Debbie L. v. Galadriel R.
| Decision Date | 29 October 2008 |
| Docket Number | No. 27,101.,27,101. |
| Citation | 201 P.3d 169,2009 NMCA 007 |
| Parties | In the Matter of the Guardianship of Victoria R., a Child. DEBBIE L. and Francisco L., Petitioners-Appellees, v. GALADRIEL R., Respondent-Appellant. and Jeremy V., Respondent. |
| Court | Court of Appeals of New Mexico |
Finch & Olson, P.A., Jennifer L. Olson, Farmington, NM, for Appellees.
Caren I. Friedman, Santa Fe, NM, for Appellant.
{1} This guardianship proceeding arises out of a dispute among Petitioners, Debbie and Franciso L. (Petitioners), Respondent Galadriel R. (Mother), and Respondent Jeremy V. (Father) over who will have primary responsibility for raising a young child, Victoria R. (Child). Mother and Father are the biological parents of Child. Petitioners are adult caregivers with whom Child has lived for a substantial part of her young life.
{2} This case presents a potentially heartbreaking fact pattern: Mother and Father conceive Child during a casual sexual encounter; after birth, Child lives with Mother, while Father lives apart and has limited contact with Child; Mother, who is struggling with emotional problems, leaves Child with Petitioners, who assume day-to-day responsibilities for Child's care; because the placement is informal, amicable, and clearly successful in meeting Child's needs, the State does not become involved in overseeing Child's welfare, and a court is never called upon to enter a formal guardianship or custody order during the period of Mother's parental incapacity; Child lives with Petitioners for a significant period of her young life, forming a stable parent-child bond with Petitioners; later, Mother, asserting that she is now willing and able to care for Child, demands that Petitioners immediately return Child to her; Petitioners refuse to return Child and institute legal proceedings seeking legal recognition of their relationship with Child; ultimately, a court must decide whether Child should remain with Petitioners, whom Child views as her actual parents, or should be returned to Mother, who hopes to re-establish a parent-child relationship with Child.
{3} The district court, applying the Kinship Guardianship Act (KGA), NMSA 1978, §§ 40-10B-1 to -15 (2001), appointed Petitioners as Child's guardians and awarded Petitioners all legal rights and duties of a parent with the exception of the right to consent to Child's adoption; the district court awarded Mother substantial visitation. Mother appeals. We affirm.
{4} Prior to the enactment of the KGA, district courts had limited statutory authority to appoint guardians for children. In re Guardianship of Ashleigh R., 2002-NMCA-103, ¶¶ 8-11, 132 N.M. 772, 55 P.3d 984; see Roberts v. Staples, 79 N.M. 298, 300, 442 P.2d 788, 790 (1968) (). The KGA establishes procedures and substantive standards for effecting legal relationships between children and adult caretakers who have assumed the day-to-day responsibilities of caring for a child. The KGA grants standing to file a petition for a kinship guardianship to three categories of "caregiver." Section 40-10B-5(A). The present case involves a KGA petition based on a "kinship caregiver" relationship. The KGA defines "caregiver" as "an adult, who is not a parent of a child, with whom a child resides and who provides that child with the care, maintenance and supervision consistent with the duties and responsibilities of a parent of the child." Section 40-10B-3(A). The KGA defines "kinship" as "the relationship that exists between a child and a relative of the child, a godparent, a member of the child's tribe or clan or an adult with whom the child has a significant bond." Section 40-10B-3(C) (emphasis added).
{5} The KGA provides that:
A. Upon hearing, if the court finds that a qualified person seeks appointment, the venue is proper, the required notices have been given, the requirements of Subsection B of this section have been proved and the best interests of the minor will be served by the requested appointment, it shall make the appointment....
B. A guardian may be appointed pursuant to the Kinship Guardianship Act ... only if:
(1) a parent of the child is living and has consented in writing to the appointment of a guardian and the consent has not been withdrawn; [or]
(2) a parent of the child is living but all parental rights in regard to the child have been terminated or suspended by prior court order; or
(3) the child has resided with the petitioner without the parent for a period of ninety days or more immediately preceding the date the petition is filed and a parent having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance and supervision for the child or there are extraordinary circumstances; and
(4) no guardian of the child is currently appointed pursuant to a provision of the Uniform Probate Code.
Section 40-10B-8.
{6} We begin our analysis by noting what is not at issue. Mother does not argue that the requirements of Section 40-10B-8(A), including the requirement that Petitioners be qualified persons to bring a KGA action and that Child's best interests will be served by the guardianship, have not been met. Petitioners do not claim that Mother is unwilling or unable to provide Child with adequate care, maintenance, and supervision. There is no dispute that Section 40-10B-8(B)(2) is inapplicable: neither Mother's nor Father's parental rights have been terminated or suspended by court order. There is no dispute that Section 40-10B-8(B)(4) is inapplicable: no guardian is currently appointed for Child under the Probate Code. Further, we do not understand Mother to be arguing that the district court's findings of fact are not supported by substantial evidence; rather, to the extent Mother takes issue with the district court's findings of fact, we understand Mother to be arguing that we should view the evidence in a light more favorable to Mother. Since it is not our function as an appellate court to re-weigh the evidence, and in view of the absence of a proper challenge to the sufficiency of the evidence supporting specific findings, see generally Rule 12-213(A)(4) NMRA (), Mother is bound by the facts as found by the district court. In re Adoption of Doe, 98 N.M. 340, 344, 648 P.2d 798, 802 (Ct.App.1982).
{7} As Mother notes in her brief in chief, "[t]he issue in the trial court essentially boiled down to whether `extraordinary circumstances' within the meaning of the [KGA] justified the appointment of guardians for [Child]." On appeal, Mother argues that extraordinary circumstances within the meaning of Section 40-10B-8(B)(3) are not present, and therefore the district court should have applied the parental rights doctrine, awarding custody to Mother as Child's fit biological parent without reaching the question of whether appointment of Petitioners as KGA guardians serves Child's best interests. To the extent that Mother's arguments require us to decide what the Legislature meant by "extraordinary circumstances," her arguments present a question of statutory construction subject to de novo review; to the extent her arguments require us to apply this standard to the historical facts found by the district court, Mother's arguments present a mixed question of fact and law, which also is subject to de novo review. See State v. Attaway, 117 N.M. 141, 144-46, 870 P.2d 103, 106-08 (1994), modified on other grounds by State v. Lopez, 2005-NMSC-018, ¶¶ 13-20, 138 N.M. 9, 116 P.3d 80.1
{8} This appeal is the first case in which we have been called upon to review a judgment appointing guardians under the KGA. Previously, in In re Ashleigh, a guardianship-custody case that arose before the effective date of the KGA and therefore was not controlled by the KGA, we equated extraordinary circumstances with "`grave reasons' approaching, but not necessarily reaching, those required for termination of parental rights." 2002-NMCA-103, ¶ 25, 132 N.M. 772, 55 P.3d 984 (citation omitted). Upon further reflection, we note significant differences between termination proceedings and the KGA proceedings that were not considered in In re Ashleigh. First, nothing in the KGA suggests that the KGA may be invoked to terminate a parent's rights. Second, unlike the termination of parental rights, a KGA guardianship is revocable. Section 40-10B-11 allows a parent to move to revoke a KGA guardianship upon a showing of a change in circumstances coupled with a showing that revocation of the guardianship is in the best interests of the child. Third, the KGA expressly authorizes a district court to order that the parent retain parental rights and duties. Section 40-10B-13(B). Thus, as we understand the KGA, the incidents of a KGA guardianship may be narrowly tailored to the circumstances of a given case, depending on the child's needs and the parent's capabilities. Fourth, the KGA provides that a district court retains continuing jurisdiction over a KGA guardianship. Section 40-10B-14. As a parent reestablishes his or her relationship with the child, the parent may invoke the district court's continuing jurisdiction to seek a greater share of parental rights and responsibilities. Our Legislature did not intend a KGA guardianship to completely and irrevocably sever the relationship between a parent and the child, nor did it intend for a KGA guardianship to be a one-size-fits-all remedy. In determining what the Legislature meant by "extraordinary circumstances" in the context of the KGA, we must distinguish the unique provisions of the KGA and the malleable nature of a guardianship established under it from other contexts, in particular, termination of parental rights. Incorporation into the KGA of a substantive...
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