Huey v. Lente
514 P.2d 1081
N.M. Ct. App.
1973
Check Treatment

*1 enactment, but legislature that the cannot The Bureau also argues that tax non-emergency make legislation payer effective has its waived to have the ninety less than days present after enactment. contract taxed at old rate be State ex rel. New Mexico State Bank v. cause admitted register failure to Montoya, 22 215, P. 359 the contract in G.R.Reg. accordance with 66-1, supra. argument This is without 23, IV, Provisions similar to Art. su- § 66-1, By very merit. its G.R.Reg. terms pra, are cited the author of the annota- supra, only permits registration of con tion at 132 A.L.R. 1048 as one of prior 1, tracts entered April into major 1969. why phrases reasons such as Having regulation drafted the in that these presently under giv- consideration are terms the Bureau cannot argue that en meaning. technical failing comply regu terms greater “In the number of cases the lation, apply face does not its ‘passage term appearing this act’ taxpayer, taxpayer that waived its the body legislative enactment as under Compare the statute as enacted. describing the time brings element which Baking Rainbo El Co. of Paso Commis facts or condititons within or its without Rev., sioner of P.2d 406 operation has been desig- construed as (Ct.App.1972). nating referring time when The decision of the Commissioner is re- goes act into effect rather than to the time of its port its technical rather sense are “ “Among the [*] [*] construing [*] enactment or * * * reasons the word than that advanced approval. to construe ‘passage’ its natural sup- versed ceedings SUTIN and It is so ordered. consistent with HERNANDEZ, JJ., cause is remanded for opinion. concur. bring term as oper- so within the ation something of the act that occurred

before the act took effect would vio- provisions pre-

lative of constitutional

scribing legislative the time at which en- go actments shall into effect.” 132 A.L. 1051,1052.

R. at Huey, HUEY and Bonnie Gerald opinion are of the that in We Applicants-Appellees, “ * * * terpret phrase passage ” * * * this act to refer date LENTE, Respondent-Appellant. Mary C. prior 1, 1969, July violate Art. 1058. No. IV, 23 of the New Mexico Constitution. Appeals ex State rel. New Mexico State Bank v. Court of Mexico. New Montoya, supra. Accordingly, hold we June 1973. phrase technical is used its July 18, 1973. Certiorari Granted July 66, supra, sense refers Co., 34 See Pac. State Southern can, There 281 P. 29 course, be doubt that the Commissioner legisla by regulation

cannot do what the cannot do statute.

ture we foregoing discussion

In view of Com- unnecessary to consider

find relating to the arguments other

missioner’s

interpretation of §

587 *2 minor, provisions and then (E) the

judgment. Subsection E reads as follows: hearing may grant E. court after deny judgment terminating parental rights. A court termi- *3 parental nating rights has the same ef- adoption as an judgment has in ter- fect minating parent-child relationship, including terminating parental rights, dispensing consent, and with any required adoption pro- notice of an ceeding a relationship whose judgment. [Emphasis terminated added] “The same effect” means the consequences, Tay same result or the same Co., lor Valley v. Midland R. F. Schoen, Stevan Albuquerque, respon- (D.Okl. (1912), provided as that § dent-appellant. supra, 22-2-33(A), entitled “Effect Prelo, Judgment Adoption . Albert, Marc .” Jr., . Harold B. Ahern, Montgomery Albert, & Albuquer- provides part: (A) Subsection que, for applicants-appellees. A . has following matters within effect as to

OPINION jurisdiction or before court: parents (1) relieve the natural SUTIN, Judge. parental rights responsibilities; all This appeal involves termination of rights rental year of mother to her four relationship to create the (2) son, old pursuant 22-2-23, N.M.S.A. § petitioner and child between 1953 (Vol. Supp.1971). “Termination adopted, as if individual to be Rights” Parental “Adop- is 4 of the 1971 legiti- adopted the individual tion Act.” petition- mate blood of the descendant The trial court terminated the mother’s purposes er all .... [Em- rights son, appeals. to her she phasis added] We reverse. Rights,” of Parental there- “Termination fore, parents relieves natural “the Section Entitled rights responsibilities,” of all Rights" "Termination Parental relationship par- but it creates “the also Invalid. ent and child between the [initiator] trial, opening At the a serious discus- adopted, to be . dis- individual sion between trial court and counsel consent, and with re- pensing with meaning arose over the effect quired adoption proceeding notice of an judgment provision of of Pa- “Termination [Emphasis .” added] Rights.” rental provides 22-2-23 Section for, termination; (A) court causes of who The trial believed (B) parents.” The initiate termination “the child has (hereinafter called meant “initiator”); attorney “this is in (C) appli- believed contents of the mother’s cation; Huey’s “that (D) place attorney the time and hear- believed limbo.” ing, spoke we could forth- copy thereof then notice with a once the application given bring adoption petition.” parents our purpose of this section was First: usual statu- are confronted with We respect to tangled, tory problems arise under .terminate It was not intended cre- child. minor Although no similar

mixed-up language. relationship parent-child between ate in statu- legislation has cited assist been minor application and the “initiator” construction, none tory found we have adoptive parent-child relation- This un- child. that set forth similar adoption statute. purpose ship (E), der 22-2-23 “adop- declaring to be- “Termination” By Rights” stat- Parental “Termination of tion,” the statute forces the A Mexico. utes an innovation in New adoptive parents to and the endure by the act drafted model termination pains adoption by “initia- of a contested Depart- Bureau, United States Children’s adopt a minor not allowed to tors” Health, Education and Welfare. ment *4 for application The of Statutory “initiator” See, Katz, Trends Judicial a parental rights per- not termination Adoption, Georgetown 51 in the Law 22-2-24, supra, may adopt under son who For other states which (1962). § L.J. have set “Adoption Act.” statutory termi- up procedures to Ritz, child, see, parental rights a nate (B) (2), 22-2-23 An “initiator” under § Rights to Free of Parental Termination of a mi- supra, be “the custodian (3), 579, Adoption, 32 Child agency.” or “an nor” N.Y.U.L.J.' “ as The “custodian” is defined 1970, statutory individual, adopted au- Arizona a person having custody In a of an individual, thority of Parent-Child guardian person for “Termination an 8-537, Relationship.” Ar- 8-531 to an guardian Section a ad litem for individu- Statutes, Supplement- al;” izona (J), Revised 22-2-21 N.M.S.A.1953 Section appears Termina- Supp.1971). It to follow Model (Vol. a

tion Act. This statute creates bifurcated person “any agency” is “An defined adoption. proceeding for specially certified, licensed otherwise or Upon juvenile court must: termination the place minors for empowered by law to Appoint guardian an individual as “1. supra. (C), adoption.” Section 22-2-21 person;” Appoint an in- or “2. child’s “initiators” are that such It obvious person guardian dividual as child’s by law to terminate a natural not allowed legal custody individu- vest another parent’s rights to create an artifi- in order agency.” an al or in authorized relationship. parent-child adoptive cial purpose proceed- this bifurcated The only to seek The “initiators” are allowed reduce, completely if elimi- ing not is “to termination. nate, adoption.” contested Frondorf language of vague and indefinite Adoption, Harper, Arizona’s New Face 22-2-23, supra, uncon- the statute makes § A.S.U.L.J., 1972,No. 127 at 149. Prince, 52 N.M. stitutional. State v. seeking statute on “Termina- person New Mexico A Rights” a bifurcated rights” is not should tion of Parental “termination of dispo- proceeding. proceeding It does not results know whether prior McMaster, custody an of the child’s Or. adoption. sition State be, in appears It proceeding. adoption [concurring 576 (Or.1971) effect, an adoption proceeding within an opinion]. adoption interpretation Its statute. 22-2-23, supra, sets Second: Section vague, It is confusing in the below. court court under which the three reasons forth indefinite, impractical, and unrealistic rights. Termina- terminate can court. proceedings. issue in the tion qualification the “initiator” is 22-2-23, for the supra, is invalid Section person phys- Any unfit actual an following issue. reasons: child, can custody judgment, of a minor initiate Under this ical question the sole right proceedings to terminate a mother’s was whether the facts warrant the court in successful, completely “initia- son. If severing own all ties between the parent of the child. mother tor” becomes and her son. The welfare of the child is not controlling. Section Third: “Effect of Judgment of Adoption” was provides judgment by adoption a with- n not included judgment. in the This is parents. out “Parental consent clear indication that vague, 22-2-23 is in- rights” is defined as “. . all definite and uncertain. child has been minor, in- to a reference placed limbo, adop- without natural or control, cluding parental or parents, tive custody guard- without or adoption, withhold re- consent to an toor ianship. It denies possibility the child the hearing petition ceive notice on a being placed in a new home and becom- adoption;” [Emphasis 22- Section added] ing part family. years, many For he very 2-21(1), is at Consent may be cared for in an institution or be adoption foundation of Before statutes. transferred from foster home to foster trial can court consider merits home. The against respondent is proceeding, must process violation of the due clause of first determine whether the consent II, Art. 18 of the Constitution of New given dispensed has been with. *5 See, State, Mexico. Robinson v. 34 N.M. 250, Railston, Nevelos 65 v. N.M. 335 P.2d 557, 287 P. 288 (1930); Annot. 76 A.L.R. 573 (1959). 662. deprives A statute which Furthermore, if 22-2-23 § consent, permanently of his child without statutory proceeding “Terminating Pa opportunity or without notice or Rights,” rental “Adoption,” hot it heard, depri as an void unconstitutional does not scope come within the of the title process vation of without due of law. IV, the Act and violates Art. 16 of § Mayernik, (Mo. In re 292 562 S.W.2d New Mexico Constitution. ; Manzo, 545, 1956) Armstrong v. U.S. 380 1187, See, Other reasons (1965). 85 S.Ct. 14 could be L.Ed.2d 62 stated which de- Stanley Illinois, 645, 22-2-23, supra, clare 405 v. U.S. 92 S.Ct. do invalid. We not 1208, Adop necessary. deem it (1972). 31 L.Ed.2d 551 In re K., 702, (Mo.App. tion 417 709 S.W.2d (2) The Trial Court Lacked Jurisdiction 1379, 1967); Annot. 45 A.L.R.2d 1380 to Rights Terminate the Mother’s to Adoption In re of K. said: her son. Adoption the dissolution of a involves requested The mother to court constitutionally protected relationship, Respondent find “that will not consent consent, unless the or there her child’s by Applicants showing is a substantial some condi- anyone else.” The trial no court made necessity dispensing with tion finding on consent did not “refuse” consent, power has enter the court request provided this as 21—1— adoption. Adoption may decree 1(52) (B) (a) (Repl.Vol. (5), N.M.S.A.1953 simply be decreed to enhance the moral 4). undisputed supports evidence temporal welfare of the child. requested finding and we affirm Bos- it. the trial court Fourth: Inc., Mines, well v. Rio De Oro Uranium reads: 457, 68 (1961); N.M. 362 P.2d 991 Lamon- ORDERED, AD- IT IS HEREBY 452, ica Bosenberg, 73 389 N.M. DECREED that the AND JUDGED 216 (1964). rights Respondent rental ... they jurisdic Consent to adoption the minor child ... is a requirement. hereby tional powerless terminated. Courts are parent-child copy agreeement. They the natural relation retained a alter they signed They it. ship and an artificial one unless read it before under- create unnecessary They agreed comply consent is or waived. Barwin stood it. with it. Reidy, They child 307 P.2d 175 were aware that minor was permanently P. (1957); returned to the mother Patton, Hill Lehman, They Friday, 2d (1938); Onsrud v. March terminating. plan told that the foster was Services, Through Health and Social The trial court did not find up picking had been her child on mother dispensed unnecessary, consent was with of ends, Friday week and the caseworker relinquished. juris The trial lacked court Huey Department told had right to to terminate diction the mother’s decided the mother wanted her child and her son. give right away. going him to was her ' ment, with provisions nent: written ther and foster knowingly lic all the conditions Services Care.” Public er’s plans authorization. On June policy 2. Leave 3. * 7. [******] them of foster children. Of the foster - Welfare, Report promptly Engage in because Agreement * to her son was stated, Contrary to return to judgment terminating Judgment children 1969, the They agreed foster willfully mother, signed * relating entitled “Child Welfare no parents. agency Hueys, for Foster following children, except Public * adoptive planning illnesses, behavior violated a to the contrary the Trial court Department of Policy. as foster fa- comply with * applicants, making placement are the moth including Family agency formal agree- * perti- pub ten of Welfare. tion of the Welfare adjustment mation about application for termination of the mother’s consultation application for sentence child be tion written said: On rights to mother has he had and all. hadWe He elaborated grow The trial place. No, When Mrs. March three why ma’am. keep to love him. agreement, returned to of strictest a breach of grown Instead been, he problems, but this all' years and all and we 13, 1972, in him for three own long explanation Huey refused never had him But have son. confidence, questioned you illnesses, was asked Department of Public Department treating Especially when to follow been part mother. Hueys filed their can’t take violation agreement, years and not with of behavior was: they filed in the first their if her our Mr. *6 the direc- the child His first mother’s felt that required family infor- Huey peti- and she problems foster chil- adjustment supra. This and 22-2-23(A) (3), dren, agency on and consult with as follows: section reads their children confidence, agency. 9. [******] medical Treat and their to be shared need. information families in strictest only about foster misconduct, rental care education or other al sary for his health The or minor is without physical, mental or faults inorals, control, care or habits by or or reason control subsistence, proper emotion- neces- par- par- neglect or or refusal son as foster ent obtained ent, so, provide them They when able to do agreement. the above under by physical or reason mental inca- or Engage adoptive planning pacity necessary for foster except children agency minor, and other care for the if authorization. the court finds that conditions requests These were not “refused” as behavior, neglect causes of such or inca- provided by 21-1-52(B) (5), supra, (a) pacity are irremediable or will not be undisputed since the supports evidence by parent, remedied and that rea- requests, these we affirm them. son thereof suffering is minor or question now judg- arises: Is the probably will suffer physical, serious ment of the trial contrary public mental or emotional harm. policy in “yes.” New say Mexico. We The trial findings court made of fact public policy of this state conclusions law which cover directly derived implication clear provisions subsection (A)(3), from the established law the state as appeal, On challenged the mother most constitution, found its judi statutes and findings. There is merit to chal- opinions. cial Reidy, supra. Barwin v. lenges. But we are concerned with the There “unjust overreaching” here failure of adopt the trial court to certain parents, foster as there bywas requested findings of the as Re- mother parents in Reidy, supra. Barwin v. spondent challenge court, trial public as a policy, matter of state, Under the statutes of our application by Huey. hear an filed mother the natural guardian her chil- dren, duty and shall have the care requested findings follows: 32-1-1; education of her children. Section August, 1971, 10. That aat full (Vol. Department N.M.S.A.19S3 5). The meeting, staff Depart-' the New Mexico of Public charged Welfare with adminis- ment of Health and Social Services supervision tration all welfare per- amade decision to return the child activities, placed service children manently Respondent. in this That adoption, service and care for regard, plan of reacquainting the child family foster homes. It formulates de- family through with his increased visit- plans. regula- tailed It rules and makes ing begun. tions, take such action deemed Applicants acquiesced 11. That in this necessary carry or desirable to out the plan, cooperated fully by preparing Act, visions of the Welfare which are not family, child to visit his and encour- it. 13-l-4(c), inconsistent with Section *7 aging approving and of the visits. That (d), (Repl.Vol. 3). N.M.S.A.1953 In addi- plan the was successful and March- tion, provisions Adoption the Act permanently 1972 was the date fixed to protection rights. assist in the of parental return to the child his home. nor ico cants Gerald signed Services, agreeing, [******] 21. 2. Leave to the child] Department plans That agreement into their foster for foster prior Huey of Health and Social with the New Mex- part, and Bonnie agency accepting children, including to: home, Appli- the [the making Huey mi- Herrera proper position, has been entered into a contract ci, 45 N.M. equity for courts to On and is from its the C & R will afford 133, 112 issue binding due mistake relieve Paving without P.2d 515 contracts, relief. effect where either Company, fraud or im In party it re (1941); against is Toc im agree- parental changes, visiting, placement their were bound relatives, parents Department the ment of Public return with Wel- two, Department cooperate agency fare. As the the between pos- plans. carrying out of Public was entitled to these Welfare tional; I this case New Mexico believe should decid- of the minor child. session Cromer, grounds. In Department ed non-constitutional of Public Welfare v. opinion following my have first I out 197P.2d 902 set opinion disagreements Judge Sutin’s April born The minor child was why then have discussed reasons the mother and Because son judgment think the trial court’s should ill, ad Department of Public Welfare reversed. helpful if she it would be vised mother to care for the someone allow (1) vagueness. the termination 3, 1968, July got until she well. On statute. For Placement mother executed a “Release document, By Transportation.” supra, 22-2-23, is agree I do not that § boarding her son vague purpose mother consented and indefinite. sole Its Department, and parents parental a home selected to relieve unfit of all by a her Therefore, care for son rights responsibilities. consented to medical given for physician. No consent phrase “has the same effect” as used Thereafter, Hueys became adoption. statute, E subsection of the termination parents pursuant my opinion, incorpo- foster must be construed to Department. The into with the A(l) entered rate of subsection child, being party statute, third adoption mother of the N.M.S. agreement, beneficiary Huey (1971 Supp.Vol. 5). A. Under McKinney Dav period to its benefits. entitled there some statute well be is, parent’s rights 332 (1972). 503 P.2d time after the natural terminated and before an addition, philo- adopted In we have “ ‘ rights in ceeding completed pri- sophical principle . . . created, if see this others I do not ever. legal natural and mal instincts and the words, In a constitutional other defect. parents may lightly rights not be ’ need not create a statute as this courts rec- . All brushed aside persons consti- rental in other ognize . best interest tutional. altogether by materi- child is not measured love and al and economic factors — problem and notice consent place in the find affection must some 22-2-23, supra. all this item covers a scheme and we know Patton, multitude of Hill weaknesses.” erroneously opinion my Judge In Sutin concepts of entirely separate mixes the two determining that the is re- notice and consent of the trial court permanently of versed, “deprives proceedings to terminate statute consent, dismissed, or without-notice his child without mother’s son 22- opportunity mother heard.” Section son must be returned to 2-23, dispense notice does not forthwith. respect the natural It sois ordered. *8 D, 22- hearing. termination Subsection 2-23, supra, requires that: LOPEZ, J., concurs. filing application, “Notice of HERNANDEZ, specially concurs. J., hearing, place of and of the time and HERNANDEZ, concur- Judge (specially copy application accompanied by a ring). given applicant by be shall minor, parents the lower custodian I concur the reversal of rep- minor, any appointed person to return court’s decision and the order agree any any person party not resent other child to his mother. I do [Emphasis is unconstitu- the court orders. mine] statute that Notice, however, nothing has to do requesting par- district court that a natural parental The termination ent’s parental rights consent. statute or her guidelines out clear under which sets be severed. The effect of such a termina- parent’s rights in a be off. nothing complete child cut tion is less than and final parents required. The consent of the not parent’s legal extinction in a Virtually every adoption state statute in country grounds under contains some grounds As for termination of petitions may adoption granted which rights, applicant parents. without consent of the show, alternative, must in the that: “ jurisdictions recog- [M]ost “(1) cause exists under [for termination] that there are where nize some situations Act; law, Adoption other than the express required. consent not In those “(2) by the minor has been abandoned situations, implied consent is either parent; or neglectful the basis of conduct on the “(3) proper paren- the minor is without part parent dispensed of the natural or control, subsistence, tal care and or edu- entirely of conduct or on the basis necessary cation or other care or control which, involuntary, occurrences while physical, for his mental or emotional consequences have the same toward the morals, by health or of the mis- reason neglectful Katz, child as conduct.” conduct, faults or habits or When Parents Fail: The Re- Law’s neglect parent, or refusal sponse Breakdown, Family 115-116 provide by when able to do so, them or physical incapacity reason of or mental adoption The New Mexico contains statute paren- necessary specified grounds certain under which con- minor, tal and other care if for the par- adoption petition sent to the from “a court finds that the and caus- conditions ent who has abandoned the mi- or deserted es behavior, incapaci- neglect of such or adopted” required. nor to be is not Sec- ty are irremediable or reme- will not be tion (1971 22-2-26 (A), N.M.S.A.1953 parent, died and that reason Supp.Vol. 5). suffering thereof the minor is or will overwhelming There are times when probably physical, mental suffer serious require interests of fami- the child that his or emotional harm.” ly irrespective situation be remedied are licensed the New parents. consent his natural fact Mexico Health and Social De- Services required consent under partment parents. as foster As (HSSD) 22-2-23, supra, does not stat- render the they assigned such take children to them process

ute unconstitutional on either due under written with HSSD “public grounds. policy” provide parental temporary peri- care for agree I the decision of the lower ods for children whose are unable reversed; however, should to do so. The record reveals that solely reverse the reasons set Hueys have taken in several children under out below. parent plan the foster including question here, Lente. Jesse appeal proceeding

This is the first brought statute, under the termination problems Because other medical questions number of attention, involves a required immediate impression. 22-2-23, supra, first Section hospital Lente remained in the for a sub- part was enacted as a of the revision of period stantial after the birth of Jesse the New Mexico statute and was unable to care for Under him. *9 showing, upon vides that proper certain a agreement terms of a written with HSSD specified parties may bring an action voluntarily gave up Mrs. Lente the care of < “boarding placement agreement for home The written child between the by Hueys in a home to be selected and HSSD. Department

the New Mexico of Public agreement executed the between un- apparently Welfare It was [HSSD].” parents, Hueys, and as foster HSSD represent- and derstood both Mrs. Lente vides, in part, that: signing atives of at time of the HSSD “Applicants agree they that will: agreement relinquishing of of this that her custody to temporary until making of agency the Leave to the “2. time as her medical and financial situation children, including plans for foster permitted properly her care changes, placement visiting, rental relatives, and co- return had Sometime after Mrs. Lente released carrying operate agency in out with the HSSD, sent HSSD plans. Jesse Jesse these Hueys foster under the standard planning Engage adoptive in no “3. for au- agreement. Except peri- for short written except agency foster the child ods visitation Mrs. Lente [Emphasis thorization.” mine] Hueys since that has remained with agreement time. is ir- argue that this Petitioners Hueys between to this action relevant from After Lente was released Mrs. disagree. contract I and Mrs. Lente. hospital regained her health and had conjunction read in is relevant and must support, she tried some financial secured Lente signed Mrs. agreement Through a get child series back. custody voluntarily relinquished when she mixups lost track almost incredible HSSD boarding temporary to HSSD Jesse re- child, consequence and as Jesse agree- both I that purposes. Since believe Huey two for over mained home this court action to this are relevant ments despite to locate Lente’s efforts years Mrs. relationship existing must characterize custody. regain HSSD him and When and, sec- HSSD Mrs. Lente and between finally Jesse, a conference relocated staff Hueys. ondarily, HSSD between determined that was held which was that both docu- together, conclude Read mother. the child should be returned his agency an essence create what is ments department Lente notified both Mrs. parties. relationship between Hueys and set the decision Shortly parties in- necessary before date for return. that “It Jesse’s relationship date, Hueys brought this legal that action. to create the tend to the subject agency or to themselves court The trial found favor upon imposes the law liabilities which Hueys and ordered the it, but them as result of reverse Lente I would Mrs. terminated. indicated in some manner principal has giv- First, reasons. two him, agent is to act for that the subject to custody temporary en of Jesse act agrees to agent so acts or es- provisions of written subject to his control.” behalf relationship tablishing agency between Abraham, 64 By Drilling Company v. Totah themselves, and Mrs. Lente. HSSD Mrs. duty bringing they action breached HSSD Lente, principal, contracted sit- loyalty principal in such inherent boarding of her temporary care for the Second, findings uations. hospital. in while she remained inability relating of Mrs. by both agreement was understood proper a fit Lente to re- parties mean that Lente evi- supported are not substantial Jesse time as caring at such sume for her child dence the record.

595 physically HSSD assumed she able. since initiation this the of action the responsibility seeing physical attempt to the for the to terminate Mrs. Lente’s practice of rights needs the Since Hueys occurred while the in a were per- or fiduciary her, HSSD does have the facilities relationship they with should day-to-day for of permitted sonnel actual care chil- not be prevail to in the matter. dren, department the entered into turn I appro- do not it believe that either is agreement Hueys an for the care priate permit persons or wise to who take agreement expressly child under an unambiguous children under the clear and reserving to HSSD and to the child’s rela- terms of the parent agree- HSSD foster responsibility planning tives the for the ment to maintain to actions terminate the future, including child’s return the rights of natural who agency child either to the to child’s or the have turned their children to over HSSD Thus, parents. Hueys agents of were they under what a temporary to assume providing purpose HSSD for the of period subject to their wishes and desires. day-to-day care of the sub- child were I believe that hold to would im- otherwise agents agree- of of her Mrs. Lente because pair parent plan the HSSD .foster ment with of Restatement HSSD. subject parents agree tempo- would who Agency sub-agent defines a as: rary boarding pos- of their permanent rights sible of their loss in their person “. appointed . an children at happens the wish of whoever so, agent empowered perform to do physical custody have of the child. agent functions undertaken principal, but whose conduct Support (2) Substantial Evidence to agent agrees principal pri- Findings Relevant Fact. of marily (Second), liable.” Restatement matter, As large part a threshhold of Agency 5(1) (1958). the focus findings court’s Hueys agents If were HSSD and greater part petitioners’ presen Lente, sub-agents of clear Mrs. tation of evidence involved matters they occupied fiduciary position hold a matter irrelevant as respect department and to both to the Findings of law. of the trial court 50 subject Lente various through (numbers converted from ro duty including of fiduciaries duties Huey’s man numerals) deal with suita general loyalty. he who “The rule is that bility adoptive parents. findings These act mat undertakes to for another proceeding are not relevant to a in the or shall not ter trust confidence 22-2-23, supra. By unambig the clear and against in same matter act himself statute, uous con sole integri relying upon terest' the one his applied pro sideration to be in termination Bank, ty.” Rice First National ceedings relationship parent is the “a ; With, 99, 171 Canfield v. (1946) respect to a minor.” su pra. comparative analysis A as to which parties the better custo duty loyalty owed a both dy scope for the is not within the by filing and Mrs. HSSD Lente Railston, proceeding. this Cf. Nevelos duty. That this action breached that P.2d 573 Hueys may initially into the have entered agreement rights intent good faith with no Termination .of “It is of is not little a child not a matter to tak- breach material. agency lightly. Supreme pointed en moment whether As our Court intent, Railston, supra, fraudulent out made with Nevelos v. “[t]he agent relationship after he to covetousness between succumbs and child is upon .” Rice v. bundle of enters duties human fun- Bank, Accordingly, importance” damental First National because of *11 596 accept conclu- not bound to purport court is

importance which statutes Gillespie relationship “being sions as ultimate facts. this alter or abolish O’Neill, 141, 28 P.2d 1040 (1934). 38 N.M. con- common law are to be derogation of parent and strictly strued through 9, Findings through 25 of of fact 5 favor relationship" preservation [Em- 31, through of the birth and 34 39 concern of phasis mine] ille- their Mrs. Lente’s seven children disposed say conclu- gitimacy. I am not importance of the fundamental Because large of illegitimacy sively that numbers there a termination action and because may not in an overall factor express nothing in the is fitness; but as determination of persuades legis- me that the which statute noted, the ter- court itself under a different burden see lature intended statute, mination proof depart from the burden of reason here, important imposed Supreme ac- “. . evi- by Court other . test dentally you assuming involve the have tions similar nature [sic] statute, the situation as in the rights. The bur- described severing parent’s party cannot be by any Court has to find that it either proof to be assumed den of will not be remedied.” remedied or seeking that unfitness by ev- must demonstrated natural testimony of Mrs. The uncontradicted convincing. clear and idence which is li- a tubal that she submitted to Lente was Railston, supra; Petition Cf. Nevelos v. in- gation, operation her which renders 1404 Quintana, 83 N.M. 497 children, shortly capable bearing more Supreme Court Nevelos the In findings of birth of after the Jesse. satisfactory, phrases “clear and used the illegitimate births relating fact something proof beyond akin to almost support the do not Lente’s children Mrs. doubt, ‘clear and indubita- byor reasonable “ir- her behavior conclusion of law that ” what I am that ble evidence.’ convinced remedied.” remedial and will not be that bur- in Nevelos meant was Court part Finding fact 40 number states “something proof stronger den of which is Mary Respondent that “visited with Jesse yet ‘preponderance’ than a some- mere Lente, sleep ” compelled to and was ‘beyond doubt.’ thing less than a reasonable slept Mary who room with Lente same Palmer, In re P.2d 264 72 N.M. 383 thorough .” A with another man. ; Lumpkins McPhee, 59 transcript that reveals search (1955). Nothing in this rec- finding as- only support was the for this applied this ord indicates that the trial court Jesse, the five sertion proof. stricter burden of action, dis- year subject had this old findings of fact relevant None of the arrangements in Mrs. sleeping cussed the relationship to the mother’s “another Lente’s home and that he had ability properly care child and her tes- daddy.” gave direct No other witness supported substantial evi- the child are repre- timony man”; as to this “other dence in record. evidence Substantial both HSSD, supervised who sentative evi- as “such relevant has been defined regular visits of unannounced might accept as as a reasonable mind dence we Lente asserted “. home, adequate support for a Sa- conclusion.” have we do unannounced make visits and Bradford, 465 P.2d mora v. man several there hasn’t been times Ray, McCauley (Ct.App.1970); designed finding around.” If P.2d 192 irresponsibility on to indicate sexual Findings through part recita- contradicted 49 are mere Lente, supervisor statutory casework applicable considera- tions of assertion of see Mrs. don’t imposed supra, phrased that “We who testified tions have being promiscuous, and I appellate conclusory language. An Lente as promiscuous. never her as viewed IAnd preponderance unfit. A mere evi- my don’t think workers have viewed dence is not sufficient. *12 promiscuous.” hearsay I conclude that the Finally, findings by the trial court must point provided by evidence Mr. and supported by substantial evidence Huey Mrs. as related to them five may record and not be mere conclusions year old the face of contradic- drawn the termination tory provided by rep- evidence the HSSD statute. who resentatives had observed Lente only, For these agree reasons that the part home as a of their official duties is judgment of the lower court should be re- not “such relevant evidence as a reasonable versed and that the child should be imme- might accept adequate support mind diately to his returned natural mother. Bradford, supra. conclusion.” Samora v. findings of the trial court with re spect home, adequacy of the Lente Lente,

the financial situation Mrs. present

education of the children and the

habits and conduct of Mrs. Lente have competent

basis in evidence in the record.

The uncontradicted evidence HSSD representatives nurse, visiting and the Mrs.

Pecha, Huey, Gerald HUEY and Bonnie lead that while conclusion Petitioners, clearly affluent, pro Lente viding children, adequate home for the Mary LENTE, Respondent. C. looking education, after their and was capable taking proper steps to insure No.

their regulate .health and their conduct. Supreme Court New Mexico. The mere fact that had she was and been Sept. 28, 1973. recipient welfare is not evidence of unfit Findings for ness. which total there support may

lack of be set the record McPhee, Lumpkins supra;

aside. Orte

ga Ortega, 33 273 P. 925 briefly,

To summarize brought

proceedings properly evidence which should

considered evi- parent’s

dence which relevant to the be-

haviour, relationship attitude may

child. The court not balance the

backgrounds parties and decide party envi- “better”

ronment for the If considera- such applicable they applicable in

tions are

adoption proceedings and not actions

brought terminate the natu- parent.

ral fitness, parent’s

The evidence as clearly convincingly as to

must

persuade parent is the fact finder that