I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 11:31:33 2011.05.13
Certiorari Granted, May 3, 2011, No. 32,944
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2011-NMCA-040
Filing Date: March 14, 2011
Docket No. 30,041
FREEDOM C.,
Petitioner-Appellant,
v.
JULIE ANN D.,
Respondent,
and
BRIAN D. and PEGGY D.,
Petitioners-Appellees,
IN THE MATTER OF THE GUARDIANSHIP
OF PATRICK D., a child.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Michael T. Murphy, District Judge
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Edward Ricco
Jocelyn Drennan
Albuquerque, NM
for Appellant
The Pickett Law Firm, LLC
Mark L. Pickett
Las Cruces, NM
for Appellees
1
OPINION
SUTIN, Judge.
{1} Freedom C. (Father) appeals an order denying him custody of his and Julie Ann D.’s
(Mother) child (Child) and granting guardianship with legal and physical custody to
Mother’s parents, Brian D. and Peggy D. (Grandparents), pursuant to the Kinship
Guardianship Act (the Act), NMSA 1978, §§ 40-10B-1 to -15 (2001). Father complains that
the district court erred in applying the Act in what was a custody battle between Mother and
Father, when Mother lived with Grandparents, Mother alone agreed to the guardianship, and
Father objected to the guardianship. Father also complains that even if the Act were
applicable, the guardianship was ordered prematurely and with insufficient information. A
tangential complaint is that the court conditioned Father’s right of visitation with Child on
Father’s consent to complete disclosure of his immigration records. We hold that the district
court erred in granting Grandparents’ petition for guardianship under the Act because the
statutory prerequisites for granting the petition did not exist.
BACKGROUND
{2} In October 2008, Father filed a petition against Mother to determine custody and time
sharing relating to Child, who was born in September 2005. At the time of the petition,
Father had physical custody of Child, which he obtained approximately two weeks earlier
as a result of filing a domestic violence proceeding that was ultimately dismissed. Mother
filed an emergency motion regarding custody. Mother did not work full-time, and Father
was in the United States on a student visa with no permanent right to stay in the United
States. Following an evidentiary hearing in the district court, at which Father and Mother
were represented by counsel and testified, and Grandparents also testified, the court entered
an October 2008 order granting sole legal and physical custody of Child to Grandparents
with all authority to make all legal custody decisions for Child “[i]n the interim, until further
order of the [c]ourt.” The court set out visitation and other conditions for the parties. The
court also appointed a 706 expert to make recommendations in regard to legal and physical
custody and visitation. Father sought reconsideration of the visitation conditions. In January
2009, the district court entered a stipulated amended interim order regarding visitation.
{3} In early March 2009, proceeding pro se, Father filed a lengthy motion in which he
requested the court to act in various ways, including: (1) ordering Grandparents to be
brought in as parties, (2) awarding him overnight visitation and giving him more rights to
be involved in Child’s education, (3) considering alleged adverse effects on Child from the
existing detrimental circumstances, (4) awarding him temporary physical custody pending
the 706 expert’s evaluation and report, (5) ensuring that Child’s psychological and emotional
health needs were appropriately met, and (6) maintaining the status quo in several respects.
{4} Following a March 5, 2009, hearing on Father’s motion and other various motions,
the court entered an order and then an amended order determining that Grandparents “shall
2
retain temporary sole legal and primary physical custody,” granting Father certain visitation
and setting out certain visitation conditions, and joining Grandparents as parties to the
action. The court set out several requirements and admonished Mother and Father in certain
respects. The court found that Father’s immigration status was relevant to custody and
ordered Father to complete, execute, and provide certain release documents to Grandparents’
counsel in order for counsel to obtain from the appropriate governmental agencies Father’s
immigration records and status.
{5} In April 2009, Father was detained by immigration officials and confined by the
Department of Homeland Security in a detention facility in El Paso, Texas, pending
deportation, on the ground that he was subject to removal from the United States because his
student visa had expired. In July 2009, Grandparents filed a petition under the Act for
guardianship and custody of Child. In their petition, Grandparents alleged, among other
things, that: (1) Father was currently in federal custody awaiting deportation proceedings;
(2) Father was unable to provide adequate care, maintenance, and supervision of Child;
(3) Mother would consent to appointment of Grandparents as guardians of Child; (4) Child
had resided with Grandparents for a period of more than ninety days immediately preceding
the date of the petition; (5) Mother resided with Grandparents; (6) Grandparents assisted
Mother in the care of Child and also provided financial support; (7) Mother and Father
currently had legal custody of Child; and (8) the pending matter involved custody of Child.
Mother subsequently requested the court to grant her joint legal custody with Grandparents.
These motions were followed by Father’s motion for summary judgment in his favor on
Grandparents’ petition. In a hearing on August 31, 2009, on pending motions, at which
Father appeared telephonically because he was still detained, the court decided to defer
action on the custody issues because of Father’s continued detention and the question of how
his immigration status would be resolved. The court nevertheless heard Grandmother’s
recitation of the child’s custody status.
{6} Father was released from detention in September 2009, and he filed numerous
motions and other documents, including several relating to custody and to Grandparents’
petition seeking kinship guardianship under the Act. Among other assertions and challenges,
Father contended that the statutory requirements for a kinship-guardian appointment had not
been met, that detention could no longer be a reason to challenge his ability to care for Child,
that he was best suited to raise Child, that his constitutional rights as a fit biological parent
would be infringed by awarding guardianship to Grandparents, that the kinship-guardian
process was being used by Mother and Grandparents to prevent Father from gaining custody
of Child, and that the district court should await the 706 expert’s recommendations and
follow the recommendations.
{7} Following notices for a hearing on custody and on all motions, at an evidentiary
hearing on October 19, 2009, the parties testified on kinship guardianship and custody, and
Father also presented evidence relating to his immigration and work status, including that
his student visa had been reinstated, he was legally in the United States, he was enrolled in
college, action would be taken to terminate the removal process, and he would be applying
for a work permit. At the outset of the hearing, the court stated that it intended to fully
resolve the case that day. Father’s immigration attorney testified about Father’s immigration
3
status, and the court accepted Father’s tender of anticipated witnesses’ testimony as to
Father’s ability to care for Child and Father’s support network. Mother’s testimony
indicated that Child was totally dependent on Grandparents for support since Child’s birth.
The court was not satisfied with Father’s representations as to his immigration status and
found Father to be “totally uncredible.” At the close of the hearing, the court verbally
offered several thoughts and determinations, essentially indicating that it wanted Father to
continue to have a parental role through visitation and that Mother or Father might at some
future time be able to gain custody, but that full physical and legal custody of Child at this
time was given to Grandparents.
{8} The district court entered an initial custody order on November 4, 2009. However,
on December 4, 2009, the court entered an amended order and found that the requirements
of the Act had been met. This amended order found that Mother had consented to the
guardianship; Child had resided with Grandparents for more than ninety days preceding the
date their petition was filed; the parents were “unable, at this time, to provide adequate care,
maintenance, and supervision for . . . [C]hild”; Grandparents had been providing for the care
of Child since his birth and neither Mother nor Father were “capable[,] at this time[,] of
providing a financially or emotionally stable home for . . . [C]hild under the current
circumstances”; and it was in Child’s best interest to grant Grandparents’ petition and to
grant them sole legal and physical custody of Child. In the aforementioned orders, the court
granted Grandparents’ petition and legal and physical custody of Child, granted Father
timesharing and telephonic visits, discussed child support and health care costs, and stated
that the court’s “ruling on the kinship guardianship petition shall be reviewed by this [c]ourt
in [twenty-four] months.” Also on November 4, 2009, the court filed an order on Mother’s
motion to show cause that set out various provisions and requirements, including a provision
stating that Father’s immigration records were “relevant to the ongoing custody and
visitation matters[,]” ordering Father to execute documents necessary to allow Mother “to
have access to all of [Father’s] immigration records[,]” and stating that “[Father’s] execution
of said documents [was] a condition of his continuing visitation with [Child].”
Father’s Appellate Issues
{9} Father appeals the district court’s grant of Grandparents’ petition for kinship
guardianship for two reasons. First, Father contends that the court’s order appointing
Grandparents as kinship guardians under the Act did not include findings sufficient to satisfy
all of the statutory requirements and that, on the record, the court could not have found that
the requirements were met. Second, Father contends that, even were the Act applicable, the
court’s guardianship order was premature and based on insufficient information. Father also
appeals the district court’s order conditioning Father’s right to visitation on his written
consent to release to Mother all of his immigration records.
Standards of Review
{10} On the guardianship custody issue, this case requires us to interpret the provisions
of the Act and also to determine whether the findings of the district court were sufficient to
support application of the Act and to permit the court to grant Grandparents’ petition. We
4
review de novo issues of statutory construction and whether findings of fact support the
conclusions and application of law. In re Guardianship of Victoria R., 2009-NMCA-007,
¶ 7, 145 N.M. 500, 201 P.3d 169. Because of our disposition addressing the issue of
application of the Act, we will not review whether the guardianship order was prematurely
entered.
The Act
{11} We first set out pertinent provisions of the Act. Section 40-10B-2 states its policy
and purpose:
A. It is the policy of the state that the interests of children are
best served when they are raised by their parents. When neither parent is
able or willing to provide appropriate care, guidance[,] and supervision to a
child, it is the policy of the state that, whenever possible, a child should be
raised by family members or kinship caregivers.
B. The . . . Act is intended to address those cases where a parent
has left a child or children in the care of another for ninety consecutive days
and that arrangement leaves the child or children without appropriate care,
guidance or supervision.
C. The purposes of the . . . Act are to:
(1) establish procedures to effect a legal relationship
between a child and a kinship caregiver when the child is not residing with
either parent; and
(2) provide a child with a stable and consistent
relationship with a kinship caregiver that will enable the child to develop
physically, mentally[,] and emotionally to the maximum extent possible
when the child’s parents are not willing or able to do so.
Section 40-10B-8, in pertinent part, provides:
A. Upon hearing, if the court finds that . . . 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. In other cases the court may dismiss the proceedings or make
any other disposition of the matter that will serve the best interests of the
minor.
B. A guardian may be appointed pursuant to the . . . Act only if:
5
(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;
(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.
C. The burden of proof shall be by clear and convincing
evidence, except that in those cases involving an Indian child as defined in
the federal Indian Child Welfare Act of 1978, the burden of proof shall be
proof beyond a reasonable doubt.
Section 40-10B-12(A) permits “[a]ny person . . . [to] move for revocation of a guardianship
created pursuant to the . . . Act.”
DISCUSSION
Whether the Act’s Requirements Were Met
{12} Father asserts that the district court failed “to make findings that satisfy in full the
statutory requirements for appointment of a kinship guardian[.]” Father contends that his
consent for the guardianship appointment was required under Section 40-10B-8(B)(1), but
was never given. He also contends that the requirement in Section 40-10B-8(B)(3) that
Child reside with Grandparents without the parent for the required ninety-day period was
not met and could not be met because Mother continually resided with Grandparents and
Child before and after the petition was filed. He further contends that the court also did not
and could not find as required in Section 40-10B-8(B)(3) that a parent having legal custody
of the child was unable to provide adequate care, because early in the case the court had
granted legal custody to Grandparents and, therefore, at the time the petition was filed and
granted, neither parent had legal custody. Finally, Father argues that the court did not find
that the operative facts met the standard of extraordinary circumstances in Section 40-10B-
8(B)(3).
{13} We begin our analysis of whether the Act’s requirements were met with Father’s
arguments that overlay his specific points. Father refers to cases, articles, and provisions of
the Act leading into his view that Grandparents and Mother and the court have improperly
6
used the Act to exclude Father from custody and to in effect place custody in Mother, against
the purpose intended by the Legislature, which was “to give legal recognition to the de facto
parental status of third-party caregivers to whom parents have voluntarily entrusted the care
of their child.” Instead, according to Father, the Act was “used by Mother, in alliance with
Grandparents, as an offensive weapon in [a] custody battle[,]” with an “agenda” that
“enable[d] Mother to remain dependent on them while acting as a full-time parent during
Child’s early years and while completing her education.” As Father sees it, the Act was
“invoked only to give Mother the upper hand in maintaining custody of Child in her family
home to the exclusion of Father.” Further, Father sees the guardianship as contrary to the
intent of the Act by allowing one parent, Mother, who continues to function as a parent, and
the guardians, who are Mother’s parents, to live together with Child in an arrangement that
helps Mother to become a more successful single parent while limiting Father to restricted
visitation and allying to divest Father’s parental rights and to deny him custody.
{14} In regard to the Act, Father more specifically argues that the district court’s reliance
on Subparagraphs (1) and (3) of Section 40-10B-8(B) was unsupported. First, with respect
to Subparagraph (1), Father argues that under the circumstances here in which both parents
are living and Father is “very much in the picture[,]” his consent is required, and to create
a guardianship without his consent and over his objection and solely with Mother’s consent
would infringe on his parental rights to the extent of making the guardianship
“constitutionally suspect.” According to Father, the court’s failure to find that Father
consented means that the court’s findings were not sufficient to establish an essential
requirement for application of the Act.
{15} Second, Father argues that Subparagraph (3) requiring that the child has resided with
the petitioner without the parent “should be construed to require that, for a guardian to be
appointed for a child with two living parents, the child must have been living with the
prospective guardian without either parent[.]” That circumstance, according to Father, “is
the factual scenario around which the [Act] was designed” based on the policy, intention,
and purpose of the Act as set out in Section 40-10B-2(A), (B), and (C)(1). Moreover, Father
complains that because neither parent had legal custody at the point the guardianship was
established, the court could not find, and did not find, as required under Section 40-10B-
8(B)(3), that a parent having legal custody of Child was currently unwilling or unable to
provide the required care.
{16} Grandparents argue that a plain reading of the Act requires that “a parent” in Section
40-10B-8(B)(1) be unambiguously read to require only Mother’s consent and not Father’s.
Grandparents emphasize the court’s critical concern, which was Child’s best interests, and
flatly assert that “[t]his case begins and ends with the best interests of Child.” They further
appear to justify the application of the Act based on a district court’s exercise of equitable
power and flexibility in custody matters. In oral argument before this Court, Grandparents
explained (1) that the district court had in mind a definite plan for Child that was in Child’s
best interests; (2) that the court wanted to carry that plan out through application of the Act;
(3) that, as expressed by the court, the plan included having both parents be a part of Child’s
life while Grandparents were guardians and allowed for the possibility that Mother or Father
could, in the future, gain custody; and (4) that the court narrowly tailored the relief through
7
giving Father visitation rights, requiring both parents to attend parenting classes, allowing
Father to return to court once his immigration status was clear, and setting a judicial review
of its order to occur in twenty-four months. We are not persuaded by Grandparents’
arguments.
{17} A kinship guardianship “represents very serious consequences for the parent.” In re
Victoria R., 2009-NMCA-007, ¶ 28 (Pickard, J., specially concurring); cf. State ex rel.
Children, Youth & Families Dep’t v. Pamela R.D.G. (In re Pamela A.G.), 2006-NMSC-019,
¶ 11, 139 N.M. 459, 134 P.3d 746 (“The interest of parents in the care, custody, and control
of their children is a fundamental liberty interest.”). We confine our analysis and decision
in this case to the facts of this case and the requirements in Section 40-10B-8(B)(1) and (3).
We do not believe that the express policy, intent, and purposes of the Act read as a whole
and together with either of those two requirements for guardianship will support an
application of the Act under the present circumstances. A kinship guardianship can be
granted only on petition of a kinship caregiver or other caregiver as defined in Section 40-
10B-5(A). A proceeding under the Act is not brought by a parent. By its language and
apparent intent, the Act exists to permit, if not encourage, kinship guardianship in instances
where parents are unwilling or unable to provide appropriate care, guidance, or supervision
of their child and, upon satisfaction of the requirements in Section 40-10B-8(B) of the Act,
if the child’s best interests will be served by the guardianship. See §§ 40-10B-2(A), -8(A),
(B).
{18} We do not read the Act as Grandparents and the district court read it, namely, that
a plain reading of the consent requirement in Section 40-10B-8(B)(1) requires the conclusion
that, no matter the circumstance, it takes the consent of only one parent to invoke the
guardianship. To the contrary, in our view the words “a parent” in Sections 40-10B-2(B)
and 40-10B-8(B)(1) must be read to mean both parents when both parents are living and
have the capacity to give consent. We see no valid reason for application of the Act under
the circumstances in the present case. Both parents are living and able to give consent.
Nothing in the Act persuades us that the Legislature intended that where both parents are
living and able to consent to a guardianship under the Act but are unable to provide
appropriate care, guidance, or supervision to their child, a kinship guardianship could be
granted based on the consent of only one parent. We note that, here, Father objected to the
guardianship.
{19} Other provisions in the Act support our view. For example, “[i]t is the policy of the
state that the interests of children are best served when they are raised by their parents.”
Section 40-10B-2(A) (emphasis added). Further, a purpose of the Act is to “establish
procedures to effect a legal relationship between a child and a kinship caregiver when the
child is not residing with either parent[.]” Section 40-10B-2(C)(1) (emphasis added).
Statutory construction rules say that we should construe the singular to include the plural.
See NMSA 1978, § 12-2A-5(A) (1997) (stating that statutory language in the singular
includes the plural). We note, too, Supreme Court Form 4-988 NMRA, setting out a form
of order appointing a kinship guardian by consent, indicates that the court has reviewed the
sworn petition “and the consent of the [parents,]” and in its use notes for Form 4-988 states
that “[the] form order may be used if both parents have signed a [consent,]” and “may also
8
be used if one of the parents of the child is deceased or if the parent’s parental rights have
been terminated.” See Form 4-988.
{20} Furthermore, we see nothing in the Act indicating that the Legislature intended that
the Act apply where the parents, even when unable to provide care, guidance, or supervision
for their child, are separated and one parent moves out to reside with the child at the home
of a grandparent or other relative. Such an arrangement would enable one parent to utilize
the Act to unfairly engage in in-the-home, continual, and personal parenting of the child to
the exclusion of the other parent. The evidence also does not support a finding under Section
40-10B-8(B)(3) that Child resided with Grandparents without Mother, and that Mother
(much less Mother and Father) had legal custody of Child during the critical ninety-day
period in that section. In regard to the intent and purpose expressed in the Act, this was not
a case in which the parents having legal custody left a child in the care of someone else for
the ninety-day period and that arrangement left the child without appropriate care, guidance,
or supervision. See § 40-10B-2(B). Nor did the procedure effect a legal relationship
between a child and a kinship caregiver when the child was not residing with either parent.
See § 40-10B-2(C)(1).
{21} We fail to see why, instead of a guardianship, an interim custody order would not be
permissible and appropriate when it places legal custody with a third-party relative while one
of the parents also lives with the third-party relative until the custody battle is resolved.
Although the case did not arise under the Act or on particularly similar facts as those in the
present case, our statements in In re Guardianship of Sabrina Mae D., 114 N.M. 133, 139,
835 P.2d 849, 855 (Ct. App. 1992), a case involving a dispute between a mother and her
grandparents, are insightful and apropos.
In New Mexico, while a district court is invested with subject matter
jurisdiction to grant a petition for guardianship of a minor or to adjudicate
custody disputes between parents and non-parents involving children . . .
over objection of a parent, guardianship proceedings are not the proper
means to involuntarily terminate a parent’s right to custody of his or her
children. In adjudicating competing custody claims between a parent or
parents, and third parties, if the court determines that a child’s custody should
be placed with a non-parent, it is not a requirement that the court also issue
letters of guardianship to the parties awarded custody. Although custody
issues constitute a component of guardianship proceedings involving a minor
child, the court may award or continue custody in third parties without
issuing letters of guardianship.
We do not read in the Act a legislative intent that a kinship guardianship be established in
the type of arrangement that existed in the present case.
{22} A petitioner for kinship guardianship under the Act cannot prevail simply because
parents are unable to care for their child or because it is in a child’s best interests that
someone other than the parents have custody of the child. The petitioner must satisfy one
of the three prerequisites in Section 40-10B-8(B). The district court’s findings in this case
9
do not state facts that fully satisfy the prerequisites upon which a kinship guardianship can
be established. Nor is there evidence that Grandparents met any of those prerequisites. In
addition, the intent and purpose of the Act were not served by its application. The district
court did not offer any rationale as to why the Act needed to be applied in lieu of the
continuation of its existing order placing Child’s interim physical and legal custody in
Grandparents.
{23} We hold that Grandparents failed to establish any prerequisite for application of the
Act, that the district court’s findings did not support the grant of Grandparents’ petition for
kinship guardianship under the Act, and that the court erred in granting the petition. We
therefore reverse the district court’s grant of Grandparents’ petition under the Act. We see
no need to address Father’s argument in regard to the prematurity of the district court’s
determination. We also see no need to address the issue of conditioning Father’s visitation
on his signing the appropriate documents for release of his entire immigration records to
Mother or Grandparents. However, we express our concern about the breadth of the order
as well as an invasion into a privacy interest Father may well have in disclosure of the
records, given that the record fails to indicate why Father’s entire immigration record is
needed at this stage of the proceeding and why, even assuming that the record might contain
information relevant to the question of the Child’s best interests, the record could not be
reviewed by the district court in camera and restricted as necessary in order to assure that
whatever privacy right Father may have is not unnecessarily or improperly invaded. During
the oral argument before this Court, Father indicated that an in camera review might be a
satisfactory way to resolve this issue.
CONCLUSION
{24} We reverse the district court’s order granting Grandparents’ petition for a kinship
guardianship under the Act and the order establishing the kinship guardianship. We remand
for further proceedings in regard to the issues relating to custody of Child, without regard
to kinship guardianship.
{25} IT IS SO ORDERED.
______________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
______________________________________
CYNTHIA A. FRY, Judge
______________________________________
TIMOTHY L. GARCIA, Judge
Topic Index for Freedom C. v. Julie Ann D., Docket No. 30,041
10
AE APPEAL AND ERROR
AE-SR Standard of Review
CD CHILDREN
CD-CS Custody
CD-KG Kinship Guardianship
ST STATUTES
ST-IP Interpretation
ST-LI Legislative Intent
11