Doe's Adoption, Matter of

• Decision Date: 31 August 1976
• Docket Number: No. 2407,2407
• Citation: 1976 NMCA 84,555 P.2d 906,89 N.M. 606
• Parties: In the Matter of the ADOPTION OF John DOE, a child. Grandfather DOE, on behalf of John Doe, a child, Petitioner-Appellant, v. Richard HEIM, Director, New Mexico Department of Health and Social Services, Barbara Daniels, Director, Chaparral Home & Adoption Services, John and Mary Doe, Respondents-Appellees.
• Court: Court of Appeals of New Mexico

Page 906

555 P.2d 906

89 N.M. 606

In the Matter of the ADOPTION OF John DOE, a child.

Grandfather DOE, on behalf of John Doe, a child, Petitioner-Appellant, v. Richard HEIM, Director, New Mexico Department of Health and Social Services, Barbara Daniels, Director,

Chaparral Home & Adoption Services, John

and Mary Doe, Respondents-Appellees.

No. 2407.

Court of Appeals of New Mexico.

Aug. 31, 1976.

Rehearing Denied Sept. 10, 1976.

Certiorari Denied Oct. 21, 1976.

Michael V. Stuhff, Navajo Legal Aid & Defender Service, Window Rock, Ariz., Noelle L'Hommedieu Schoen, Albuquerque, for appellant Grandfather Doe

Patricia M. Goldsmith, DMA, People's Legal Services, Window Rock, Ariz., for natural father.

Irwin S. Moise, Ronald J. Segel, Sutin, Thayer & Browne, P.C., Albuquerque, for appellees Chaparral Home & Adoption Services, John and Mary Doe.

Toney Anaya, Atty. Gen., Julia C. Southerland, David S. Cohen, Asst. Attys. Gen., Sante Fe, for amicus curiae New Mexico Health & Social Services Dept.

Bertram E. Hirsch, Lawrence A. Rappoport, New York City, for amici curiae Ass'n on American Indian Affairs, Inc., and the Navajo Nation of Indiana.

OPINION

WOOD, Chief Judge.

This appeal involves the adoption and custody of a child. The mother, father and grandfather of the child are Navajos. Chaparral (Chaparral Home & Adoption Services) is the adoption agency. Petitioners, the adoptive parents, are non-Indians. 'Association' refers to the Association on American Indian Affairs, Inc. and the Navajo Nation of Indians. H.S.S.D. is the New Mexico Department of Health and Social Services. Association and H.S.S.D. are amici curiae; H.S.S.D. having been dismissed as a party to the habeas corpus proceeding.

The mother turned the child over to Chaparral for adoption. Chaparral placed the child with petitioners. Petitioners filed a petition to adopt the child on May 17, 1975. Grandfather brought a habeas corpus proceeding on May, 22, 1975. The trial court dismissed the habeas corpus proceeding and granted the adoption petition. Grandfather and father appeal.

We divide the issues into three categories. Part A considers matters not raised in the trial court or not supported by the record. Part B considers the grandfather's custody claims. Part C considers the claims involving the adoption. Statutory references are to the 'Adoption Act', § 22--2--20 and following sections, N.M.S.A. 1953 (1975 Supp.) unless otherwise noted.

A. Procedural Matters

Many of the matters argued in the briefs of the Association, the grandfather and the father either (1) ignore or misconstrue the proceedings in the trial court, or (2) are raised for the first time on appeal. Under this point we review the proceedings and identify and dispose of matters not properly before us. We also identify and dispose of contentions for which there is no support in the record. In considering these matters, the following rules are applicable: (a) Matters not of record are not before the reviewing court on appeal. Macnair v. Stueber, 84 N.M. 93, 500 P.2d 178 (1972). (b) Matters not presented to or ruled on by the trial court are not before us for review. Rule of Appellate Procedure 11. (c) The requirement that matters must have been decided by the trial court applies to constitutional questions. Chessport Millworks, Inc. v. Solie, 86 N.M. 265, 522 P.2d 812 (Ct.App.1974). (d) The Association, as an amicus, must accept the case on the issues as raised by the parties. State ex rel. Castillo Corp. v. New Mexico St. T. Com'n, 79 N.M. 357, 443 P.2d 850 (1968).

The grandfather sought custody of the child in the habeas corpus proceeding. An evidentiary hearing was held on June 27, 1975. The trial court limited the hearing to the issue of whether the grandfather had standing to obtain custody of the child. At the conclusion of this hearing the court ruled orally that the grandfather had no standing to challenge the custody of the child under New Mexico law. The trial court invited briefs on the question of whether the grandfather had a right to custody of the child under Navajo custom. Apparently there was an oral ruling of the court because on July 18, 1975 the grandfather moved for rehearing. His motion argued both New Mexico law and Navajo custom. On September 2, 1975 an order was entered discharging the writ of habeas corpus. In that order the trial court found that the grandfather was not a custodian within the meaning of New Mexico's adoption statutes and, therefore, the grandfather lacked standing.

At a motion hearing on September 29, 1975, the trial court orally announced that it was going to reconsider its decision in the habeas corpus proceeding on the basis of the decision in Shortly v. Scott, 87 N.M. 490, 535 P.2d 1341 (1975).

On November 12, 1975 the trial court held an evidentiary hearing on the father's motion to strike his written consent to the adoption. At the conclusion of the hearing, the trial court orally ruled that there had been a fraud upon the father and that the father's consent would be set aside.

On November 18, 1975 the trial court stated that it had 'generally' disposed of the habeas corpus proceeding and had set aside the father's consent. The court proceeded with an evidentiary hearing on the adoption petition and on the question of whether the father had abandoned the child. The court announced that if the child had to be placed somewhere, the grandfather would be one of the persons considered as a possible placement. The grandfather participated in this hearing; his counsel called witnesses on the grandfather's behalf, cross-examined witnesses called by the petitioners, and made a closing argument.

Petitioners, the father and the grandfather submitted requested findings of fact and conclusions of law. The trial court entered its findings and conclusions on December 18, 1975. Both the requests and the trial court's decision went to the merits of the habeas corpus proceeding and the adoption petition.

On December 19, 1975 the trial court entered orders which denied the father's motion for rehearing, discharged the writ of habeas corpus after rehearing, and granted the adoption petition.

The grandfather asserts that the trial court denied him standing to assert his right to custody and this denied him due process of law. He also asserts that he was denied due process because the trial court made it clear, in regard to the adoption proceedings, that the grandfather would be considered only as a possible placement for the child. The record shows that the grandfather's right to custody was fully litigated and that he participated fully in the hearing which began November 18, 1975. The contentions have no record support. The contentions confuse the purported ruling as to lack of standing (discussed subsequently in this opinion at B(5)) with the right to litigate the claims. The claims were fully litigated. The grandfather asserts he has a right to raise a family and the trial court failed to protect that right. The Association asserts that Navajo parents and children have a right to live together as a family and protect their cultural integrity. According to the grandfather and the Association, these are rights found in the First, Ninth and Fourteenth Amendments to the Constitution of the United States and were rights violated by the trial court. These contentions were neither presented to nor ruled on by the trial court.

The Association asserts the father and grandfather were denied due process of law by the failure of the trial court to recognize Navajo extended family structures and child rearing gractices. No such claim was presented to or ruled on by the trial court.

The Association contends that New Mexico's adoption act, on its face, and as applied, violated both due process and equal protection of the law. No such claim was presented to or rules on by the trial court.

The Association claims just about everybody's right to due process was violated because the trial court utilized the most drastic alternative in determining the best interests of the child. The Association also claims that the term 'abandonment' in our adoption statutes is unconstitutionally vague. These claims were not presented to nor ruled on by the trial court.

The Association, the father and the grandfather, contend that the trial court erred in failing to hold a separate hearing concerning the termination of the father's parental rights before conducting a hearing on the adoption application. These contentions were not presented to nor ruled on by the trial court.

The Association claims the father was denied equal protection of the law because the trial court gave more weight to the mother's interests than to the father's interests. No such claim was presented to nor ruled on by the trial court.

The grandfather contends that somehow Chaparral is responsible for the child having been removed from the grandfather's house and that before removal of the child, Chaparral should have held a hearing for 'custodial relatives' because of the Navajo tradition of an extended family. The record does not support these claims. The mother and child were living in the grandfather's home; the mother brought the child to Chaparral. Nothing shows that Chaparral instituted or was responsible for the mother's action.

The father claims the trial court erred in permitting the mother's deposition to be read into evidence at the hearing which began November 18, 1975. The record shows the father withdrew his objection to this procedure.

The father contends that the 'basic error' of the trial court, in deciding that the father had abandoned the child, was the failure to separate issues relating to abandonment by the father and those relating to the fitness of the father. The 'failure to separate' argument is applied both to the procedure followed in receiving evidence and to the analysis of the evidence. The record does not support these contentions. There was no objection to...