Chatterjee v. King

• Citation: 149 N.M. 625,253 P.3d 915,2011 -NMCA- 012
• Decision Date: 27 January 2011
• Docket Number: No. 29,823.,29,823.
• Parties: Bani CHATTERJEE, Petitioner–Appellant,v.Taya KING, Respondent–Appellee.
• Court: Court of Appeals of New Mexico

149 N.M. 625

253 P.3d 915

2011 -NMCA- 012

Bani CHATTERJEE, Petitioner–Appellant,

v.Taya KING, Respondent–Appellee.

No. 29,823.

Court of Appeals of New Mexico.

Dec. 1, 2010.Certiorari Granted, Jan. 27, 2011, No. 32,789.

Caren I. Friedman, Santa Fe, NM, N. Lynn Perls, Albuquerque, NM, for Appellant.Kerri L. Allensworth, Atkinson & Kelsey, P.A., Patrick L. McDaniel, Albuquerque, NM, for Appellee.New Mexico Legal Group, P.C., Julie Bishop, University of New Mexico School of Law, Antoinette Sedillo Lopez, Professor, Albuquerque, NM, for Amicus Curiae, National Center for Lesbian Rights.

OPINION

WECHSLER, Judge.

{1} This case involves the issue of whether a non-parent has standing to assert a custody and/or visitation claim, absent a finding of unfitness of the natural or adoptive parent, under New Mexico statutory or case law. Petitioner Bani Chatterjee appeals the district court's dismissal of her petition to establish parentage and determine custody and time sharing with regard to the adopted child of her former partner, Respondent Taya King, as well as the denial of her motion to reconsider. We hold that NMSA 1978, Section 40–4–9.1(K) (1999) limits standing in a custody case to natural and adoptive parents and, as a result, denies Petitioner standing to bring her custody claim. We further hold that Section 40–11–5(A) of the Uniform Parentage Act (the UPA), NMSA 1978, §§ 40–11–1 to –23 (1986, as amended through 2004) (repealed and recompiled at NMSA 1978, Sections 40–11A–101 to –903 (2009))—presuming that a father is the natural father under certain circumstances—does not apply to women and, therefore, does not establish natural parenthood in Petitioner sufficient to grant her standing. We additionally hold, however, that the equitable power of the courts mandates a consideration of the best interests of the child. As such, if the allegations in the petition are proven, the best interests of the child may accord Petitioner standing to assert her visitation claim. Therefore, we affirm in part and reverse in part, and we remand to the district court to consider the allegations in the petition and the best interests of the child and to determine whether Petitioner has standing to seek visitation with the child.

BACKGROUND

{2} Petitioner and Respondent were in a committed relationship for several years when they traveled to Russia to adopt the child. Although Petitioner accompanied Respondent to Russia, she did not adopt the child at that time or in the time since they returned. After several years together, Petitioner and Respondent ended their relationship, and Respondent moved out with the child. Respondent initially allowed Petitioner to visit with the child but, after time, reduced the frequency of visits and ultimately terminated them. Shortly thereafter, Respondent moved with the child to Colorado.

{3} Petitioner then filed a petition to establish parentage and determine custody and time sharing with regard to the child. Petitioner alleged that she, Respondent, and the child had lived as a family and that, with Respondent's consent, both she and Respondent raised the child and held themselves out as parents. Petitioner further alleged that she had provided financial and emotional support for the child, had cared for the child on a daily basis, and had formed a parental relationship with the child. Respondent filed a motion to dismiss the petition, arguing that (1) pursuant to Rule 1–012(B)(6) NMRA, Petitioner is unable to state a claim for relief under the UPA because she is neither the biological nor adoptive parent of the child, and (2) pursuant to Section 40–4–9.1(K), Petitioner, as a third party seeking custody and visitation, is prohibited from gaining rights absent a showing of unfitness of the adoptive parent. The district court ruled that Section 40–4–9.1(K) does not grant standing to Petitioner because it requires a finding of unfitness and the petition alleges that both parents are fit. The court further stated that the UPA does not apply because it “read the [UPA] as applying between a child and its natural and adoptive parents only, of which the petitioner is neither.” The district court therefore granted Respondent's motion to dismiss, concluding that the petition failed to state a claim upon which relief can be granted. Petitioner filed a motion to reconsider, which the district court denied.

SUMMARY OF THE ISSUES

{4} This case deals broadly with standing. There is a difference in cases addressing standing between an action for custody and one for visitation. As this Court discussed in Rhinehart v. Nowlin, “it is clear that the [L]egislature did not equate custody and visitation rights.” 111 N.M. 319, 324, 805 P.2d 88, 93 (Ct.App.1990). We therefore respond to Petitioner's claims for custody and visitation separately. In order to evaluate Petitioner's standing case, we first consider statutory construction and legislative intent, and then we analyze existing New Mexico case law.

{5} The central issue is the application of Section 40–4–9.1(K). Therefore, we first evaluate the plain language and legislative intent of the custody statute and the related definitions in Section 40–4–9.1(K), (L) to determine whether the Legislature has expressly limited custody actions to adoptive and natural parents, absent a finding of unfitness of the natural or adoptive parent. Within that context, we analyze Petitioner's argument that she has standing under Section 40–4–9.1(K) because of the definition of “parent” in Section 40–4–9.1(L)(5). We then analyze our Supreme Court's expansion of Section 40–4–9.1(K) to allow for standing in cases in which extraordinary circumstances are present to determine whether it applies to Petitioner.

{6} We next consider Petitioner's arguments under the UPA. We first consider whether Section 40–11–5(A)(4), the “holding out” provision with regard to paternity, should be gender neutral and therefore grant Petitioner standing for her custody claim as the child's natural mother. We then evaluate Sections 40–11–7 and 40–11–21 to determine whether they are sufficient to grant Petitioner standing for custody as the child's natural mother.

{7} After determining that New Mexico statutory law does not grant Petitioner standing to bring her custody claim, we discuss existing case law regarding custody for a non-parent. We address Petitioner's claim that the courts have plenary equitable power and that the best interests of the child should override any statutory limit to standing for a custody case in Section 40–4–9.1(K). We then address the effect of cases that appear to acknowledge standing for a person in Petitioner's situation.

{8} Finally, we address Petitioner's claim for visitation and the courts' equitable powers in situations not expressly limited by the Legislature. We discuss the allegations in Petitioner's petition to determine whether the district court's consideration of the best interests of the child might warrant granting standing to Petitioner. We also address Respondent's assertion that Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), limits a non-parent's claim for standing with respect to custody and visitation.

STANDING

{9} Petitioner argues that the district court erred in dismissing her petition for failure to state a claim because, “under numerous sources of law, [Petitioner] has parental standing to seek custody of, and visitation with, [the child].” “When a statute creates a cause of action and designates who may sue, the issue of standing becomes interwoven with that of subject matter jurisdiction. Standing then becomes a jurisdictional prerequisite to an action.” Am. Civil Liberties Union of N.M. v. City of Albuquerque, 2008–NMSC–045, ¶ 9 n. 1, 144 N.M. 471, 188 P.3d 1222 (internal quotation marks and citation omitted). We review de novo whether a party has standing to bring a claim. Vescio v. Wolf, 2009–NMCA–129, ¶ 8, 147 N.M. 374, 223 P.3d 371. We also review “[a] district court's decision to dismiss a case for failure to state a claim under Rule 1–012(B)(6) ... de novo.” N.M. Pub. Sch. Ins. Auth. v. Arthur J. Gallagher & Co., 2008–NMSC–067, ¶ 11, 145 N.M. 316, 198 P.3d 342 (internal quotation marks and citation omitted). In addressing Rule 1–012(B)(6) claims, we accept as true all well-pleaded facts and resolve any doubt in favor of the complaint's sufficiency. N.M. Pub. Sch. Ins. Auth., 2008–NMSC–067, ¶ 11, 145 N.M. 316, 198 P.3d 342; see also Vescio, 2009–NMCA–129, ¶ 8, 147 N.M. 374, 223 P.3d 371 (stating the same with regard to standing). We uphold orders to dismiss for failure to state a claim only when it appears that the plaintiff cannot recover or obtain relief under any set of facts provable under the complaint. N.M. Pub. Sch. Ins. Auth., 2008–NMSC–067, ¶ 11, 145 N.M. 316, 198 P.3d 342.

Section 40–4–9.1(K)

{10} Section 40–4–9.1(K) states, “[w]hen any person other than a natural or adoptive parent seeks custody of a child, no such person shall be awarded custody absent a showing of unfitness of the natural or adoptive parent.” When interpreting legislative intent, we first look to the plain language of a statute and give words their ordinary meaning. Albuquerque Bernalillo County Water Util. Auth. v. N.M. Pub. Regulation Comm'n, 2010–NMSC–013, ¶ 52, 148 N.M. 21, 229 P.3d 494. We will not read language into a statute that is not there, particularly when it makes sense as written. Cobb v. State Canvassing Bd., 2006–NMSC–034, ¶ 34, 140 N.M. 77, 140 P.3d 498.

{11} Subsection (K) is our Legislature's codification of the oft-discussed parental preference doctrine. See Rhinehart, 111 N.M. at 324, 805 P.2d at 93 (stating that Sections 40–4–9.1(K), 40–4–7 to –9.1, and 40–9–1, when taken together, “reflect the [L]egislature's intent to grant trial courts wide discretion in awarding either custody or visitation based on the best interests of the children, subject to [the] parental preference doctrine in custody matters”...