IN THE MATTER OF MAHDJID B. and ALIAH B., children, STATE OF NEW MEXICO, ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Petitioner, v. DJAMILA B., Respondent-Respondent, and ABDEL M. B., Intervenor.
NO. 34,583
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
December 15, 2014
John J. Romero, District Judge
ORIGINAL PROCEEDING ON CERTIORARI
Charles E. Neelley, Chief Children‘s Court Attorney
Rebecca J. Liggett, Children‘s Court Attorney
Santa Fe, NM
for Petitioner
Hinkle, Hensley, Shanor & Martin, L.L.P.
Julie Sakura
Santa Fe, NM
for Respondent
The Law Offices of Nancy L. Simmons, P.C.
Nancy L. Simmons
Albuquerque, NM
for Intervenor
OPINION
CHÁVEZ, Justice.
{1} Respondent Djamila B. (Guardian) was appointed by a family court as kinship guardian to Mahdjid and Aliah (Children). Petitioner Children, Youth and Families Department (CYFD) brought abuse and neglect proceedings in children‘s court against Guardian and Children‘s biological parents pursuant to the Abuse and Neglect Act (ANA),
{2} We affirm the Court of Appeals on different grounds. We hold that while kinship guardians are not necessary and indispensable parties to abuse and neglect proceedings, kinship guardians, nonetheless, have a statutory right to a revocation hearing in accordance with the revocation procedures of the KGA prior to being dismissed from abuse and neglect proceedings. Such procedures require an evidentiary hearing and compliance with the Rules of Evidence. There is no need for separate filings and hearings in the original family court that appointed the kinship guardian because the children‘s court presiding over the abuse and neglect proceeding has jurisdiction over the kinship guardian and the subject matter of the case to make decisions that are ultimately in the best interests of the children.
{3} Children‘s biological father (Father) intervened in this appeal after this Court granted certiorari. Father argues that his due process rights were violated because he was not given a fair opportunity to voice concerns in the dismissal of Guardian from the abuse and neglect proceedings. Although we briefly discuss Father‘s claim, we do not decide this issue because it is unnecessary in view of our holding on the primary issue. If CYFD continues to believe that a revocation hearing is warranted, Father will have the opportunity to participate in Guardian‘s revocation hearing.
I. BACKGROUND
{4} Guardian, who is Children‘s paternal aunt, became Children‘s kinship guardian pursuant to the KGA in May 2007 through a separate proceeding in family court. Children lived with Guardian from that time until June 2010, when Children were placed in CYFD‘s custody.
{5} In June 2010, CYFD filed an abuse and neglect petition in children‘s court against Children‘s mother, Father, and Guardian pursuant to the ANA. On June 30, 2010, the children‘s court issued a notice of custody hearing set for July 8, 2010. The children‘s court ordered a treatment plan requiring Guardian to submit to psychological and/or psychiatric evaluations, domestic violence and substance abuse assessments, and random drug testing as directed by CYFD. CYFD‘s initial assessment plan, which was attached to the children‘s court order, proposed permanent reunification of Children with Guardian by July 2, 2010. Reunification with Guardian remained the goal of the proceedings in orders following the first judicial review on November 2, 2010, the second judicial review on February 3, 2011, and two permanency hearings on May 10, 2011 and August 9, 2011. On August 9, 2011, the children‘s court adopted CYFD‘s proposed reunification plan pursuant to
{6} On February 16, 2012, CYFD filed a motion to dismiss Guardian from the abuse and neglect proceedings. At a permanency hearing on February 28, 2012, CYFD changed its permanency plan for Children from reunification with Guardian to adoption. CYFD‘s motion to dismiss also announced its intent to pursue termination of the parental rights of Children‘s biological parents. CYFD argued, in part, that it was “filing a motion for Termination of Parental Rights and [Guardian] does not have parental rights to terminate and will not benefit from following a treatment plan and whether she follows a treatment plan does not affect final permanency for the children.” Furthermore, without reference to any external authority that would support the requirement of “[p]er CYFD policy,” CYFD asserted that Guardian was not eligible either to adopt Children or to be a foster placement for them. In an order filed on April 17, 2012, the children‘s
{7} On May 8, 2012, the children‘s court held an evidentiary hearing on CYFD‘s motion to dismiss. Prior to commencing the hearing, the children‘s court addressed preliminary matters with the parties and ruled that “[t]he formal rules of evidence [would] not apply” during the hearing. The children‘s court explained that the formal rules of evidence do not apply during abuse and neglect proceedings except for adjudicatory or termination of parental rights hearings. The children‘s court also advised the parties that it would instead “weigh[] and balance[]” all of the evidence presented to “see whether the motion [to dismiss] should or should not be granted.”
{8} After hearing all of the evidence presented during the May 8, 2012 hearing, the children‘s court granted CYFD‘s motion to dismiss. The children‘s court briefly addressed the issue of the ongoing kinship guardianship, but it ultimately ruled that the children‘s court lacked jurisdiction to revoke a kinship guardianship appointed by a family court. The children‘s court also ruled that a kinship guardianship is “always a temporary status,” and that Guardian was not Children‘s legal parent. Specifically, the children‘s court expressed its opinion that the appointment of a kinship guardian does not divest the rights of the biological parents, and thus it cannot vest Guardian with full parental rights. The children‘s court ultimately ruled that CYFD had custody of Children, and because Guardian was not a legal parent, CYFD had complete discretion regarding Children‘s placement.
{9} On July 2, 2012, the children‘s court granted CYFD‘s motion to dismiss Guardian in an order devoid of findings of fact or conclusions of law. Guardian timely appealed the children‘s court order dismissing her from the abuse and neglect proceedings. In her docketing statement, Guardian argued, inter alia, that dismissal from the abuse and neglect proceedings was improper until her kinship guardianship rights were revoked pursuant to the KGA.
{10} The Court of Appeals held that “[t]he [children‘s] court erred in dismissing Guardian from the proceedings while she remained the kinship guardian of Children because she was a necessary and indispensable party to the pending case.” Djamila B., 2014-NMCA-045, ¶ 20. The Court of Appeals reversed the children‘s court order dismissing Guardian and “all subsequent orders entered in the case in proceedings that took place without notice first having been provided to Guardian” and remanded the case “to the district court to reinstate Guardian as a party respondent in the matter and for further proceedings in accordance with law.” Id.
{11} CYFD appealed to this Court, and we granted certiorari review. 2014-NMCERT-004. Father intervened in this appeal after this Court granted certiorari review.
II. DISCUSSION
A. Kinship guardians shall not be involuntarily dismissed from abuse and neglect proceedings unless the kinship guardianship is first properly revoked in accordance with the revocation procedures of the KGA and the New Mexico Rules of Evidence
{12} CYFD argues that the Court of Appeals erred in concluding that Guardian was a necessary and indispensable party to the abuse and neglect proceedings, and therefore she could not be dismissed from the abuse and neglect proceedings until her kinship guardianship was first properly revoked pursuant to the KGA. Resolving this issue requires a survey of the interrelationship between two groups of statutes, the ANA and the KGA. “Statutory interpretation is a question of law, which we review de novo.” Bank of New York v. Romero, 2014-NMSC-007, ¶ 40, 320 P.3d 1.
1. The Legislature enacted the ANA and the KGA with the intent to preserve family unity
a. The ANA
{13} The New Mexico Children‘s Code,
{14} An abuse and neglect case begins when CYFD files a petition alleging abuse or neglect. See
{15} An adjudicatory hearing is held within sixty days from when CYFD serves the abuse and neglect petition.
{16} Within six months of the initial judicial review of the dispositional order, the children‘s court holds an initial permanency hearing to determine whether the child should be returned home to the child‘s parent, guardian, or custodian or remain in CYFD‘s custody.
At the conclusion of the permanency hearing, the [children‘s] court shall order one of the following permanency plans for the child:
- reunification;
- placement for adoption after the parents’ rights have been relinquished or terminated or after a motion has been filed to terminate parental rights;
- placement with a person who will be the child‘s permanent guardian;
- placement in the legal custody of [CYFD] with the child placed in the home of a fit and willing relative; or
- placement in the legal custody of [CYFD] under a planned permanent living
arrangement, provided that there is substantial evidence that none of the above plans is appropriate for the child.
{17} “If the court adopts a permanency plan of reunification, the court shall adopt a plan for transitioning the child home and schedule a permanency review hearing within three months” to ensure that the child‘s parent, guardian, or custodian has made good progress.
{18} Terminating parents’ right to reunite with their child, thereby extinguishing the family unit, is a mechanism of last resort under the ANA. The ANA provides that a children‘s court shall terminate parental rights only when:
- there has been an abandonment of the child by [the child‘s] parents;
- the child has been a neglected or abused child as defined in the [ANA] and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts by [CYFD] or other appropriate agency to assist the parent in adjusting the conditions that render the parent unable to properly care for the child. . . . [; or]
- the child has been placed in the care of others, including care by other relatives, either by a court order or otherwise and the following conditions exist . . . .
{19} In summary, the ANA limits the procedures and time frame under which parents or custodians and, by extension, guardians can rehabilitate themselves and reunite with their children in line with the overall purpose of the Children‘s Code. Maria C., 2004-NMCA-083, ¶¶ 18-22. While the ANA serves to protect children in New Mexico against abuse and neglect, preserving the family relationship between the child and the child‘s parent, guardian, or custodian remains the ultimate goal of ANA proceedings until the children‘s court finds that reunification is simply not possible.
b. The KGA
{20} Similar to the overall purpose of the Children‘s Code, the KGA recognizes New Mexico policy that the “interests of children are best served when they are raised by their parents.”
{21} Ultimately, “[t]he 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.” Debbie L. v. Galadriel L. (In re Guardianship of Victoria R.), 2009-NMCA-007, ¶ 4, 145 N.M. 500, 201 P.3d 169; see also
{22} A petition for kinship guardianship may be filed by a “kinship caregiver,”
{23} A motion to revoke the kinship guardianship may be filed by any person.
2. The Legislature intended that kinship guardians participate in all abuse and neglect proceedings until the kinship guardianship is properly revoked in accordance with the revocation procedures of the KGA
{24} CYFD argues that the omission of guardians from the statutory provisions of the ANA concerning parental rights termination procedures precludes Guardian‘s
{25} “Our principal goal in interpreting statutes is to give effect to the Legislature‘s intent.” Griego v. Oliver, 2014-NMSC-003, ¶ 20, 316 P.3d 865. In interpreting statutory language, “[w]e look first to the plain language of the statute.” Freedom C. v. Brian D. (In re Guardianship of Patrick D.), 2012-NMSC-017, ¶ 13, 280 P.3d 909 (alteration in original) (internal quotation marks and citation omitted). However, “we look not only to the language used in the statute, but also to the purpose to be achieved and the wrong to be remedied.” Jolley v. Associated Elec. & Gas Ins. Servs. Ltd., 2010-NMSC-029, ¶ 8, 148 N.M. 436, 237 P.3d 738 (internal quotation marks and citation omitted). We analyze a “statute‘s function within a comprehensive legislative scheme.” State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939.
{26} The ANA, “as part of the Children‘s Code, . . . must be read as an entirety and each section interpreted so as to correlate as faultlessly as possible with all other sections.” State ex rel. Children, Youth & Families Dep‘t v. Benjamin O. (In re Lakota C.), 2007-NMCA-070, ¶ 34, 141 N.M. 692, 160 P.3d 601 (internal quotation marks and citation omitted). “Additionally, the provisions of the Children‘s Code should be interpreted in such a manner as to effectuate its purposes, which include preservation of family unity when possible.” Id. (internal quotation marks and citations omitted). ” ‘In other words, a statutory subsection may not be considered in a vacuum, but must be considered in reference to the statute as a whole and in reference to statutes dealing with the same general subject matter.’ ” State ex rel. Children, Youth & Families Dep‘t v. Maurice H. (In re Grace H.), 2014-NMSC-034, ¶ 34, 335 P.3d 746 (quoting Rivera, 2004-NMSC-001, ¶ 13 (internal quotation marks and citation omitted)). “Whenever possible, we must read different legislative enactments as harmonious instead of as contradicting one another.” Smith, 2004-NMSC-032, ¶ 10 (internal quotation marks and citation omitted).
{27} The harmonious common purpose of the ANA and the KGA is to preserve family unity whenever possible. In line with this purpose, the ANA and the KGA both
elevate guardians to a level of responsibility synonymous with that of parents. The
{28} This Court rejects “a formalistic and mechanical statutory construction when the results would be absurd, unreasonable, or contrary to the spirit of the statute.” Smith, 2004-NMSC-032, ¶ 10. Each provision defining the harms and neglect within the
{29} Pursuant to the
{30} We recognize that the Legislature did not expressly include the term “guardian” within the
{31} This interpretation allows children‘s courts to ensure that the
{32} Cases that come under the
{33} Consistent with legislative intent, we hold that kinship guardianships must be revoked in accordance with the revocation procedures of the
3. Family courts that appoint kinship guardians have concurrent jurisdiction with the children‘s court in overseeing a kinship guardianship revocation hearing during abuse and neglect proceedings
{34} The
{35} First, although the
{36} Second, the Legislature enacted both the
{37} Consistent with legislative intent, we hold that family courts which appoint kinship guardianships have continuing concurrent jurisdiction over the kinship guardianship, with children‘s courts presiding over abuse and neglect proceedings. CYFD may petition to revoke the rights of a kinship guardian within those abuse and neglect proceedings. Our holding bridges the divide between the
4. Although we hold that kinship guardians have a statutory right to a revocation hearing prior to being dismissed from abuse and neglect proceedings, kinship guardians are not necessary and indispensable parties pursuant to Rule 1-019 NMRA
{38} The Court of Appeals held that the children‘s court erred in dismissing Guardian because she was a necessary and indispensable party to the abuse and neglect proceedings until her kinship guardianship was revoked pursuant to the
{39} The legal concept of a necessary and indispensable party is set forth in
{40} This Court agrees with the outcome reached by the Court of Appeals on different grounds. Kinship guardians do have a statutory right to a revocation hearing pursuant to the
B. Father‘s due process rights were not violated during the hearings on the motion to dismiss Guardian from the abuse and neglect proceedings
{41} Father filed a motion to intervene in this appeal after this Court granted certiorari. In his briefing, Father raised issues of procedural due process, arguing that he was not given a fair opportunity to voice concerns in the dismissal of Guardian from the abuse and neglect proceedings. Specifically, Father asks this Court to hold that “a natural parent‘s expressed wish for family reunification via the auspices of placement with a relative must be taken into account prior to dismissal of the relative from abuse and neglect proceedings.” Father further argues that his fundamental liberty interests based in the Fourteenth Amendment allow him to influence placement decisions for Children. CYFD argues that Father‘s claim was not properly preserved in the district court and cannot be raised for the first time on appeal. See
{42} We usually review denial of due process rights de novo. State ex rel. Children, Youth & Families Dep‘t v. Pamela R.D.G. (In re Pamela A.G.), 2006-NMSC-019, ¶ 10, 139 N.M. 459, 134 P.3d 746. However, we do not issue a holding on this question because it is unnecessary due to our holding that Guardian is entitled to a revocation hearing prior to dismissal from the abuse and neglect proceedings.
{43} Father had various opportunities to meaningfully participate in the proceedings to dismiss Guardian from the abuse and neglect proceedings. At the February 28, 2012 hearing on permanency that resulted in the children‘s court‘s approval of a plan of adoption and that first considered the motion to dismiss Guardian, Father‘s counsel and Father were present. Father‘s attorney was excused from a subsequent hearing on the motion to dismiss on March 27, 2012 to work on other pleadings because Father would remain a party to the abuse and neglect proceedings, regardless of the outcome of the hearing on the motion to dismiss Guardian. Father and his counsel both attended but did not participate in the May 8, 2012 evidentiary hearing on the motion to dismiss Guardian from the abuse and neglect proceedings, and again they stated no position on the motion to dismiss. Finally, Father did not intervene in the Court of Appeals action that preceded this appeal. As a result, CYFD argues that this Court lacks jurisdiction to consider the issue. See
{44} The circumstances surrounding Father‘s lack of participation in Guardian‘s dismissal and this late intervention raise troubling questions. However, all of these questions are irrelevant given our holding that Guardian is entitled to a revocation hearing in accordance with the
III. CONCLUSION
{45} We reverse the children‘s court ruling to dismiss Guardian as contrary to law. We affirm the Court of Appeals on different grounds and hold that while kinship guardians are not necessary and indispensable parties to abuse and neglect proceedings, a kinship guardian is nonetheless entitled to a revocation hearing in accordance with the
{46} IT IS SO ORDERED.
______________________________
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
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PETRA JIMENEZ MAES, Justice
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RICHARD C. BOSSON, Justice
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CHARLES W. DANIELS, Justice