In the Matter of Guardianship of PATRICK D., a child, FREEDOM C., Petitioner-Respondent, v. BRIAN D. and PEGGY D., Petitioners-Petitioners.
Docket No. 32,944
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
May 30, 2012
2012-NMSC-017
CHÁVEZ, Justice.
ORIGINAL PROCEEDING ON CERTIORARI, Michael T. Murphy, District Judge
The Pickett Law Firm, L.L.C.
Mark L. Pickett
Las Cruces, NM
for Petitioners
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Edward R. Ricco
Jocelyn C. Drennan
Albuquerque, NM
for Respondent
OPINION
CHÁVEZ, Justice.
{1} Several months after being granted sole legal and physical custody of Patrick D. (Child), Brian D. and Peggy D. (Grandparents) filed a petition for guardianship and custody pursuant to the Kinship Guardianship Act (the Act),
{2} Father appealed to the Court of Appeals, which reversed the district court. Freedom C. v. Julie Ann D. (In re Guardianship of Patrick D.), 2011-NMCA-040, ¶¶ 1, 24, 149 N.M. 588, 252 P.3d 812. The Court of Appeals analyzed whether the prerequisites of
{3} We granted a petition for writ of certiorari filed by Grandparents to consider (1) whether application of the Act is appropriate under the circumstances of this case, and (2) whether any of the prerequisites for its application were met. Freedom C. v. Brian D. (In re Guardianship of Patrick D.), 2011-NMCERT-005, 150 N.M. 667, 265 P.3d 718. Because we conclude that
I. PROCEDURAL AND FACTUAL HISTORY
{4} This case has an unusual procedural history. Child, Mother, and Father lived with Grandparents for three years, during which time Grandparents financially supported the entire family. In October 2008, Father moved out of the house after Mother ended their relationship. Father filed a petition for a protective order, alleging domestic abuse by Mother. By filing the petition, Father gained temporary custody of Child. Two weeks later, the district court dismissed Father‘s petition, finding that it was not supported by substantial evidence. Mother filed an emergency motion seeking custody of Child, and both parents sought sole legal and physical custody of Child. In response, Father filed a petition to establish paternity, determine custody and time-sharing, and assess child support.
{5} The district court held a hearing on Mother‘s emergency motion on October 27, 2008. Each parent testified that the other parent had engaged in dangerous behavior toward Child. The district court found that it was in Child‘s best interests for Grandparents to have temporary sole legal and physical custody, with an opportunity for Mother and Father to have time-sharing arrangements.1 The district court also appointed an expert under Rule 11-706 NMRA to make recommendations to the court regarding custody.
{6} At some point after this hearing, Father was detained by immigration officials because he had remained in the United States after his student visa had expired. Grandparents filed a petition for appointment of guardianship and custody under the Act on July 15, 2009, almost nine months after being granted sole legal and physical custody of Child, and while Father remained in detention. The district court held a hearing on all pending motions on October 19, 2009, after Father had been released from detention. Father, Mother, Grandparents, and Father‘s immigration attorney all testified during that hearing. The district court found Mother and Father unfit to raise Child, granted Grandparents’ petition for kinship guardianship, and provided time-sharing for Mother and Father. The district court also held that it would review the kinship guardianship and time-sharing in twenty-four months.
II. DISCUSSION
{7} The Act was enacted to ensure that children in New Mexico have the opportunity to be raised by their relatives when both of their parents are unwilling and/or unable to care for them. The Legislature explained the Act‘s policy and purposes as follows:
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 [
40-10B-1 NMSA 1978 ] 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.
{8} A person appointed to be a guardian under the Act “has the legal rights and duties of a parent except the right to consent to adoption of the child and except for parental rights and duties that the court orders retained by a parent.”
{9} The Act grants district courts the authority to appoint a kinship guardian where “the court finds that a qualified person seeks appointment, the venue is proper, the required notices have been given, the requirements of Subsection B . . . have been proved and the best interests of the minor will be served by the requested appointment.”
{10} Subsection B provides that:
A guardian may be appointed pursuant to the Act [
40-10B-1 NMSA 1978 ] 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;
(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 [
45-1-101 NMSA 1978 ].
{11} Grandparents contend that “parent” in Subsection B should be interpreted to mean that as long as one parent meets a requirement of
{12} The way in which the parties frame the issue would give our courts only two options under the Act. Our courts could grant a guardianship (1) if only one parent meets one of these conditions, or (2) if both parents meet the same condition. We conclude, however, that neither of these interpretations is correct, and that the Legislature intended that both parents need to satisfy at least one of the three conditions, regardless of whether they satisfy the same condition.
A. Requiring Both Parents to Meet One of the Prerequisites of Section 40-10B-8(B), While Permitting Each to Meet a Distinct Prerequisite, Is Consistent With Both the Plural and the Singular Meanings of the Term “Parent” in This Section.
{13} We review questions of statutory construction de novo. Debbie L. v. Galadriel R. (In re Guardianship of Victoria R.), 2009-NMCA-007, ¶ 7, 145 N.M. 500, 201 P.3d 169. In interpreting statutory language, “[w]e look first to the plain language of the statute.” N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm‘n, 2007-NMSC-053, ¶ 20, 142 N.M. 533, 168 P.3d 105. Ultimately, our goal in reviewing statutes is to effectuate the Legislature‘s intent. State v. Cleve, 1999-NMSC-017, ¶ 8, 127 N.M. 240, 980 P.2d 23. The Legislature has enacted the Uniform Statute and Rule Construction Act,
{14}
{15} The Legislature stated two policies in support of the Act: (1) “that the interests of children are best served when they are raised by their parents,” and (2) “[w]hen neither parent is able or willing to provide appropriate care, guidance and supervision to a child . . . whenever possible, a child should be raised by family members or kinship caregivers.”
{16} Our conclusion that the relevant policy and purpose of the Act is to facilitate and protect a relationship between the child and kinship caregivers when neither parent is able and/or willing to care for the child is consistent with each prerequisite in
{17} If we adopted Grandparents’ interpretation that only one parent needs to satisfy Subsection B, then courts could grant kinship guardianships even when one parent is able and willing to properly care for a child. That result would ignore the Legislature‘s clear intent to provide for guardianships only in those circumstances where neither parent can fulfill this role.
{18} Conversely, if we were to read
{19} Turning to the issue at hand, we are asked to decide whether the district court properly applied the Act in this case. We conclude that the district court properly applied the Act because the record shows that both parents satisfied
B. The Parties Adequately Preserved the Issue of Whether Both Parents Satisfied Any of the Provisions of Section 40-10B-8(B).
{20} Father makes two arguments as to why this Court should only consider Subsection B(1). First, he contends that the parties did not properly raise
{21} To properly plead a request for guardianship under
{22} Father also specifically addressed all three subsections in his response to Grandparents’ petition. Regarding Subsection B(3), Father argued that “[t]he petition fails to meet . . . item (iii) . . . [of
{23} Father‘s second argument, that the only issue in dispute before this Court is whether Subsection B(1) was satisfied in this case, is also without merit. The petition for writ of certiorari asks us whether the Court of Appeals properly concluded that Grandparents “did not meet the prerequisites for application of the [Act],” a phrasing which does not limit this Court to reviewing Subsection B(1). Consequently, we are free to assess the applicability of any of the subsections of
C. The District Court‘s Findings Adequately Support Its Application of the Act.
{24} We now discuss why we conclude that Subsection B(3) was satisfied in this case. Subsection (B)(3) provides that:
[T]he 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.
{25} Reference to “the parent” in the first sentence could be to either or both parents. In this case, the record reflects that Child resided with Grandparents without Father for more than ninety days before the petition for appointment of guardianship and custody was filed with the district court. Reference to “a parent having legal custody” can also refer to either parent. Id. As noted by Father, the district court had previously granted temporary sole legal and physical custody of Child to Grandparents. Thus, neither parent had legal or physical custody of Child. The authority relied upon by the district court for doing so is not in the record. The district court did not make a finding that Mother and Father were unfit to care for Child when it initially ordered legal and physical custody in favor of Grandparents, nor did the district court specify that “extraordinary circumstances” justified the change in legal and physical custody.
{26} Thus, the record is not clear whether the district court was suspending all of the rights of the parents by granting sole legal and physical custody to Grandparents. Had the court done so,
{27} Although the procedure employed by the district court was unusual, we conclude that the court acted in a manner consistent with the spirit and intent of the Act, which includes
{28} Further, the Act requires a petitioner to plead and prove which subsection(s) of
{29} Father also argued before the district court that
{30} Thus, we conclude that the Act was applied appropriately under the unique facts, circumstances, and procedure of this case. The complexity of this case would have been reduced had the district court articulated the findings of fact which supported the court‘s award of sole legal and physical custody to Grandparents and had the court stated the legal authority for its order. In addition, review of this case would have been less arduous had the district court also specified the basis for granting a kinship guardianship under these facts.2 District courts are encouraged to do so in the future.
{31} Two additional issues were raised by Father that merit our response. First, Father alleges that the Act should not be applied in a way that favors one parent over the other. Second, Father contends that this matter should be remanded to the Court of Appeals instead of the district court so that the Court of Appeals can address a notice issue raised by Father but not addressed by the Court of Appeals in light of its disposition of the case.
D. The Fact that Mother Remained in the Same House as Child Does Not Preclude Application of the Act.
{33} First and foremost, once the district court finds both parents unfit, as happened in this case, the court‘s duty is to act in the child‘s best interests. See Shorty v. Scott, 87 N.M. 490, 492-94, 535 P.2d 1341, 1343-45 (1975). Therefore, the extent to which the custody arrangement incidentally benefits one biological parent more than the other is irrelevant in deciding the proper arrangement under the Act once both parents have been deemed unfit.3 The fact that the district court‘s arrangement incidentally benefits Mother does not invalidate this arrangement.
{34} Second, as pointed out by the Court of Appeals, even if the kinship guardianship is set aside, the district court should have continued the interim custody arrangement in favor of Grandparents. However, even under that arrangement, Mother could continue to live with Grandparents and Child until the custody dispute is resolved. In re Guardianship of Patrick D., 2011-NMCA-040, ¶ 21. Therefore, whether Child was in Grandparents’ legal and physical custody as a result of a kinship guardianship or other formal custody arrangement is irrelevant. Mother would have still been in the same household as Grandparents and Child.
{35} Third, applying the Act, rather than being “unfair[],” id. ¶ 20, advances the important goal of allowing the parents to maintain and rebuild a relationship with the child,
E. Father‘s Argument that He Received Insufficient Notice Is Moot Because Even
{36} Father suggests that if we affirm the district court, we should remand this case to the Court of Appeals to address the issue of whether the district court erred in considering the merits of the petition (1) when Father was not given adequate notice of the hearing, and (2) before the district court had received the recommendation of the Rule 11-706 expert. However, we decline to remand this issue to the Court of Appeals because even if Father‘s claim has merit, the Court of Appeals can only order relief to which Father is already entitled, making this issue moot.
{37} We have recognized that “prudential rules of judicial self-governance, like standing, ripeness, and mootness, are founded in concern about the proper and properly limited—role of courts in a democratic society and are always relevant concerns.” New Energy Econ., Inc. v. Shoobridge, 2010-NMSC-049, ¶ 16, 149 N.M. 42, 243 P.3d 746 (internal quotation marks and citation omitted). “A case is moot when no actual controversy exists, and the court cannot grant actual relief.” State v. Pieri, 2009-NMSC-019, ¶ 7, 146 N.M. 155, 207 P.3d 1132 (internal quotation marks and citation omitted). We previously found moot a defendant‘s argument that the district court erroneously ordered the defendant‘s commitment for a crime that was not covered by the statute upon which the district court relied. State v. Adonis, 2008-NMSC-059, ¶ 1, 145 N.M. 102, 194 P.3d 717. Because this Court had found the commitment consistent with a different crime that was covered by the statute and remanded to the district court to enter a new commitment order consistent with its opinion, it held that the additional complaint about the present commitment order was moot. Id. In contrast, we found another defendant‘s challenge to a conviction was not moot, even though both the sentence and parole had been served, because the conviction continued to have collateral consequences for the defendant. See Garcia v. Dorsey, 2006-NMSC-052, ¶ 17, 140 N.M. 746, 149 P.3d 62.
{38} Here, as in Adonis, the Court cannot grant any actual relief that Father is not already entitled to receive. If the Court of Appeals were to determine that the decision was made without sufficient notice or information, all it could do is remand to the district court to provide a new hearing and consider the expert‘s report. Father is already entitled to a new hearing on the guardianship issue under the terms of the guardianship order issued on November 4, 2009. The guardianship order stipulated that the order would automatically be reviewed in twenty-four months. That time period expired on November 4, 2011, which was several months ago. According to Father, the expert report is now available. On remand, Father can request that the district court reconsider the kinship guardianship and take into consideration the expert‘s report.
{39} This matter is remanded to the district court to conduct a hearing post haste regarding the continued need for a kinship guardianship and the legal rights and responsibilities of Mother and Father. On remand, the district court should enter appropriate findings and specify under what authority the court is ruling, regardless of the outcome of the case.
{40} The Court of Appeals is reversed and this matter is remanded to the district court for proceedings consistent with this opinion.
{41} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice
PATRICIO M. SERNA, Justice
RICHARD C. BOSSON, Justice
CHARLES W. DANIELS, Justice
Topic Index
APPEAL AND ERROR
Standard of Review
CHILDREN
Custody
Kinship Guardianship
STATUTES
Interpretation
Legislative Intent