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.
No. 27,101.
Court of Appeals of New Mexico.
Oct. 29, 2008.
Certiorari Denied, No. 31,417, Dec. 19, 2008.
2009-NMCA-007 | 201 P.3d 169
ALARID, Judge.
Caren I. Friedman, Santa Fe, NM, for Appellant.
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, Victo-
{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),
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
{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 supervi-
sion 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
{6} We begin our analysis by noting what is not at issue. Mother does not argue that the requirements of Section
{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
{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, 132 N.M. 772, 55 P.3d 984 (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
{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 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
{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 (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, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). KGA
{12} Our Legislature clearly knows how to draft a statute mandating a strict application of the parental rights doctrine, as for example in
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, 120 S.Ct. 2054 (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“).
{13} In the present case, the district court made the following findings:
1. The minor child at issue . . . was born July 14, 1999.
. . . .
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] 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, 369 S.C. 585, 633 S.E.2d 162, 168 (Ct.App.2006); American Law Institute, 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 inter-
{15} Notwithstanding continued adherence to some form of the parental preference 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, 208 Ariz. 90, 91 P.3d 312, 315 (Ct.App.2004) (stepparent visitation); Robinson v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140, 144 (2005) (stepparent visitation); Erika K. v. Brett D., 161 Cal.App.4th 1259, 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, 285 Conn. 24, 939 A.2d 1040, 1044 (2008) (aunt custody); Tailor, 708 A.2d at 629-30 (stepparent custody); Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611, 613-14 (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, 429 Mass. 774, 711 N.E.2d 165, 167 (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., 163 N.J. 200, 748 A.2d 539, 541-42 (2000) (former domestic partner visitation); In re O‘Donnell-Lamont, 91 P.3d at 724, 730 (grandparent custody); T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913, 914 (2001)
{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, 32, 132 N.M. 772, 55 P.3d 984, 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
{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, 117 S.Ct. 2258, 138 L.Ed.2d 772 (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, 132 N.M. 772, 55 P.3d 984, 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 parenthood. See Lehr v. Robertson, 463 U.S. 248, 259-60, 103 S.Ct. 2985, 77 L.Ed.2d 614 (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, 120 S.Ct. 2054 (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, 98 S.Ct. 549, 54 L.Ed.2d 511 (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
{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, 132 N.M. 772, 55 P.3d 984. 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.
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, ¶ 12, 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.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
{25} Mother‘s brief in chief argues that “there 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 circum-
{27} Our Supreme Court established the requirement of extraordinary circumstances in In re Adoption of J.J.B., 119 N.M. at 652, 894 P.2d at 1008. We elaborated on this requirement in Ashleigh, 2002-NMCA-103, ¶¶ 24-32, 132 N.M. 772, 55 P.3d 984. Both J.J.B. and Ashleigh cited several 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 “extraordinary 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, 132 N.M. 772, 55 P.3d 984 (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
{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 ultimate-
{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.
I CONCUR: JONATHAN B. SUTIN, Chief Judge.