Adoption of Francisco A., Matter of, No. 13358

Docket NºNo. 13358
Citation866 P.2d 1175, 1993 NMCA 144, 116 N.M. 708
Case DateNovember 29, 1993
CourtCourt of Appeals of New Mexico

Page 1175

866 P.2d 1175
116 N.M. 708
In the Matter of the ADOPTION OF FRANCISCO A., Luis H., and
Augustine V.,
and Concerning
Rita VEST, Plaintiff-Appellee/Cross-Appellant,
v.
STATE of New Mexico ex rel. NEW MEXICO HUMAN SERVICES
DEPARTMENT, Defendant-Appellant/Cross-Appellee.
In the Matter of the ADOPTION PROCEEDINGS OF Robert RUNYON
and Judith G. Runyon, to adopt minors.
In the Matter of the ADOPTION PROCEEDINGS OF Rita VEST, to
adopt minors.
No. 13358.
Court of Appeals of New Mexico.
Nov. 29, 1993.

Page 1177

[116 N.M. 710] Lorenzo Atencio, Familia Legal Services, Espanola, for plaintiff-appellee, cross-appellant.

Richard A. Griscom, Gen. Counsel, Judith A. Ferrell, Asst. Gen. Counsel, Human Services Dept., Santa Fe, for defendant-appellant, cross-appellee.

Thomas J. Cruse, Los Alamos, for Runyons.

Judith Mellow, Santa Fe, guardian ad litem.

OPINION

APODACA, Judge.

The parties' respective motions for rehearing having been granted, and oral argument having been scheduled and heard, the opinion filed on May 11, 1993 is withdrawn, and the following opinion is substituted in its place.

These appeals arise from adoption proceedings involving three minor children. In a consolidated hearing, the children's court heard two conflicting petitions for adoption. The children's court granted the adoption petition of Judith and Robert Runyon (Runyons), but awarded visitation rights to Rita Vest (Vest), who was the other petitioner and the children's former foster parent. In their consolidated appeal, the New Mexico Human Services Department (HSD) and the Runyons (collectively referred to as HSD) raise the following issues: whether the children's court had jurisdiction to (1) consider Vest's petition for adoption or (2) grant visitation rights to Vest. Vest, in her appeal, raises the issues of whether (1) the children's court had jurisdiction to grant the Runyons' petition before HSD had formally terminated Vest's foster-parent rights pursuant to statute, and (2) HSD and the children's court denied her due process in rejecting her adoption petition. Although we hold that the children's court had jurisdiction to consider Vest's petition and we therefore reject HSD's and the Runyons' challenge to the award of visitation rights to Vest on that basis, we hold that, on the record before us, the grant of visitation rights to Vest was not supported by sufficient evidence. We also hold that Vest was not denied due process and that the children's court properly granted the Runyons' adoption petition. We therefore affirm in part and reverse in part.

BACKGROUND

HSD has had legal custody of the three children, Francisco A., Luis H., and Augustine V., since May 1985. Beginning at about that time, Vest and her spouse were the children's foster parents. In 1986, the Vests expressed an interest in adopting the children and began the necessary adoption procedure. An August 1986 report on the Vests' suitability as adoptive parents was favorable. However, HSD was unable to terminate the biological parents' rights until April 1988. Vest's spouse had died in March 1988, but Vest carried on the adoption proceedings in her own behalf. She also continued as the children's sole foster parent until December 1988, when HSD removed them from her home and placed them with the Runyons.

Before HSD removed the children from Vest's home, she filed an appeal with HSD challenging its decision to remove the children. She also sought review of HSD's determination not to proceed with her adoption of the children. Although HSD did not hold a hearing before removing the children, in June 1989 the agency affirmed its decision to remove the children and to deny Vest's adoption petition. Immediately afterwards, the Runyons filed a petition for adoption of the

Page 1178

[116 N.M. 711] children in Sandoval County. Vest answered and HSD entered an appearance. The court allowed HSD to intervene and transferred the matter to the children's court in Santa Fe County. Meanwhile, Vest filed an action in Rio Arriba County requesting the children's court to review HSD's decision to deny her request to adopt the children. She also filed her own adoption petition in Rio Arriba County. The Runyons answered this petition. In December 1989 the parties filed a stipulated motion to consolidate these proceedings in Santa Fe County.

The court hearing commenced in October 1990. After the parties presented their cases, the children's court interviewed the children in camera. They expressed their desire to stay with the Runyons but also to visit with Vest. The court issued its intended decision in January 1991, but the parties filed pleadings contesting the decision. Final judgment was entered in July 1991.

In its decision and judgment, the children's court granted the Runyons' adoption petition. The court denied Vest's petition to adopt the children, but awarded her visitation rights. HSD appeals this decision, arguing that the children's court had no jurisdiction to consider Vest's petition or to award her visitation rights. Vest cross-appeals, arguing that the children's court had no jurisdiction to grant the Runyons' petition before HSD formally terminated Vest's foster-parent rights under the pertinent statute. She also argues that HSD and the children's court denied her due process in rejecting her petition for adoption.

HSD'S APPEAL

A. Jurisdiction.

In arguing that the children's court had no jurisdiction to consider Vest's adoption petition, HSD relies on NMSA 1978, Section 40-7-34(A) (Repl.Pamp.1989). This statute provides that, except for certain circumstances that do not apply here, the court may award adoption only to a petitioner or petitioners with whom HSD or another licensed adoption agency has placed the children. Id. HSD argues that, because the agency placed the children with the Runyons, the court had only two options, either to deny or to grant the Runyons' adoption petition. Id.; see also NMSA 1978, Sec. 40-7-30(N) (Repl.Pamp.1989) (defining placement as the process of selecting potential parents and physically transferring adoptee children to the potential parents).

In response, Vest contends that this jurisdictional argument is moot. She also argues that, while Section 40-7-34(A) dictates to whom the court may award adoption, nothing in that section dictates who may file a petition. HSD's reading of the statute, Vest claims, effectively means that HSD has absolute power over who may adopt children by having the power to place them with families. Finally, Vest argues that, no matter what the statutes provide, HSD's decision to prefer the Runyons as adoptive parents is reviewable for constitutional infirmity.

We agree that there is nothing in Section 40-7-34(A) suggesting a limitation on the children's court's jurisdiction. Section 40-7-34(A) is merely a statute that limits the court's power to grant a petition for adoption. If a party cannot prove the facts necessary, then the statute is of no value to that party. Specifically, unless Vest could plead and prove that HSD placed the children with her for adoption, she was not entitled to the right of adoption Section 40-7-34(A) provides. We need not determine whether the children were placed with Vest for adoption because Vest concedes that she could not have established placement for purposes of Section 40-7-34(A). Nevertheless, HSD's characterization of the children's court's consideration of Vest's petition as beyond the court's jurisdiction is without merit. See Sundance Mechanical & Util. Corp. v. Atlas, 109 N.M. 683, 687, 789 P.2d 1250, 1254 (1990). Vest merely failed to state a claim for adoption for which the court could grant relief. See SCRA 1986, 1-012(B)(6) (Repl.1992). Thus, the children's court had jurisdiction to consider the petition, even though the petition was dismissible on the merits.

B. Visitation.

In support of its contention that Vest should not have visitation rights, HSD focuses on the policy that adoption starts a family anew with all the rights and responsibilities of a biological family. See In re Estate of

Page 1179

[116 N.M. 712] Holt, 95 N.M. 412, 622 P.2d 1032 (1981). The Runyons' adoption of the three children created a new family. Thus, HSD argues, that family should have all the rights of any other family, including the right to determine who should and should not see the family's children regardless of claimed psychological ties with the children. Vest argues that the adoption statutes grant courts an inherent equitable power to award visitation, based on the statutory policy of protecting the best interests of adopted children.

A review of the case law on adoption, custody, and visitation rights reveals cases that assist in disposing of the issue before us, although there appears to be little uniformity in the case law and there is support for both parties' positions. See Danny R. Veilleux, Annotation, Postadoption Visitation by Natural Parent, 78 A.L.R. 4th 218 (1990); Annotation, Visitation Rights of Persons Other Than Natural Parents or Grandparents, 1 A.L.R. 4th 1270 (1980). There are various arguments against allowing third-party visitation following a child's adoption. Many courts have reasoned that adoption severs the ties of old relationships and granting visitation to third parties or enforcing such agreements would interfere with the new family. See, e.g., Ex parte Bronstein, 434 So.2d 780 (Ala.1983); In re Adoption of Hammer, 15 Ariz.App. 196, 487 P.2d 417 (1971); Sachs v. Walzer, 242 Ga. 742, 251 S.E.2d 302 (1978); Browning v. Tarwater, 215 Kan. 501, 524 P.2d 1135 (1974). Some courts have not allowed such visitation because they considered it against public policy, see Hill v. Moorman, 525 So.2d 681 (La.Ct.App.1988), or because it would deter adoptions, see People ex rel. Levine v. Rado, 54 Misc.2d 843, 283 N.Y.S.2d 483 (Sup.Ct.1967).

However, it appears the trend has been to consider or allow visitation to other persons who have...

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36 practice notes
  • Custody of H.S.H.-K., In re, No. 93-2911
    • United States
    • United States State Supreme Court of Wisconsin
    • June 13, 1995
    ...with the child if visitation would be in the best interest of the child. See, e.g., In the Matter of Adoption of Francisco A., 116 N.M. 708, 866 P.2d 1175, 1179 (Ct.App.1993) (granting visitation to foster parents in adoptive situation); In re Robin N., 7 Cal.App.4th 1140, 1146 (Ct.App.1992......
  • Hede v. Gilstrap, No. 04-22.
    • United States
    • United States State Supreme Court of Wyoming
    • February 28, 2005
    ...to "judicially enlarge" grandparent visitation beyond statutory limits in best interests of child); Matter of Adoption of Francisco A., 116 N.M. 708, 866 P.2d 1175, 1179 (1993) (trend is to allow post-adoption visitation with various people, such as grandparents, former stepparents, and fos......
  • Chatterjee v. King, No. 29,823.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 27, 2011
    ...are to be believed and, if so, whether they are sufficient to warrant court-ordered visitation. Cf. In re Adoption of Francisco A., 116 N.M. 708, 713, 866 P.2d 1175, 1180 (Ct.App.1993) (stating that “it may be in the child's best interest to allow visitation by a step [-]parent who had not ......
  • UNITED PROPERTIES v. WALGREEN PROPERTIES, No. 22
    • United States
    • New Mexico Court of Appeals of New Mexico
    • June 11, 2003
    ...the judiciary a roving commission" to do whatever it wishes in the name of fairness or public welfare. In re Adoption of Francisco A., 116 N.M. 708, 730, 866 P.2d 1175, 1197 (Ct.App.1993) (Hartz, J., concurring in part and dissenting in part). In this section, we explain why adherence to th......
  • Request a trial to view additional results
36 cases
  • Custody of H.S.H.-K., In re, No. 93-2911
    • United States
    • United States State Supreme Court of Wisconsin
    • June 13, 1995
    ...with the child if visitation would be in the best interest of the child. See, e.g., In the Matter of Adoption of Francisco A., 116 N.M. 708, 866 P.2d 1175, 1179 (Ct.App.1993) (granting visitation to foster parents in adoptive situation); In re Robin N., 7 Cal.App.4th 1140, 1146 (Ct.App.1992......
  • Hede v. Gilstrap, No. 04-22.
    • United States
    • United States State Supreme Court of Wyoming
    • February 28, 2005
    ...to "judicially enlarge" grandparent visitation beyond statutory limits in best interests of child); Matter of Adoption of Francisco A., 116 N.M. 708, 866 P.2d 1175, 1179 (1993) (trend is to allow post-adoption visitation with various people, such as grandparents, former stepparents, and fos......
  • Chatterjee v. King, No. 29,823.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 27, 2011
    ...are to be believed and, if so, whether they are sufficient to warrant court-ordered visitation. Cf. In re Adoption of Francisco A., 116 N.M. 708, 713, 866 P.2d 1175, 1180 (Ct.App.1993) (stating that “it may be in the child's best interest to allow visitation by a step [-]parent who had not ......
  • UNITED PROPERTIES v. WALGREEN PROPERTIES, No. 22
    • United States
    • New Mexico Court of Appeals of New Mexico
    • June 11, 2003
    ...the judiciary a roving commission" to do whatever it wishes in the name of fairness or public welfare. In re Adoption of Francisco A., 116 N.M. 708, 730, 866 P.2d 1175, 1197 (Ct.App.1993) (Hartz, J., concurring in part and dissenting in part). In this section, we explain why adherence to th......
  • Request a trial to view additional results

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