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.
No. 25,694.
Court of Appeals of New Mexico.
June 30, 2009.
2009-NMCA-082 | 215 P.3d 783
WE CONCUR: MICHAEL D. BUSTAMANTE and ROBERT E. ROBLES, Judges.
Caren I. Friedman, Santa Fe, NM, Collopy Law Office, Michael John Collopy, Hobbs, NM, for Appellant.
Roxanne Lara, Carlsbad, NM, Guardian ad Litem.
OPINION
CASTILLO, Judge.
{1} Grandparents filed a petition to adopt Father‘s child (Child) and served Father with
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,
{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
{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 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, ¶ 17, 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}
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
{11} Consent may either be voluntarily obtained, see
{12} In addition, consent to adoption cannot be withdrawn—even prior to the adjudication of the petition—unless the parent can establish fraud. See
{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
{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
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 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
{17} Further,
3. Open Adoption
{18} Father also argues that because Grandparents alleged in the petition that the adoption will not be open,
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 prereq-
{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
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
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
{26}
{27} Father also relies on
[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
{29} IT IS SO ORDERED.
CASTILLO, Judge.
WE CONCUR: MICHAEL D. BUSTAMANTE and MICHAEL E. VIGIL, Judges.