(dissenting).
18. I respectfully dissent. I would uphold the children’s court’s order granting summary judgment and terminating Defendant’s parental rights subsequent to his murder of the child's mother.
19. Defendant was convicted of false imprisonment and the first-degree murder of his former wife following a jury trial. Based on his convictions, the district court sentenced Defendant to serve a term of life imprisonment, plus eighteen months. Under this sentence, Defendant is not eligible for parole for a minimum of thirty years. See NMSA 1978, § 31-21-10(A) (RepLPamp. 1994). On April 29, 1996, our Supreme Court affirmed Defendant’s convictions and sentences for first-degree murder and false imprisonment. State v. Ross, 122 N.M. 15, 919 P.2d 1080 (1996).
20. Because Defendant was incarcerated and the mother died from gunshot wounds inflicted by Defendant, the child, Sara R., six and one-half years old, was placed in the custody of the Children, Youth and Families Department (the Department). The Department filed a petition to have the child declared abused and neglected, and subsequently filed a motion to terminate Defendant’s parental rights. On November 29, 1993, following an evidentiary hearing, the children’s court found that the child was “an abused, and neglected child as defined in the Children’s Code ” (emphasis added), that the Department had utilized reasonable efforts to attempt to reunify the child with Defendant, and that because of his incarceration Defendant is unable to care for the child. The standard of review to support a finding of abuse or neglect as prescribed in NMSA 1978, Section 32A-4-20(H) (Repl.Pamp.1995) is proof by “clear and convincing evidence.” Id.; see also Reuben & Elizabeth O. v. Department of Human Servs., 104 N.M. 644, 647-48, 725 P.2d 844, 847-48 (Ct.App.), cert. denied, 104 N.M. 84, 717 P.2d 60 (1986). Defendant did not appeal the November 29, 1993, judgment and disposition or contest the findings underlying that disposition.
21. Thereafter, on June 23, 1994, in the same cause, the Department filed a motion to terminate Defendant’s parental rights under the Abuse and Neglect Act, NMSA 1978, Sections 32A-4-1 to 32A-4 — 33 (Repl. Pamp.1995), alleging, inter alia, that the child was neglected. Approximately three months later, the Department filed a motion for summary judgment requesting that Defendant’s parental rights be terminated on the grounds of neglect. Among other things, the Department’s motion for summary judgment stated, as uncontested facts, (1) that Defendant killed the child’s mother; (2) that Defendant has been convicted of first-degree murder and false imprisonment, and Defendant has been sentenced to serve a term of life imprisonment in the state penitentiary, plus eighteen months, and would not be eligible for parole for at least thirty years; and (3) that any reasonable efforts to reunite the child with Defendant would be futile.
22. Although Defendant’s response to the motion for summary judgment asserts that summary judgment should be denied because an appeal of his criminal conviction was still pending, that neglect could not be proven by clear and convincing evidence, that a factual issue exists as to whether the parent-child bond has disintegrated, and that the Department’s motion did not follow SCRA 1986, 1-056(D) (Repl.1992), the children’s court had previously found the child to be neglected, and Defendant did not dispute he had been convicted of killing the child’s mother, his lengthy sentence of incarceration arising out of his criminal convictions, or that any efforts by the Department to reunite the child with Defendant would be futile. The basic facts relied upon by the Department and set forth in the motion for summary judgment essentially reiterated the findings of fact that had been previously adopted by the children’s court in its November 29, 1993, judgment finding that the child was abused and neglected. Under these circumstances, the children’s court could properly conclude as a matter of law that Defendant’s criminal acts have effectively deprived the child of the care and support of both parents, that Defendant cannot care for the child, and that Sara R. will have long since reached adulthood before Defendant is eligible for release.
23. On May 2, 1995, the children’s court granted the motion for summary judgment. Under the record herein, the children’s court properly granted summary judgment terminating Defendant’s parental rights. See In re T.C., 118 N.M. 352, 353, 881 P.2d 712, 713 (Ct.App.1994) (holding that summary judgment may be granted in cases seeking termination of parental rights); see also In re Adoption of Doe, 99 N.M. 278, 282, 657 P.2d 134, 138 (Ct.App.1982) (murder of infant’s mother by father, and father’s subsequent incarceration and inability to care for and protect child held to be grounds for termination of parental rights), cert. denied, 99 N.M. 358, 658 P.2d 433 (1983).
24. As discussed above, prior to the filing of the motion for summary judgment, the children’s court had previously determined in its November 29,1993, judgment and disposition that the child was an “abused and neglected child.” Defendant does not dispute the facts of his convictions or that the sentences resulting therefrom will extend beyond the child’s minority and, indeed, well beyond. Moreover, Section 32A-4-2(C) of the Abuse and Neglect Act specifies five alternative ways a child can be found to be neglected. The fourth alternative, Section 32A-4-2(C)(4), expressly provides that a neglected child means a child “whose parent, guardian or custodian is unable to discharge his responsibilities to and for the child because of incarceration____” (Emphasis added.) Section 32A-4-28(B)(2) states, in pertinent part:
B. The court shall terminate parental rights with respect to a child when:
(2) the child has been a neglected or abused child as defined in the Abuse and Neglect Act ... and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts by the department ... to assist the parent in adjusting the conditions that render the parent unable to properly care for the child____ [Emphasis added.]
25. Here, Defendant’s response to the motion for summary judgment, paragraph 4, admits that his convictions for first-degree murder and false imprisonment were pending before the appellate court and the fact of his sentence and incarceration for the killing of the child’s mother. Based on the prior findings of the children’s court, together with the undisputed facts set forth in the motion for summary judgment, the court could properly determine as a matter of law that under the provisions of Sections 32A-4-2(C)(4) and 32A-4-28(B)(2), the child was neglected by reason of Defendant’s murder of the child’s mother and Defendant’s lengthy sentence of incarceration which resulted in his inability to care for the child, and that Defendant’s ongoing neglect of the child has been fully established by the requisite standard of proof.
26. The majority opinion contends that Defendant should have been afforded an evidentiary hearing to factually resolve Defendant’s contention that the “parent-child relationship was not destroyed.” I believe the majority misreads the applicable statute. When the basis for termination of parental rights is grounded on an allegation of neglect under Section 32A-4-28(B)(2) stemming from a parent’s long-term incarceration and his consequent inability to properly care for the child, disintegration of the parent-child relationship and presumptive abandonment are not at issue. As shown in the record, the children’s court previously determined that Defendant was indigent, and that the causes of his neglect of the child are unlikely to change. Defendant’s response to the motion for summary judgment made no showing that the basis for the children’s court’s finding of child neglect will or is likely to change in the foreseeable future.
27. Although I agree with the majority that incarceration alone does not in every ease establish neglect as a matter of law and that the issue of whether an individual’s parental rights should be subject to termination should be carefully determined on a case-by-case basis, under the undisputed facts existing here, the children’s court properly granted summary judgment, thereby terminating Defendant’s parental rights. I would affirm the children’s court’s judgment entered below because the court had previously determined that Defendant “neglected” the child and because, based on undisputed evidence, the court could properly conclude as a matter of law that the child was neglected within the purview of Sections 32A-4-2(C)(4) and 32A-4~28(B)(2).