Homer F. v. Jeremiah E.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-082

Filing Date: June 30, 2009

Docket No. 28,694

IN THE MATTER OF THE ADOPTION
PETITION OF HOMER F. and JOYCE F.,

Petitioners-Appellees,

v.

JEREMIAH E.,

Respondent-Appellant,

and

IN THE MATTER OF SAM JACKSON F.,

a Child.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
J. Richard Brown, District Judge

Jane B. Yohalem
Santa Fe, NM

for Appellees

Caren I. Friedman
Santa Fe, NM

Collopy Law Office
Michael John Collopy
Hobbs, NM

for Appellant

Roxanne Lara
Carlsbad, NM

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Guardian ad Litem

OPINION

CASTILLO, Judge.

{1} Grandparents filed a petition to adopt Father’s child (Child) and served Father with
a motion to imply his consent to the adoption. After two separate hearings on the matter,
two orders were entered—one in December 2006 (2006 order) and another, amended order
in June 2008 (2008 amended order)—implying Father’s consent to the adoption of Child.
Father filed an application for interlocutory appeal of the 2008 amended order, which was
granted. On appeal, we necessarily examine the effect of the 2006 order and conclude that
the 2006 order was a final, appealable order and, further, that once the order was entered and
not timely appealed, Father was no longer a party to the adoption proceedings. Accordingly,
we quash this interlocutory appeal and remand to the district court for further proceedings
consistent with this opinion.

I. BACKGROUND

{2} Child was born to Mother and Father on January 24, 1999. Mother and Father were
never married. From birth, Child has lived with his maternal grandparents (Grandparents).
In April 1999, Grandparents were appointed guardians and conservators over Child. Eight
years later, in September 2006, Grandparents filed a petition for adoption under the Adoption
Act, NMSA 1978, Sections 32A-5-1 to -45 (1993, as amended through 2007) (Adoption
Act).

{3} As a part of the petition for adoption, Grandparents filed a motion requesting the
district court to imply the consent of Father, pursuant to Section 32A-5-18. Father, acting
pro se, filed a response to the petition and contested the adoption. In early November 2006,
the district court held a hearing on the consent issue and orally ruled that Father’s consent
should be implied. After the hearing, Father obtained counsel and on December 8, 2006,
filed a second response to the petition for adoption. In addition, Father filed a motion to
reconsider and vacate the ruling made by the district court at the November 2006 consent
hearing. On December 14, 2006, the district court held a hearing on Father’s motion. The
next day the district court entered the 2006 order, which implied Father’s consent based on
his failure to care for, communicate with, and support Child during the requisite time period
set forth in the statute. See § 32A-5-18(A). In addition, based on the arguments at the
hearing, the district court appointed a guardian ad litem. The 2006 order was not signed by
Father’s counsel prior to its entry.

{4} Nearly a year passed before the next action was taken in the case. Apparently in
response to the retirement of the original judge, Grandparents and Father stipulated to the
assignment of a new judge. A status conference was conducted in December 2007, and the
district court indicated that it would listen to the tapes of the December 14, 2006 hearing and

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then set the case for either a second status conference or an adjudicatory hearing on the
petition for adoption.

{5} In February 2008, the district court issued a letter to Father, Grandparents, and
Child’s guardian ad litem. In that letter, the court outlined its understanding of the case: that
Father’s consent had been implied over objection; that the parties understood the 2006 order
to be final; that Father had requested and been given time to file proposed findings and
conclusions, but he did not file either; that Father had indicated that he was going to appeal
the 2006 order, but no appeal was filed; that Father was not entitled to notice of further
proceedings; and that Father was no longer a party to the cause. Father responded to the
letter with a motion to reconsider. He argued that he was still a party to the adoption
proceeding and that the 2006 order was not final.

{6} The district court held a hearing on Father’s motion and, as a result of the hearing,
the district court entered the 2008 amended order. That order, in relevant part, permitted
Father to take an interlocutory appeal of the consent determination and stayed the
proceedings pending the outcome of the appeal. Father applied for and this Court granted
an interlocutory appeal of the 2008 amended order. Additional facts will be developed as
the issues are discussed.

II. DISCUSSION

{7} “Adoption, unknown at common law, is a creature of statute” and “[i]n New Mexico,
adoption is governed by the Adoption Act, the interpretation of which is an issue of law we
review de novo.” Helen G. v. Mark J.H., 2008-NMSC-002, ¶ 7, 143 N.M. 246, 175 P.3d 914
(internal quotation marks and citation omitted).

{8} After interlocutory appeal was granted, this Court assigned the case to the general
calendar, with directions for the parties to address finality of the 2008 amended order. In
this regard, the parties also addressed the finality of the 2006 order. We observe that if the
2006 order is final, there are no issues for this Court to consider because no timely appeal
was filed. Father argues that we can consider his appeal because the 2006 order was
interlocutory, the 2008 amended order properly modified the 2006 order and was also
interlocutory, and his appeal from the 2008 amended order was timely. Specifically, Father
asserts that the 2006 order was not final because the court had not fully disposed of the
petition and because it would be unjust under the circumstances of the present case to
prevent Father from participating as a party in the adoption proceeding. Father also argues
that the 2006 order is void for lack of certain required signatures. We begin with Father’s
finality arguments.

A. Finality of the 2006 Order

{9} Rule 1-054(B)(2) NMRA governs the finality of judgments upon multiple parties;
it states that a “judgment may be entered adjudicating all issues as to one or more, but fewer

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than all parties.” Rule 1-054(B)(2) further states that “[s]uch judgment shall be a final one
unless the court . . . expressly provides otherwise and a provision to that effect is contained
in the judgment.” Id. No such provision was included in the 2006 order. An order is final
when all issues of law and fact have been determined and the case is disposed of by the
district court to the fullest extent possible. Estate of Griego ex rel. Griego v. Reliance
Standard Life Ins. Co., 2000-NMCA-022, ¶ 13, 128 N.M. 676, 997 P.2d 150. Father argues
that because the district court has not yet adjudicated the allegations of the petition, the case
has “by no means been disposed of to the fullest extent possible.” Father’s primary
argument is that even if his consent is implied, he still has the right to participate in the
adoption proceeding until the final order of adoption is entered. Although we agree that the
petition remains yet to be acted upon, once Father’s consent has been obtained in some
fashion, we see no statutory role for him to play in that proceeding. We address each of
Father’s points in the context of our analysis.

1. The Statutory Effect of Consent

{10} Father argues that the 2006 order is not final because “all it does is find that Father
impliedly consented to the adoption.” Based on review of the Adoption Act, however, we
conclude that any finding of consent to adoption effectively terminates the consenting
parent’s rights to participate further in the adoption proceeding and, thus, an order of implied
consent is final as to that parent. The Adoption Act recognizes three types of a father: an
acknowledged father, an alleged or biological father, and a presumed father. See § 32A-5-
3(F), (G), (V). Different rights are afforded fathers of different status. See Helen G., 2008-
NMSC-002, ¶¶ 8-10. Father’s status is not clear from the record. At oral argument before
this Court, however, the parties agreed that Father is Child’s acknowledged father.
Accordingly, Father’s consent to adoption or relinquishment of parental rights is required.
Section 32A-5-17(A)(5) (requiring the consent of the adoptee’s acknowledged father).

{11} Consent may either be voluntarily obtained, see § 32A-5-21, or implied by the district
court based on a parent’s actions. See § 32A-5-18(A). “The implication of a consent or
relinquishment under this section shall have the same effect as though the consent or
relinquishment had been given voluntarily.” Section 32A-5-18(B). The Adoption Act
additionally sets out the time frame in which the necessary consents must be obtained or
adjudicated before the district court may determine the merits of the petition for adoption.
See § 32A-5-18(C) (requiring the district court to “render its decision on the implied consent
prior to proceeding with the adjudicatory hearing”); see also § 32A-5-36(F)(3) (requiring
the district court to determine at the time of adjudication that all necessary consents have
been obtained). A parent who provides voluntary consent waives the right to notice of
further proceedings on the petition. See § 32A-5-21(A)(12). Thus, because the effect of a
voluntary consent is imputed to an implied consent, see § 32A-5-18(B), a parent who is the
subject of an order of implied consent has no right to notice of further proceedings on the
petition.

{12} In addition, consent to adoption cannot be withdrawn—even prior to the adjudication
of the petition—unless the parent can establish fraud. See § 32A-5-21(I). Although fraud
is not an issue here, we further address the statutory procedure for establishing that parental

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consent was fraudulently obtained in order to demonstrate the parent’s limited role once
consent has been established. Under Section 32A-5-36(D), any procedure initiated on a
fraud petition must be concluded by the biological parent before the district court adjudicates
the merits of the petition for adoption. Thus, all issues regarding a parent’s consent are
required to be resolved before the petition for adoption is adjudicated.

{13} Father cites Helen G. to argue that the order implying his consent to the adoption is
not final because his legal rights in Child remain intact until the final decree of adoption is
entered. Helen G. held that a father who is neither the presumed nor the acknowledged
father of the child does not have the right to withhold his consent to an adoption. 2008-
NMSC-002, ¶ 51. The Court concluded that Section 32A-5-37(B) “effectively” terminated
the legal relationship between biological parents and a child after a legal relationship
between the child and the adoptive parents is created by a final decree of adoption. Helen
G., 2008-NMSC-002, ¶ 35. Critically, however, that case did not address the status of a
father whose consent had been implied under Section 32A-5-18(A) or the effect of a consent
after it has been implicitly or voluntarily given because as we have explained, the father in
Helen G. had no entitlement to give or withhold consent. As a result, Helen G. does not
provide authority for the argument that Father’s rights regarding Child in the present case
remain intact until the entry of the adoption decree when his implied consent to this adoption
has already been adjudicated.

{14} Our review of these consent provisions leads us to conclude that the Adoption Act
does not contemplate a parent’s further participation in an adoption adjudication after the
required consents have been obtained. Consequently, we further hold that because the
parent’s consent to adopt has been secured, thus eliminating the right to participate in the
adoption proceeding, parental rights have effectively been terminated—or relinquished, in
the case of a voluntary consent—at that time. See Karen D. Laverdiere, Content Over Form:
The Shifting of Adoption Consent Laws, 25 Whittier L. Rev. 599, 600 (2004) (explaining that
in general, “the consent to adoption constitutes the relinquishment of parental rights”
(internal quotation marks and citation omitted)).

2. Father’s Status as a Biological Father

{15} Despite these statutory provisions, Father points to Section 32A-5-36(C) and
contends that the district court must hear evidence on the merits of a petition “when a
biological father appears to contest the adoption.” Father misreads this section of the
Adoption Act. Section 32A-5-36(C), in its entirety, provides for the following:

If any person who claims to be the biological father of the adoptee has
appeared before the court and filed a written petition or response seeking
custody and assuming financial responsibility of the adoptee, the court shall
hear evidence as to the merits of the petition. If the court determines by a
preponderance of the evidence that the person is not the biological father of
the adoptee or that the child was conceived through an act of rape or incest,
the petition shall be dismissed and the person shall no longer be a party to the
adoption. If the court determines that the person is the biological father of

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 the adoptee, the court shall further determine whether the person qualifies as
a presumed or acknowledged father whose consent is necessary for adoption,
pursuant to Section 32A-5-17[.] If the court determines that the person is the
biological father, but does not qualify as a presumed or acknowledged father,
the court shall adjudicate the person’s rights pursuant to the provisions of the
Adoption Act[.]

Father appears to interpret this language to mean that a biological father who has filed a
response to a petition for adoption is entitled to participate in the district court’s adjudication
of the adoption petition. We disagree.

{16} Our Supreme Court has explained that Section 32A-5-36(C) addresses the situation
where “a biological father who does not have the right to withhold consent to the adoption
seeks custody of the adoptee at the hearing on the adoption petition.” Helen G., 2008-
NMSC-002, ¶ 35. Father is an acknowledged father and not a biological father as defined
by the statute. As such, Father had the right to withhold his consent to the adoption. Thus
Helen G. and Section 32A-5-36(C) do not apply to Father. See Helen G., 2008-NMSC-002,
¶ 35 (explaining that when a biological father who does not have the right to withhold
consent wants his rights heard, he may file a petition or response seeking custody or
assuming financial responsibility of the adoptee, in which case, “the district court shall
adjudicate the person’s rights” at the adjudicatory hearing (internal quotation marks and
citation omitted)).

{17} Further, Section 32A-5-36(C) indicates that the district court shall adjudicate the
objecting parent’s rights. Father’s rights have already been adjudicated under the Adoption
Act: his consent to the adoption was implied. Based on Father’s status as an acknowledged
father, as well as the district court’s previous determination of his rights under the Adoption
Act, Section 32A-5-36(C) does not establish that any issue remains regarding Father’s rights
to Child.

3. Open Adoption

{18} Father also argues that because Grandparents alleged in the petition that the adoption
will not be open, Section 32A-5-35(E) requires that the open adoption allegation—and, thus,
Father’s continued right to contact with Child—be proven at the adjudicatory hearing.
Section 32A-5-35(A) permits the parents of the child and the petitioner to “agree to contact
between the parents and the petitioner or contact between the adoptee and one or more of the
parents or contact between the adoptee and relatives of the parents.” The question of open
adoption is therefore not reliant on a parent’s right to contact with a child, but instead is
based on an agreement between the adoptive parents and the biological parents. Although
the district court will consider the open adoption issue at the adjudicatory hearing, nothing
in the statute suggests that Father has a right to contest Grandparents’ position on open
adoption at that hearing. To the contrary, the statute indicates that in order to initiate an
open adoption, Father and Grandparents must “agree to contact.” Section 32A-5-35(A).
Because an agreement between the parties is required, Father is foreclosed from appearing
at the adjudicatory hearing and taking an adversarial stance on the question of open

6
adoption. Should the district court find at the adjudicatory hearing that an open adoption is
in Child’s best interests, such a finding would not resurrect Father’s parental rights, which
were terminated by the 2006 order on implied consent.

4. Actions of the Parties

{19} To support his interlocutory argument, Father points to the actions of Grandparents,
the district court, and the guardian ad litem in continuing to treat him as a party to the
adoption petition, despite Grandparents’ position on appeal that Father’s party status was
terminated by the 2006 order. He relies on arguments and concessions made by
Grandparents’ counsel in the district court, the district court’s actions and comments, and
the opinion of the guardian ad litem. Grandparents counter by directing our attention to
Father’s actions, specifically Father’s discussion of the finality of the 2006 order with the
district court at the December 14, 2006 hearing and Father’s agreement with the district
court that the consent determination was a final, appealable order. Further, Father indicated
an intent to appeal the order at that time. Despite these conflicting versions of the
proceedings below, it is the responsibility of this Court to determine its own jurisdiction.
See Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d 300. Finality
is a prerequisite to this Court’s jurisdiction and, therefore, finality presents a question of law.
See Children, Youth & Families Dep’t v. Frank G., 2005-NMCA-026, ¶ 39, 137 N.M. 137,
108 P.3d 543 (explaining that “this Court would not have jurisdiction to hear an appeal from
a non-final order”), aff’d sub nom. In re Pamela A.G., 2006-NMSC-019, 139 N.M. 459, 134
P.3d 746; Smith, 2007-NMSC-055, ¶ 10 (observing that jurisdictional questions present
issues of law).

{20} We answer the finality question by evaluating whether the substance of the order
declares the rights and responsibilities of the parties to the controversy and not by examining
the parties’ expectations. See Frank G., 2005-NMCA-026, ¶ 40 (“In determining finality
for purposes of appeal, we are to look to the substance of the judgment, keeping in mind a
policy of facilitating meaningful and efficient appellate review of issues that affect important
rights[.]” (citations omitted)). Father’s rights as to Child are delineated by the Adoption Act.
According to the Act, the district court’s order finding Father’s implied consent put an end
to his interest as a party to the adjudication of this petition for adoption—the behavior of the
parties notwithstanding.

5. Procedural Irregularities

{21} Father contends that because of the procedural and statutory irregularities that he
alleges occurred in this case, it would be unfair for this Court to conclude that the 2006 order
is final and that he is no longer a party to the adoption proceeding. Specifically, Father
contends that because he was not represented by counsel at the November 2006 consent
hearing, he did not have an opportunity to present his case. We disagree.

{22} The only section of the Adoption Act that refers to the appointment of counsel is
Section 32A-5-16(E), which refers to the termination of parental rights. This section
requires the district court to “upon request, appoint counsel for an indigent parent who is

7
unable to obtain counsel or if, in the court’s discretion, appointment of counsel for an
indigent parent is required in the interest of justice.” Father did not request counsel, and
there is nothing in the record to indicate that Father was indigent at the time of the consent
hearing or that justice required the appointment of counsel. The record demonstrates that
Father participated in the November consent hearing, asked questions of the witnesses,
testified, and made a statement on his own behalf. Thus, Father has not demonstrated that
he was entitled to counsel. Father chose to represent himself at the beginning of the
proceedings, and there is nothing in the record to show that an injustice occurred. See
Woodhull v. Meinel, 2009-NMCA-015, ¶ 30, 145 N.M. 533, 202 P.3d 126 (“Although pro
se pleadings are viewed with tolerance, a pro se litigant, having chosen to represent himself,
is held to the same standard of conduct and compliance with court rules, procedures, and
orders as are members of the bar.” (internal quotation marks and citation omitted)), cert.
denied, 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870.

6. Finality Determination and Effect

{23} Based on the foregoing analysis as well as the need for permanency, we conclude that
the 2006 order finding Father’s implied consent to the adoption was a final, appealable order.
“[T]he term ‘finality’ is to be given a practical, rather than a technical, construction.” Kelly
Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 236, 824 P.2d 1033, 1038 (1992), limited on
other grounds by Trujillo v. Hilton of Santa Fe, 115 N.M. 397, 398, 851 P.2d 1064, 1065
(1993). The most practical means of recognizing a parent’s rights while at the same time
providing the petitioner and the child with some permanency is to require the parent to
immediately appeal a final determination of implied consent.

{24} As a result of this holding, we do not address Father’s position that the June 2008
amended order properly amended the 2006 order. A final order, once it is entered, cannot
be altered or amended except by motion to vacate or modify, by motion under Rule 1-060
NMRA, or by application under Rule 1-059 NMRA. See St. Clair v. County of Grant, 110
N.M. 543, 549, 797 P.2d 993, 999 (Ct. App. 1990). Father does not argue that any of these
exceptions to finality apply to the 2008 amended order. Absent any applicable exception,
our holding that the 2006 order was a final order is dispositive.

B. Lack of Signature on the 2006 Order

{25} Father additionally argues that even if the 2006 order was a final order, it is void
because it lacked the signature of his counsel that is required under LR5-202(C) NMRA and
Rule 1-058(C) NMRA. We are unpersuaded.

{26} Rule 1-058(C) provides that “before the court signs any order or judgment, counsel
shall be afforded a reasonable opportunity to examine the same and make suggestions or
objections.” The record shows that Father’s counsel had such an opportunity. The content
of the 2006 order was the subject of the December 2006 hearing on Father’s motion to
reconsider. Father argues that “being present at a hearing on a different motion does not
constitute consent to enter” the 2006 order. We disagree. Counsel for Father, counsel for
Grandparents, and the court had the order in front of them at the hearing. Father was able

8
to object and in fact did. His primary argument was that the district court did not have
jurisdiction to enter the order based on the failure to appoint a guardian ad litem. There was
no argument that the order did not accurately reflect the decision of the court following the
hearing on Grandparents’ motion to imply Father’s consent. The district court ruled against
Father on the jurisdictional argument and informed the parties that he would sign the order
in the form presented by Grandparents’ counsel. Thus, based on the facts of this case, we
are satisfied that the district court complied with Rule 1-058(C).

{27} Father also relies on LR5-202(C), which states that

[o]rders and judgments will not be signed by the judge unless they have been
initialed by attorneys for all parties to the cause or pro se parties. Should the
attorney for any party fail or refuse to so initial a proposed order or judgment
within five (5) working days, the attorney submitting the proposed order shall
certify to the court that opposing counsel or pro se party has failed or refused
to initial the same.

While we agree that the 2006 order did not have the initials of Father’s counsel, Father does
not provide any authority for his position that this failure automatically renders the order
void. See Stockton v. N.M. Taxation & Rev Dep’t, 2007-NMCA-071, ¶ 16, 141 N.M. 860,
161 P.3d 905 (declining to address arguments that are unsupported by authority).

{28} In addition, the purpose behind Rule 1-058 and LR5-202(C) is to ensure that the
parties have notice of the language on an order before its entry so that if there is a
disagreement, a presentment hearing can be held. If there is a presentment hearing or
equivalent, which occurred in this case, the purpose of the rules is met. Here, the parties
received notice of the proposed order and were allowed to assert their arguments. In the
event of a conflict, Rule 1-058 as the statewide rule would control over the local rule. Rule
1-083 NMRA (mandating that “[l]ocal rules and forms shall not conflict with, duplicate or
paraphrase statewide rules or statutes”). Accordingly, we conclude that Grandparents and
the district court sufficiently complied with Rule 1-058 and that the lack of initials did not
render the order void.

{29} IT IS SO ORDERED.

____________________________________
CELIA FOY CASTILLO, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
MICHAEL E. VIGIL, Judge

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Topic Index for Homer F. and Joyce F. v. Jeremiah E., No. 28,694

CD CHILDREN
CD-TR Termination of Parental Rights

CP CIVIL PROCEDURE
CP-FO Final Order

DR DOMESTIC RELATIONS
DR-AD Adoption
DR-PR Parental Rights
DR-TL Time Limitations

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