1997 -NMSC- 38, State ex rel. Children, Youth and Families Dept. v. Joe R.

• Decision Date: 22 August 1997
• Docket Number: No. 23725,23725
• Citation: 1997 NMSC 38,945 P.2d 76,123 N.M. 711
• Parties: , 1997 -NMSC- 38 STATE of New Mexico, ex rel., CHILDREN, YOUTH AND FAMILIES DEPARTMENT In the Matter of: Sara R. a child, and concerning Joe R., respondent, State of New Mexico, ex rel., Children, Youth and Families Department, Petitioner-Petitioner, v. JOE R., Respondent-Respondent.
• Court: New Mexico Supreme Court

Page 76

945 P.2d 76

123 N.M. 711, 1997 -NMSC- 38

STATE of New Mexico, ex rel., CHILDREN, YOUTH AND FAMILIES

DEPARTMENT In the Matter of: Sara R. a child, and

concerning Joe R., respondent,

State of New Mexico, ex rel., Children, Youth and Families

Department, Petitioner-Petitioner, v. JOE R., Respondent-Respondent.

No. 23725.

Supreme Court of New Mexico.

Aug. 22, 1997.

Angela L. Adams, Chief Children's Court Attorney, Diane Garrity, Roy E. Stephenson,

[123 N.M. 712] Children's Court Attorneys, Santa Fe, for Petitioner-Petitioner

Cusack, Jaramillo & Associates, P.C., Sheryl L. Saavedra, Timothy J. Cusack, Roswell, for Respondent-Respondent.

Sanders, Bruin, Coil & Worley, P.A., Michael H. Stone, Roswell, Guardian ad Litem.

OPINION

MINZNER, Justice.

¶1 The New Mexico Children, Youth, and Family Services Department (the Department) appeals from a ruling by the Court of Appeals granting Joe R. (Father) an evidentiary hearing to determine whether his parental rights to Sara R. (Child) should be terminated. State ex rel. Children, Youth & Families Dep't v. Joe R. (State ex rel. Children, Youth & Families Dep't In re Sara R.), 1996 NMCA 091, 122 N.M. 284, 287, 923 P.2d 1169, 1172. Father was convicted of first degree murder and false imprisonment for murdering his wife, Child's mother (Mother), and sentenced to life imprisonment plus eighteen months. During the pendency of this appeal, we upheld his conviction and sentence. Id. at 289, 923 P.2d at 1174 n. 2. The Court of Appeals held that summary judgment was inappropriate in this case because a question of fact remained regarding whether the parent-child relationship remained viable and important to Child. Id. at 287, 923 P.2d at 1172. The Court of Appeals also held that incarceration does not constitute neglect as a matter of law. Id. at 286, 923 P.2d at 1171. We agree that incarceration alone does not constitute neglect; however, we reverse the Court of Appeals' granting of a new trial. On the record before us, no genuine issue of material fact exists, and the Department is entitled to judgment as a matter of law. We therefore reverse the Court of Appeals, and we affirm the trial court's judgment for the Department.

I.

¶2 Mother was shot by Father in August 1993. Child and her older stepbrother were taken into emergency temporary care by the Department on the same day. Two days later, while Mother remained in intensive care, the Department petitioned for custody of both children on the basis of neglect and/or abuse. Following Mother's death, the Department placed Child in the foster care of a maternal aunt.

¶3 On November 29, 1993, the children's court determined that Child was abused and neglected and granted the Department temporary custody. In its findings of fact, the court found that Father was incarcerated and that Child had expressed a desire not to see Father. At that time, the Child was almost seven years old.

¶4 The Department initially pursued the possibility of a permanent guardianship. Child remained in the first foster care placement for about seven months, and then was placed with another maternal aunt on March 31, 1994. By the time of the May 1994 judicial review, the Department changed its plan to adoption. A report filed in connection with that review contains the following notation: "A referral to Central Adoptions was made and several homes were reviewed. However, a family has not been selected because family members are interested."

¶5 Father was convicted on May 11, 1994. In re Sara R., 122 N.M. at 286, 923 P.2d at 1170. By late June, the Department was satisfied that the second foster care placement was likely to lead to adoption; the Department filed a motion in June 1994, to terminate Father's parental rights. The motion for termination alleged that Child was abused or neglected and the causes or conditions were unlikely to change. The petition also alleged, "[C]hild resides with foster parents who wish to adopt her." At that time, Child was eight-and-a-half years old.

¶6 In September 1994, the Department moved for summary judgment. In the motion, the State noted that the basis for the termination petition was the neglect of Child. The district court judge, who had presided over Father's criminal case and also heard the case in children's court involving Child, granted the Department's motion.

¶7 At the hearing on the Department's motion, in December 1994, Father noted that Child had been in the second foster care placement approximately the same length of time that she had been in the first foster care placement. He argued that there had not been sufficient time for her to form a bond with the family that wished to adopt her and that there was no investigative report in the file on the family. He also noted that Child had visited him at the penitentiary in October for several hours. He argued that a decision terminating parental rights would be premature. The trial court granted the Department's motion in March 1995.

¶8 Following entry of the final order, Father appealed the termination of his parental rights to the Court of Appeals. Rule 12-201 NMRA 1997. The Court of Appeals reversed and remanded with directions to hold an evidentiary hearing on the merits. In re Sara R., 122 N.M. at 289, 923 P.2d at 1174. Judge Donnelly dissented. Id.

¶9 On appeal to this Court, the Department makes three arguments. First, the Department contends that the finding of abuse or neglect at the adjudicatory hearing binds the parties at a subsequent proceeding to terminate parental rights. Second, the Department argues that New Mexico case law supports its claim that conviction of a parent for the murder of the other parent is neglect of the child as a matter of law. Finally, the Department asserts that if summary judgment remains a viable procedure in termination cases, it should be appropriate here. We address only the latter two arguments. We do not address the first argument made by the Department, since it is not necessary to our disposition.

II.

¶10 In New Mexico, parental rights may be terminated upon a showing by the State or other party in interest that the parent has abused, neglected or abandoned the child. NMSA 1978, § 32A-4-28(B) (1993, prior to 1995 amendment). The State must carry its burden of proof by clear and convincing evidence. ¹ NMSA 1978, § 32A-4-29(J) (1993). Summary judgment is appropriate in termination proceedings when there are no genuine issues of material fact in dispute, State ex rel. Children, Youth & Families Dep't In re T.C., 1994 NMCA 099, 118 N.M. 352, 353-54, 881 P.2d 712, 713-14, and the moving party is entitled to judgment as a matter of law. Rule 1-056 NMRA 1997. We hold that the Department made a prima facie showing that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Father failed to rebut the Department's showing. Therefore, the trial court did not err in granting the Department summary judgment.

A.

¶11 Father argues that he should have been allowed to present evidence at a hearing that his actions did not constitute abuse or neglect of Child, and he contends that his incarceration does not preclude his ability to remain her parent. However, as Judge Donnelly points out in his dissent, In re Sara R., 122 N.M. at 291, 923 P.2d at 1176 (Donnelly, J., dissenting), the Abuse and Neglect Act defines a neglected child as one "whose parent ... is unable to discharge [his or her] responsibilities to and for the child because of incarceration...." NMSA 1978, § 32A-4-2(C)(4) (1993). We agree that the fact of incarceration, in itself, is not a dispositive legal ground to terminate parental rights. Termination of parental rights should be assessed on a case-by-case basis. In re Adoption of Doe, 99 N.M. 278, 282, 657 P.2d 134, 138 (Ct.App.1982). However, when there is no genuine issue of material fact, summary judgment, as in any other case, may be appropriate. See In re T.C., 118 N.M. at 353, 881 P.2d at 713. Where, as here, there can be no dispute that Father neglected the Child and will be unable to rectify that neglect during Child's minority, summary judgment is appropriate.

¶12 We have said, "[U]nder many circumstances, unfitness is implicitly rather than expressly established when proof is offered of conduct--such as abuse or abandonment--that justifies severing a parent from his or her child." Roth v. Bookert (In re Adoption of J.J.B.), 1995 NMSC 033, 119 N.M. 638, 644, 894 P.2d 994, 1000, cert. denied, --- U.S ----, 116 S.Ct. 168, 133 L.Ed.2d 110 (1995). We noted that the United States Supreme Court "carefully refrained from any constitutional holding regarding the substantive criteria necessary under the Due Process Clause to justify termination of parental rights." Id. at 646, 894 P.2d at 1002 (interpreting Santosky v. Kramer, 455 U.S. 745, 760-61, 102 S.Ct. 1388, 1398-99, 71 L.Ed.2d 599 (1982)). We concluded that "the specific substantive allegations necessary to support a termination of parental rights were intended to remain a matter of state law" and that "the term 'unfitness' when used by the Supreme Court with reference to a constitutional prerequisite for the termination of parental rights, or the forced breakup of a natural family, is used in a very broad sense. The term at a minimum applies to cases of abandonment, neglect, or abuse of the child." In re Adoption of J.J.B., 119 N.M. at 646, 894 P.2d at 1002. In addition, we held that the showing of parental fitness required as a matter of due process "is met by proof of substantive criteria demonstrating parental inadequacy or conduct detrimental to the child." Id.

¶13 New Mexico statutory law sets out various criteria as bases for terminating parental rights. See § 32A-4-28(B)(1)-(3). The criteria include abandonment, Section 32A-4-28(B)(1), neglect or abuse, Section 32A-4-28(B)(2), and presumptive abandonment, Section 32-4-28(B)(3). Neglect and abuse are defined by statute....