1997 -NMCA- 94, Drummond, Matter of

Decision Date25 August 1997
Docket NumberNo. 17701,17701
Citation945 P.2d 457,123 N.M. 727,1997 NMCA 94
Parties, 1997 -NMCA- 94 In the Matter of the Adoption Petition of Caril Kenneth DRUMMOND and Shirley A. Drummond. Carol Ann DRUMMOND, formerly known as Carol Ann McCrary, Petitioner-Appellee, v. Caril Kenneth DRUMMOND and Shirley A. Drummond, Respondents-Appellants.
CourtCourt of Appeals of New Mexico
OPINION

FLORES, Judge.

¶1 This is an unusual adoption case raising the issue of when, if ever, an adoption decree may be reopened after the statutory one-year deadline for attacking such decrees has passed. Some jurisdictions, such as Illinois, have cited public policy considerations favoring the stability of adoptions and have rejected virtually every attempt to find an exception to the applicable statute of limitations. Other jurisdictions have allowed for the possibility that under limited circumstances, the limitations period should not be applied to bar a birth parent's attempt to reopen an adoption decree. We hold that this case is one in which the statute of limitations period should not be strictly applied. We affirm and remand.

I. FACTS AND PROCEDURAL HISTORY

¶2 The birth mother (Mother) and her daughter (the Child) lived with Mother's parents (Grandparents) for a number of years following Mother's divorce from the birth father. While Mother worked, Grandparents provided child care, but Mother's position as the Child's mother was not in doubt. According to Mother's testimony, at some point Grandfather discovered that if Grandparents adopted the Child they could receive additional Social Security monies. Grandfather began to put pressure on Mother to allow such an adoption. At about the same time, Mother became very concerned about her health because a cancerous cyst had been discovered on her uterus. Mother believed her ex-husband had substance-abuse problems and would not be as good a caretaker for the Child as would her parents. Thus, she did not want the birth father to obtain custody of the Child if she should die. In part because of her father's pressure and in part because of her fear that she might die soon, Mother agreed to the adoption, but only after being assured that nothing would change, that she would still be the Child's mother, and that health permitting she would still raise the Child.

¶3 Mother signed a consent to adoption form which was deficient in several respects. First, the form recited that Mother had received independent counseling concerning the adoption, even though Mother had received no counseling. Second, the form was not signed in front of a judge, as in this case it should have been. See NMSA 1978, § 40-7-38 (Repl.Pamp.1989) (repealed 1993; for present comparable provisions, see NMSA 1978, § 32A-5-21 (Repl.Pamp.1995)). Despite the deficiencies, the adoption decree was entered on March 18, 1992.

¶4 Following the adoption, nothing changed--Mother and the Child still lived with Grandparents; Mother for all practical purposes remained the Child's mother; Grandparents still cared for the Child while Mother was at work; and Mother continued to provide health insurance, clothing, and groceries for the Child. Also, Grandparents began to receiveapproximately $400 per month in additional Social Security payments on behalf of the Child. This situation remained the same until Mother started dating a man of whom her parents did not approve. When Mother went on a week-long vacation with her boyfriend (now her husband), in May 1994, her parents told her to leave the family home without the Child. Within three months, Mother commenced this legal action to have the adoption declared void or otherwise reopened. Grandparents responded, maintaining that Mother's action was barred because it had been filed more than a year after the adoption decree was entered. See NMSA 1978, § 40-7-51(F) (Repl.Pamp.1989) (repealed 1993; for present comparable provision, see NMSA 1978, § 32A-5-36(K) (Repl.Pamp.1995)) ("A final decree of adoption may not be attacked upon the expiration of one year from the entry of the decree[.]").

¶5 After a trial on the merits, the district court determined that Grandparents had committed fraud upon the court by submitting a consent form with the deficiencies mentioned above, and that the adoption decree was therefore void. The court also ruled that Grandparents had made misrepresentations to Mother by assuring her that nothing would change after the adoption, and that the adoption decree should be reopened on this basis as well as on the fraud-on-the-court ground.

II. DISCUSSION

¶6 On appeal, Grandparents challenge the court's determination that there was fraud on the court, characterizing the deficiencies in the consent as "sloppy paperwork." Grandparents also argue that there was no evidence of fraud at the time of the initial statements to Mother, and that the only evidence is that Grandparents had no intention to have a change of heart about enforcing the adoption decree until the 1994 dispute between Mother and Grandparents that led to the current litigation. Finally, Grandparents contend that the district court was obligated to make a determination regarding the Child's best interests, even if the court was correct in vacating the adoption decree. As we discuss below, we agree that there was no fraud on the court in this case. We also agree that the evidence of fraud against Mother was not clear and convincing. However, we believe the district court's decision to reopen the adoption decree should be upheld on a different legal theory, given the facts of this case. Finally, we determine that the case should be remanded for a hearing concerning the Child's best interests with respect to the custody determination.

¶7 There are two statutes of limitation in the version of the Adoption Act applicable to this case that concern consents and adoption decrees. Under Section 40-7-51(F), a final decree of adoption "may not be attacked" upon the expiration of one year from the entry of the decree. Also, Section 40-7-38(F) provides that a consent to an adoption may not be withdrawn prior to the entry of an adoption decree unless the consent was obtained by fraud. These two provisions, taken together, indicate that the only ground for revoking a consent prior to an adoption is fraud, and that any attack on an adoption decree must be made within one year after the decree is entered. See In re Kira M., 118 N.M. 563, 570, 883 P.2d 149, 156 (1994) (holding that once a consent has been accepted by the children's court, the only ground upon which to attack the consent is fraud; implying that attacks on consents must be made before the adoption decree is filed). Here, Mother attacked the adoption over a year after the decree was entered. The question to be answered, then, is whether any exceptions to the one-year requirement might apply.

A. Invalidity of the Consent/Fraud on the Court

¶8 As we pointed out above, one ground relied on by the district court in making its ruling was that the problems with the consent in this case, which included the fact that Mother had not received the required pre-consent counseling, made the consent and resultant adoption void. Since it was void, the court held, it could be reopened at any time. This theory does not appear to be supported by cases decided under similar circumstances. See, e.g., In re Joseph B., 258 Ill.App.3d 954, 197 Ill.Dec. 56, 63, 630 N.E.2d 1180, 1187 (1994) (where consent was limited to particular person as adoptive parent, and consent was void because that person did not adopt, the statute of limitations for revoking consent still applied; substantial compliance with adoption statutes is sufficient); In re Adoption of Baby Girls Mandell, 213 Ill.App.3d 670, 157 Ill.Dec. 290, 292-93, 572 N.E.2d 359, 361-62 (1991) (consent alleged void because given in exchange for money; court stated that consent could not be attacked after statute ran, so arguments based on the invalidity of the consent, such as the argument that the resulting adoption decree is void, must fail); In re Adoption of J.H.G., 254 Kan. 780, 869 P.2d 640, 650-51 (1994) (even though adoption petition was deficient in several ways, this did not render decree void; a judgment is void only if there is a lack of personal or subject matter jurisdiction, or a denial of due process); Watkins v. Chirrick, 19 Or.App. 241, 526 P.2d 1399, 1401 (1974) (even if facts show that consent was not voluntary, one-year statute of limitations was not met, and no good reason was given for failure to file within that time period; reopening adoption not allowed).

¶9 In this case, we see no reason why the result should be different simply because the district court termed the deficiencies in the consent as fraud on the court. If there were true fraud on the court, under Rule 1-060(B) NMRA 1997, an independent action such as this could be maintained outside the time limitations of that Rule. We would then have to decide whether the statute of limitations of the Adoption Act would limit a claim based on fraud upon the court. The fraud-upon-the-court doctrine, however, is limited to extreme cases in which there is a concerted plan to defile the court itself. Jemez Properties, Inc. v. Lucero, 94 N.M. 181, 184 n. 1, 608 P.2d 157, 160 n. 1 (Ct.App.1979). The failure to ensure that counseling is obtained before a consent is signed does not rise to that level, especially where the birth mother herself read the document, testified she understood it, and signed it. Similarly, other procedural problems with the consent or adoption proceedings in this case do not constitute fraud on the court because Mother was fully aware of what she was doing, and clearly agreed to the adoption voluntarily at the time it was entered ...

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