing and protecting the parent-child relationship that arose between Petitioners and
Child is not to penalize Mother, but to deal with the present consequences of Mother’s past
incapacity in a way that minimizes the adverse effects on Child. “From a child’s point of
view, no absence from her parents is temporary if it exceeds the period of time during which
the child, always according to her age and stage of development, can preserve inner ties to
them.” Goldstein, supra, at 104-05. The inescapable fact creating the tension between
Child’s needs and Mother’s desire to immediately resume parenting is that, during the period
Mother was struggling with her own problems, Child moved on emotionally.

{18} We recognize that our reliance on the psychological-parent concept as the
justification for overriding Mother’s assertion of a right to immediate custody of Child has
constitutional implications. Substantive due process analysis requires a “‘careful
description’ of the asserted fundamental liberty interest.” Washington v. Glucksberg, 521
U.S. 702, 721 (1997) (citation omitted); Tailor, 708 A.2d at 628. Broad references to the
fundamental liberty interest of a biological parent, see, e.g., In re Ashleigh, 2002-NMCA-
103, ¶ 27, can be misleading if taken out of a particular factual or legal context. To our
knowledge, the United States Supreme Court has never recognized a fundamental right of
biological parents to engage in off-again, on-again parenting without regard to the effects
this pattern of parenting has on children. Indeed, the extent to which a biological parent’s
relationship with his or her offspring is afforded constitutional protection is directly related
to the degree to which the biological parent actually has assumed the responsibilities of

13
parenthood. See Lehr v. Robertson, 463 U.S. 248, 259-60 (1983) (noting “the clear
[constitutional] distinction between a mere biological relationship and an actual relationship
of parental responsibility”). “A parent’s rights with respect to [his or] her child have . . .
never been regarded as absolute, but rather are limited by the existence of an actual,
developed relationship with a child, and are tied to the presence or absence of some
embodiment of family.” Troxel, 530 U.S. at 88 (Stevens, J., dissenting). Significantly, for
purposes of constitutional analysis, the present case does not involve a third party invoking
the power of the State to break up an established family; rather, to the contrary, it involves
a biological parent asking the State to terminate a stable parent-child relationship that has
been demonstrably successful in meeting a child’s needs and that arose with the biological
parent’s consent and encouragement. See Clark, 544 S.E.2d at 108 (“[T]he custody cases
in this appeal do not involve a third party seeking to intrude upon an established parent-child
custodial relationship. Instead, they involve a biological parent seeking to gain custody from
a third party who has been responsible for the daily care of the child and already has
established a family unit for the child.”). Although Mother is entitled to a meaningful
opportunity to re-establish a parent-child relationship with Child and, if reasonably possible,
to eventually re-assume the role of Child’s primary caregiver, Mother does not have an
unqualified constitutional right to terminate at her whim the stable, nurturing parent-child
relationship that naturally and foreseeably arose between Child and Petitioners during the
period that Mother was unwilling or unable to care for Child. Youmans, 711 N.E.2d at 172-
73; cf. Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (upholding adoption under “best
interests of the child” standard against substantive due process challenge of biological father,
who had not been found to be unfit; observing that the adoption would not place child with
a new set of parents with whom the child had never lived, but rather would “give full
recognition to a family unit already in existence”).

{19} We note an alternative ground supporting the appointment of Petitioners as KGA
guardians: Father’s consent. Father was present at the evidentiary hearing on Petitioners’
petition. Father testified that he learned that Child was living with Petitioners when Child
was around two or two-and-a-half years old. Father testified that he had consented in writing
to the guardianship and that he believed that the guardianship would be in Child’s best
interest. Although Father has had little involvement in Child’s life other than through court-
ordered child support, his parental rights have not been terminated, and the district court did
not find him to be unfit. The district court found that Father consented to the guardianship
pursuant to Section 40-10B-8(B)(1). In view of Father’s consent to the guardianship, the
present proceeding is not a pure dispute between natural parents and third parties; it has
aspects of a dispute between two fit legal parents, one of whom maintains that placing the
child with a third party will be in the child’s best interest.7 Where two legal parents disagree
over where the best interests of their child lie, neither parent has an absolute, unilateral right
to decide where the child’s best interest lie. See Little, supra, § 10.03[2] (observing that

7
Father testified that due to his concerns about Mother’s capabilities, he would seek
custody of Child if Petitioners were not appointed as Child’s guardians.

14
“[a]s long as there is no court directive in effect, both parents continue to have equal rights
in the child”). The present case clearly is materially distinguishable from Shorty, 87 N.M.
at 491-92, 535 P.2d at 1342-43, where the sole surviving parent sought to regain custody
from the maternal grandmother, and from In re Ashleigh, 2002-NMCA-103, ¶ 11, where
both biological parents opposed appointing the maternal grandmother and her husband as
guardians.

{20} The judgment of the district court is affirmed.

THE SPECIAL CONCURRENCE

{21} There is no argument made here that Ashleigh was incorrectly decided; what is
disputed is that as a case decided under the probate code it should constitute binding
precedent in the first KGA case decided by this Court. Had Ashleigh actually analyzed the
KGA, ignoring the advisory nature of that analysis, perhaps there would be some
justification for recognizing it as the seminal case in the area. The entire discussion of this
new statute is contained in three sentences in Ashleigh, 2002-NMCA-103, ¶ 15. As far as
the case before us is concerned, the discussion of the KGA in Ashleigh is pure dicta. The
KGA deserves a case which fully analyzes its many provisions and recognizes that the
statute represents a significant change in the area of children’s rights; the KGA, as discussed
earlier, in keeping with the national trend in this area, recognizes the emergence of a new
body of children’s rights.

{22} IT IS SO ORDERED.

A. JOSEPH ALARID, Judge

JONATHAN B. SUTIN, Chief Judge (specially concurring)
LYNN PICKARD, Judge (specially concurring)

PICKARD, Judge (specially concurring).

{23} As we disagree with portions of Judge Alarid’s opinion as well as the expansive and
unnecessary rationales relied on to affirm, what is contained in this specially concurring
opinion is actually the opinion of this Court. See State v. Mann, 2000-NMCA-088, ¶ 2, 129
N.M. 600, 11 P.3d 564 (stating that when the lead opinion is the opinion only of the author
and when the two other judges disagree with that author, the lead opinion is the dissent and
the opinion of the Court is contained in the separate opinion); Gracia v. Bittner, 120 N.M.
191, 195, 900 P.2d 351, 355 (Ct. App. 1995) (stating that when a majority of the five justices
of the Supreme Court do not concur in the opinion, the opinion is not an opinion of the
Supreme Court); Baxter v. Gannaway, 113 N.M. 45, 47-48, 822 P.2d 1128, 1130-31 (Ct.

15
App. 1991) (stating that one-judge opinions are not precedential).

{24} We write separately because we believe that this case may be decided on the basis
of existing New Mexico law, without disregarding or implicitly overruling the recently
decided Ashleigh case, and without relying on authority from other jurisdictions that the
parties have not cited or relied on and that decides issues that are not before us and that are
not necessary to decide in this case. We also believe Mother to be making a substantial
evidence argument as a subsidiary argument to bolster her legal argument that the
extraordinary circumstances requirement was not met. We believe it is first necessary to
address Mother’s substantial evidence challenge to the historical facts before we address her
legal argument. See State v. Attaway, 117 N.M. 141, 144, 870 P.2d 103, 106 (1994)
(“Initially, the trial court must establish the historical facts that animate the transaction to be
evaluated.”). We reject both the substantial evidence and the legal arguments.

{25} Mother’s brief in chief argues that “[t]here was not clear and convincing evidence
to support a finding that extraordinary circumstances justified the establishment of a
guardianship,” and “as discussed above, there was not clear and convincing evidence of
extraordinary circumstances to justify application of the [KGA].” Mother’s reply brief then
spends several pages evaluating the evidence in the light most favorable to herself. On
appeal, we review the evidence in the light most favorable to support the findings, and we
disregard contrary evidence. See In re R.W., 108 N.M. 332, 334-35, 772 P.2d 366, 368-69
(Ct. App. 1989). Disregarding Mother’s recitation of the evidence favorable to her and her
explanation of why certain adverse inferences should not have been drawn against her, we
hold that there was sufficient evidence to support the findings of the district court recited in
the lead opinion in this case because Mother does not point to the evidence that arguably
supports those findings and show why that evidence was not sufficient. See Aspen
Landscaping, Inc. v. Longford Homes of N.M., Inc., 2004-NMCA-063, ¶ 28, 135 N.M. 607,
92 P.3d 53.

{26} Summarized, those findings are that (1) Mother left Child with Petitioners for
increasing amounts of time for close to three years and that amount of time became full time
for many months prior to the institution of these proceedings; (2) Mother’s contact with
Child became increasingly less frequent; (3) Mother told Petitioners that the placement
would be permanent, that she would not seek Child’s return, and that Petitioners could adopt
Child; (4) Child was primarily bonded to Petitioners and considered them her parents; (5)
Mother did not support Child; (6) Father consented to the guardianship; and (7) Child would
experience a significant degree of depression, characterized as serious psychological and
emotional harm, if she were removed from Petitioners. The legal question in this case is
whether these factors, taken together under all the circumstances of this case, amount to
extraordinary circumstances.

{27} Our Supreme Court established the requirement of extraordinary circumstances in
In re Adoption of J.B.B., 119 N.M. at 652, 894 P.2d at 1008. We elaborated on this
requirement in Ashleigh, 2002-NMCA-103, ¶¶ 24-32. Both J.B.B. and Ashleigh cited several

16
of the same out-of-state cases, and Ashleigh relied on several others, to give concrete
examples of what other states had held to be extraordinary circumstances and some of the
factors to consider when determining whether extraordinary circumstances are present.
Thus, to the extent that the Legislature used the words “extrordinary circumstances” in the
KGA, we believe it had extensive common-law antecedents on which it likely relied, as
Judge Alarid points out with his reference to the Morrison case.

{28} To the extent that we wrote in Ashleigh that extraordinary circumstances should be
equated with “‘grave reasons’ approaching, but not necessarily reaching, those required for
termination of parental rights,” 2002-NMCA-103, ¶ 25 (citation omitted), this statement was
not meant to be a holding, and was instead meant to convey to the trial courts the seriousness
of the proceeding. To be sure, a guardianship does not have the finality of a termination of
parental rights. See §§ 40-10B-12 (indicating that guardianship is not irrevocable); -13(B)
(authorizing the district court to order that a parent retain certain rights and duties); -14
(providing for continuing jurisdiction). Nonetheless, a guardianship, particularly the one
ordered in this case, represents very serious consequences for the parent. Accordingly, our
holding in Ashleigh was that an order of guardianship of this sort would require proof of “a
substantial likelihood of serious physical or psychological harm or serious detriment to the
child.” 2002-NMCA-103, ¶ 25 (internal quotation marks and citations omitted).

{29} The district court was aware of the Ashleigh case and considered that case in making
its findings. While characterizing this case as close, the district court ultimately made the
findings that resulted in the conclusion that Ashleigh was satisfied. Since much of Mother’s
argument against those findings and that conclusion depends on an erroneous view of the
evidence in this case, we may disregard much of Mother’s argument. Under the
circumstances where Mother left Child with Petitioners, leading to full-time care, for three
years and told them the placement would be permanent and they could adopt Child; where
Child was primarily bonded to Petitioners as her parents and would suffer significant
depression and thereby a substantial likelihood of serious harm and detriment; and where
Father consented to the guardianship and testified in such a way that the district court could
have found that these proceedings would be only the beginning of custody proceedings
concerning Child if the guardianship were not awarded, we hold that the district court
properly awarded the guardianship.

{30} As a result, we need not reach the issues of whether the KGA presents a different
standard of extraordinary circumstance for guardianships of lesser intrusiveness on parental
rights, what constitutional standards apply (particularly inasmuch as the lead opinion notes
that it is not reaching constitutional issues, supra n.1), and to what extent the doctrine of
psychological parentage impacts cases that are not before us. Judge Alarid’s views on these
matters may well be adopted some day. But they are not necessary to discuss in this case,
and we do not join in those views.

{31} For these reasons, we agree that the judgment should be affirmed.

17
 LYNN PICKARD, Judge

I CONCUR:

JONATHAN B. SUTIN, Chief Judge

Topics for Debbie L. v. Galadriel R., No. 27,101

CD Children
CD-KG Kinship Guardianship
CD-TR Termination of Parental Rights

EV Evidence
EV-SS Substantial or Sufficient Evidence

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