Adoption of J.J.B., Matter of
| Decision Date | 30 November 1993 |
| Docket Number | No. 14318,14318 |
| Citation | 117 N.M. 31,1993 NMCA 145,868 P.2d 1256 |
| Parties | In the Matter of the ADOPTION OF J.J.B., a Minor, Carla Ann ROTH and Kyle David Franz Roth, Petitioners-Appellees, v. Edward BOOKERT, Respondent-Appellant. |
| Court | Court of Appeals of New Mexico |
Appellant, Edward Bookert (Father), appeals from a judgment terminating his parental rights and granting the petition of Appellees, Carla and Kyle Roth (Petitioners), to adopt J.J.B. Although Father has raised five issues on appeal, we determine that his claim that Petitioners failed to establish by clear and convincing evidence a valid basis for the termination of his parental rights is dispositive, and reverse.
Father and Ana Medina (Mother) began living together in 1981. Although they never married, they cohabited until November 1990. During this period, two daughters, E.B. and C.B., and a son, J.J.B, were born of their relationship. J.J.B., the subject of this appeal, was born on April 14, 1990.
During most of the period they lived together, the family resided in New Mexico. In August 1990, however, the family moved to Tucson, Arizona, where Father obtained employment. On November 14, 1990, after personal differences arose, Mother left Father and returned to Albuquerque with the three children. Father, after unsuccessfully attempting to dissuade Mother from returning to New Mexico, agreed to assist her with the move. He purchased airplane tickets for her and the children, and gave her approximately $80 cash. She also took the family's food stamps worth approximately $300.
Shortly after the separation, Father was laid off from his job as a maintenance man at a motel. On December 6, 1990, he returned to Albuquerque and visited with his family, who was living with Mother's father. During this visit, he bought presents for the children, clothes, and other personal items for the family. Additionally, he gave Mother food stamps.
Father went to Hobbs to stay with his mother. While in Hobbs, he maintained contact with Mother and the children. During December and the first week of January 1991, Father spoke with Mother or the children by telephone on twelve occasions.
On Friday, January 4, 1991, Father received a telephone call from Gerald Ortiz y Pino, a social worker with La Familia Adoption Agency, notifying him that Mother had delivered his son, J.J.B., to the agency and authorized it to place J.J.B. for adoption. Father immediately protested, and told Ortiz y Pino that he wanted his son back.
Father testified that he left Hobbs Saturday night and returned to Albuquerque Sunday morning. He attempted to see Ortiz y Pino on Monday, but was unable to schedule an appointment. When he succeeded in meeting with Ortiz y Pino on Tuesday, January 8, 1991, Father restated his objection to the adoption and requested that his son be returned. Ortiz y Pino refused to turn over the child and advised Father to consult an attorney.
On January 9, 1991, Ortiz y Pino wrote to Father in Hobbs, acknowledging that he had expressed his opposition to the adoption, stating Mother had reported that Father was currently unemployed and had not sent any financial help for the past two months. Ortiz y Pino also recommended that Father "seek legal advice through a lawyer of your own choosing, especially if you decide to contest the potential adoption of the child."
Father consulted an attorney on January 18, 1991, who advised La Familia that he was representing Father. Fifteen days later, on January 23, 1991, Petitioners filed a petition to adopt J.J.B. Although Petitioners and La Familia were aware of Father's objection to the adoption and Father's identity, he was not served with a copy of the summons or petition for adoption until March 12, 1991.
In March 1991, Mother sought to withdraw her consent that her son be relinquished for adoption. On May 15, 1991, and again on July 1, 1991, Father moved for permission to visit with J.J.B. No action was taken on his motions until November 1, 1991, when the trial court entered an order denying Father visitation.
On January 15, 1992, Father was permitted to have supervised visitation with J.J.B. During the period from November 23, 1991, through April 16, 1992, he visited with his son approximately thirty times. Father's visitation with J.J.B. ceased in April 1992, when the woman employed by Petitioners to accompany J.J.B. during the visits refused to supervise any further visits. Father was told by Petitioners that he would have to make other arrangements to have someone accompany J.J.B. during the visits.
Final hearing was held on August 3-4, 1992. At the conclusion of testimony, the trial court granted the petition for adoption and ordered that Father's parental rights be terminated. Subsequent to the submission of requested findings of fact and conclusions of law, the trial court entered a decision, finding, among other things, that J.J.B. has not lived with Father since November 14, 1990; a parent-child relationship had developed between Petitioners and J.J.B.; that Father had not provided any support to J.J.B. or lived with J.J.B. since November 14, 1990; and that it is in the best interests of J.J.B. that he be adopted by Petitioners.
Based on its findings, the trial court concluded, in part, that "[c]lear and convincing evidence has established that the biological father has abandoned the [child], pursuant to [NMSA 1978, Section] 32-1-54(B)(4) [ (Repl.Pamp.1989) ]"; that "the parent-child relationship between the Child and the father has disintegrated"; that "a psychological parent-child relationship has developed between petitioners and the Child"; and "[c]lear and convincing evidence demonstrated that it is in the best interests of the physical, mental and emotional needs of the child that the biological father's parental rights be terminated pursuant to [Section] 31-2-54(A) [32-1-54(A) ] NMSA 1978." Thereafter, the trial court entered a final decree terminating Father's parental rights and granting the adoption.
In the Children's Code, NMSA 1978, Sections 32-1-1 to -59 (Repl.Pamp.1989), Section 32-1-54(B) sets out four alternative grounds for terminating parental rights. 1 In addition, at the time of the proceedings below, the Adoption Act, NMSA 1978, Sections 40-7-29 to -61 (Repl.Pamp.1989), contained a provision (Section 40-7-36(A)) specifying that consent to adoption or a relinquishment of parental rights for the purposes of adoption shall be implied if a parent "without justifiable cause" has, among other things, left a child with others for a designated period of time "without provisions for support and without communication." 2 Section 40-7-36(A)(2).
The trial court's judgment and decree in the instant case stated that the court found the "allegations of the First Amended Petition for Adoption [to have been] established." The petition filed by Petitioners alleged that Father's consent should be dispensed with (1) under Section 32-1-54(B)(1) (abandonment of child), and (2) under Section 32-1-54(B)(4) ().
In adopting its conclusions of law, the trial court concluded that Father failed to rebut a presumption of abandonment, that he impliedly consented to placement of his child with La Familia, and that it is in the best interests of the child that Father's parental rights "be terminated pursuant to [Section] 31-2-54(A) [sic] [32-1-54(A) ] NMSA 1978."
The trial court's judgment appears to be influenced by an error of law because there is no express finding of fact indicating that Father either intended to abandon J.J.B. or that Father was an unfit parent. The trial judge's oral remarks at the conclusion of the trial indicated that he did not believe that Father was an unfit parent. 3 However, even if we disregard these oral remarks and construe the trial court's findings as implicitly determining that Father was unfit, the record fails to contain sufficient evidence to establish by the standard of clear and convincing evidence that Father is unfit. Grounds for termination must be supported by clear and convincing evidence. Section 32-1-55(H); see also In re R.W., 108 N.M. 332, 336, 772 P.2d 366, 370 (Ct.App.), cert. denied,108 N.M. 273, 771 P.2d 981 (1989).
In examining whether the trial court's decision was affected by an error of law, we first inquire whether Father's parental rights were subject to termination under the presumptive abandonment statute, Section 32-1-54(B)(4), in the absence of a determination of parental unfitness.
Section 32-1-54 provides 4:
A. The rights of a parent, including an adjudicated, acknowledged, biological, presumed or adoptive parent, may be terminated with reference to a child by the court as provided in this section. In proceedings to terminate parental rights, the court shall give primary consideration to the physical, mental and emotional welfare and needs of the child.
B. The court shall terminate parental rights with respect to a minor child when:
(1) the minor has been abandoned by the parents;
(2) the minor has been left under such circumstances that the...
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