Adoption of John Doe, Matter of
| Decision Date | 20 May 1982 |
| Docket Number | No. 5426,5426 |
| Citation | 648 P.2d 798,98 N.M. 340,1982 NMCA 94 |
| Parties | In the Matter of the ADOPTION of John DOE, a child and Concerning Gail Wade Brownfield and George Wesley Brownfield, Petitioners-Appellees, and Laura Leslie Cook, Respondent-Appellant and Jeffrey Latawiec, Respondent-Appellee. |
| Court | Court of Appeals of New Mexico |
This is an appeal by Laura Leslie Cook, (appellant), the natural mother of a minor child, from an order of the Otero County District Court, terminating her parental rights and granting a decree of adoption to petitioners, George Wesley Brownfield and Gail Wade Brownfield (Brownfields).
The minor child who is the subject of this action was born July 14, 1972, in Tucson, Arizona, to appellant and Jeffrey Latawiec. Appellant and the child's natural father were divorced in June, 1973, and appellant was awarded the legal custody of their minor son. Appellant married Mr. Brownfield, appellee, in October, 1973, and they resided in Las Cruces, New Mexico, with appellant's minor son. Appellant separated from Mr. Brownfield after approximately two weeks of marriage, taking her son with her to Tucson, Arizona, where she resumed living with her first husband until May, 1975.
In May, 1975, appellant reconciled with her husband, Mr. Brownfield, and she and her minor son resumed living with him in Las Cruces until January, 1976, when appellant again separated from Mr. Brownfield. Within approximately three weeks following their separation, appellant left her son with Mr. Brownfield. Mr. Brownfield moved to Odessa, Texas, to obtain other employment in April, 1976, and with appellant's consent took the child with him. The child has remained living with Mr. Brownfield since 1976, when he was four years old, until the present time. The child is now almost ten years of age.
Appellant moved from Las Cruces in November, 1976, to Ft. Collins, Colorado, where she resided until the summer of 1977, when she moved to Seattle, Washington. Before leaving Colorado, appellant visited her son in Odessa, Texas. Appellant and Mr. Brownfield remained separated following her departure in 1976, up to and including the date of their divorce on February 6, 1978. Thereafter, Mr. Brownfield married appellee, Gail Tawney Brownfield, on February 25, 1978. The minor child has continued to reside with the Brownfields since then.
Appellant visited her son for several days in July, 1978, and maintained contact with the child by telephone approximately twice a month.
In July, 1978, appellant and Mr. Brownfield signed an informal written contract which provided, inter alia, that appellant agreed to leave her son in the custody of Mr. Brownfield for an indefinite period, and expressly retained her parental rights and rights of visitation. The agreement further provided that Mr. Brownfield would never interfere with appellant's rights as a mother to the child and that he would share with appellant in the payment of the child's medical and dental expenses.
In 1979, appellant periodically began sending money to Mr. Brownfield for her son's support. In 1979, at age seven, the child flew to Seattle, Washington, for a visit of approximately two weeks with appellant and her boyfriend. At that time appellant was living with Arthur Cook, whom she subsequently married and with whom she has had two other children.
Since the summer of 1979, when her minor son visited with her in Seattle, appellant has visited with her son in Albuquerque, New Mexico, in December, 1979, and in November, 1980.
On November 16, 1980, appellant went to the Brownfield residence in Alamogordo, New Mexico, where the Brownfields had moved with the child. Appellant informed the Brownfields she desired to take her son to Las Cruces for a day's visit. In fact, appellant planned to take her son with her to Seattle. Appellant did not tell the Brownfields of her intention to take her son to live with her sensing that they would legally resist such move.
Appellant and her son flew from El Paso, Texas, to Denver, Colorado, on the first leg of their proposed return to Seattle. The Brownfields discovered appellant's departure with the minor child from El Paso and obtained an ex parte Temporary Restraining Order from the Otero County District Court, giving them temporary custody of the minor child. Mrs. Brownfield, an attorney, signed a criminal complaint charging appellant with unlawful custodial interference. Appellant was taken into police custody when she and her son landed in Denver, Colorado, and the child was returned to the Brownfields pursuant to the ex parte court order obtained from the Otero County District Court.
After the child was returned to the physical custody of the Brownfields, they immediately filed a petition in the Otero District Court, seeking to adopt the child and to terminate the parental rights of appellant.
Appellant filed a response to the petition for adoption denying the Brownfields' legal right to adopt the child and asserting a counterclaim seeking legal custody. On March 23, 1981, appellant also moved for an order requiring the Brownfields to permit her to have reasonable visitation rights with her minor child during the pendency of the proceedings. The trial court ordered that appellant could visit her son every other Monday for two hours under the supervision and at the office of a child psychologist.
The natural father of the child, Jeffrey Latawiec, entered his appearance in the proceedings and gave written consent to the Brownfields to adopt the child.
The trial court appointed an attorney and a guardian ad litem to represent the minor child. The guardian ad litem supports the trial court's decision to permit the Brownfields' adoption of the child.
Following trial on the merits, the trial court entered its decision adopting findings of fact and conclusions of law, terminated appellant's parental rights to her son on the grounds specified in § 40-7-4(B)(4), N.M.S.A.1978 (Supp.1981), and adjudged the Brownfields to be the adoptive parents of the child.
The issues raised by appellant are whether: (1) the trial court erred in terminating appellant's parental rights to her son on the evidence presented below; (2) the termination of parental rights was improper because of appellee's alleged breach of contract of custody and fiduciary duty; (3) the adoption was barred by lack of compliance with § 40-7-19, N.M.S.A.1978, of the Adoption Act; and (4) the trial court erroneously applied the best interests of the child as a standard in the termination proceedings. We affirm.
Appellant asserts the trial court erred in terminating her parental rights because evidence adduced at the hearing on termination failed to support by a standard of clear and convincing evidence the finding that the parent-child relationship between appellant and her minor son had disintegrated as required under the provision of § 40-7-4(B)(4), supra.
The petition for adoption filed by the Brownfields alleged the existence of two separate grounds upon which termination of appellant's parental rights were sought: (1) abandonment, or (2) the requirements of § 40-7-4(B)(4), supra.
In determining that appellant's parental rights should be terminated, the trial court did not find that appellant was an unfit mother or that the child was abandoned, abused or neglected. The court expressly adopted findings of fact determining that the evidence showed: (1) the child has lived in the home of petitioners for an extended period of time; (2) the parent-child relationship between the minor and appellant has disintegrated; (3) a psychological parent-child relationship has developed between the family of petitioners and the child; (4) the child is of sufficient capacity to express a preference and he prefers to no longer live with his natural mother; and (5) petitioners wish to adopt the minor child.
The decision of the trial court terminating appellant's parental rights was based solely upon the provisions of § 40-7-4(B)(4), supra, which provides:
B The court shall terminate parental rights with respect to a minor child when:
(4) the child has been placed in foster care by a court order or has been otherwise placed by parents or others into the physical custody of such family and the following conditions exist:
(a) the child has lived in the foster home for an extended period of time;
(b) the parent/child relationship has disintegrated;
(c) a psychological parent/child relationship has developed between the foster family and the child;
(d) if the court deems the child of sufficient capacity to express a preference, the child prefers no longer to live with the natural parent; and
(e) the foster family desires to adopt the child.
Appellant has not challenged any of the findings of fact adopted by the court, except finding no. 3:
3. The parent/child relationship between (John Doe) and Respondent, Laura Leslie Cook, has disintegrated.
By not challenging any of the court's other findings of fact, we must accept them as binding on appeal. Lerma v. Romero, 87 N.M. 3, 528 P.2d 647 (1974); Ojinaga v. Dressman, 83 N.M. 508, 494 P.2d 170 (Ct.App.1972).
New Mexico courts have been particularly sensitive to protecting parental rights and the rights of parents to rear their children. Shorty v. Scott, 87 N.M. 490, 535 P.2d 1341 (1975); Roberts v. Staples, 79 N.M. 298, 442 P.2d 788 (1968); Greene v. French, 97 N.M. 493, 641 P.2d 524 (Ct.App.1982); see Nevelos v. Railston, 65 N.M. 250, 335 P.2d 573 (1959).
In Shorty v. Scott, supra, a case involving child custody rather...
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