Freedom C. v. Brian D. (In re Guardianship of Patrick D.)
| Decision Date | 30 May 2012 |
| Docket Number | No. 32,944.,32,944. |
| Citation | 280 P.3d 909,2012 -NMSC- 017 |
| Parties | In the Matter of GUARDIANSHIP OF PATRICK D., a child, Freedom C., Petitioner–Respondent, v. Brian D. and Peggy D., Petitioners–Petitioners. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
The Pickett Law Firm, L.L.C., Mark L. Pickett, Las Cruces, NM, for Petitioners.
Rodey, Dickason, Sloan, Akin & Robb, P.A., Edward R. Ricco, Jocelyn C. Drennan, Albuquerque, NM, for Respondent.
{1} Several months after being granted sole legal and physical custody of Patrick D. (Child), Brian D. and Peggy D. (Grandparents) filed a petition for guardianship and custody pursuant to the Kinship Guardianship Act (the Act), NMSA 1978, §§ 40–10B–1 to –15 (2001). Julie Ann D. (Mother), Grandparents' daughter, consented to the guardianship, but Freedom C. (Father) opposed it. After an evidentiary hearing, the district court found both Mother and Father unfit to raise Child. The district court granted guardianship to Grandparents, granted time-sharing privileges to both Mother and Father, and held that it would review the guardianship arrangement in twenty-four months, which would have been on or about November 4, 2011.
{2} Father appealed to the Court of Appeals, which reversed the district court. Freedom C. v. Julie Ann D. (In re Guardianship of Patrick D.), 2011–NMCA–040, ¶¶ 1, 24, 149 N.M. 588, 252 P.3d 812. The Court of Appeals analyzed whether the prerequisites of Section 40–10B–8(B) had been satisfied, confining its analysis to Sections 40–10B–8(B)(1) and (3). In re Guardianship of Patrick D., 2011–NMCA–040, ¶ 17, 149 N.M. 588, 252 P.3d 812. The Court of Appeals held that the consent provision in Section 40–10B–8(B)(1) was not satisfied because both parents did not consent to the guardianship. In re Guardianship of Patrick D., 2011–NMCA–040, ¶ 18, 149 N.M. 588, 252 P.3d 812. The Court of Appeals also held that Section 40–10B–8(B)(3) was not satisfied because Mother continued to reside with Grandparents and Child and because neither Mother nor Father “had legal custody of Child during the critical ninety-day period.” In re Guardianship of Patrick D., 2011–NMCA–040, ¶ 20, 149 N.M. 588, 252 P.3d 812. The Court of Appeals also concluded that because neither of the prerequisites it analyzed under Section 40–10B–8(B) were satisfied, the district court did not have the authority to grant a guardianship of Child to Grandparents. In re Guardianship of Patrick D., 2011–NMCA–040, ¶ 22, 149 N.M. 588, 252 P.3d 812. Instead, the Court of Appeals opined that the district court should simply have continued the custody arrangement it previously ordered without creating a guardianship. Id. ¶ 21.
{3} We granted a petition for writ of certiorari filed by Grandparents to consider (1) whether application of the Act is appropriate under the circumstances of this case, and (2) whether any of the prerequisites for its application were met. Freedom C. v. Brian D. (In re Guardianship of Patrick D.), 2011–NMCERT–005, 150 N.M. 667, 265 P.3d 718. Because we conclude that Section 40–10B–8(B)(3) was met under the facts, circumstances, and procedure of this case, we reverse the Court of Appeals and remand to the district court to schedule a hearing to review the guardianship arrangement as previously anticipated by its order.
{4} This case has an unusual procedural history. Child, Mother, and Father lived with Grandparents for three years, during which time Grandparents financially supported the entire family. In October 2008, Father moved out of the house after Mother ended their relationship. Father filed a petition for a protective order, alleging domestic abuse by Mother. By filing the petition, Father gained temporary custody of Child. Two weeks later, the district court dismissed Father's petition, finding that it was not supported by substantial evidence. Mother filed an emergency motion seeking custody of Child, and both parents sought sole legal and physical custody of Child. In response, Father filed a petition to establish paternity, determine custody and time-sharing, and assess child support.
{5} The district court held a hearing on Mother's emergency motion on October 27, 2008. Each parent testified that the other parent had engaged in dangerous behavior toward Child. The district court found that it was in Child's best interests for Grandparents to have temporary sole legal and physical custody, with an opportunity for Mother and Father to have time-sharing arrangements.1 The district court also appointed an expert under Rule 11–706 NMRA to make recommendations to the court regarding custody.
{6} At some point after this hearing, Father was detained by immigration officials because he had remained in the United States after his student visa had expired. Grandparents filed a petition for appointment of guardianship and custody under the Act on July 15, 2009, almost nine months after being granted sole legal and physical custody of Child, and while Father remained in detention. The district court held a hearing on all pending motions on October 19, 2009, after Father had been released from detention. Father, Mother, Grandparents, and Father's immigration attorney all testified during that hearing. The district court found Mother and Father unfit to raise Child, granted Grandparents' petition for kinship guardianship, and provided time-sharing for Mother and Father. The district court also held that it would review the kinship guardianship and timesharing in twenty-four months.
{7} The Act was enacted to ensure that children in New Mexico have the opportunity to be raised by their relatives when both of their parents are unwilling and/or unable to care for them. The Legislature explained the Act's policy and purposes as follows:
A. It is the policy of the state that the interests of children are best served when they are raised by their parents. When neither parent is able or willing to provide appropriate care, guidance and supervision to a child, it is the policy of the state that, whenever possible, a child should be raised by family members or kinship caregivers.
B. The Act is intended to address those cases where a parent has left a child or children in the care of another for ninety consecutive days and that arrangement leaves the child or children without appropriate care, guidance or supervision.
C. The purposes of the Act [40–10B–1 NMSA 1978] are to:
(1) establish procedures to effect a legal relationship between a child and a kinship caregiver when the child is not residing with either parent; and
(2) provide a child with a stable and consistent relationship with a kinship caregiver that will enable the child to develop physically, mentally and emotionally to the maximum extent possible when the child's parents are not willing or able to do so.
Section 40–10B–2 (emphasis added).
{8} A person appointed to be a guardian under the Act “has the legal rights and duties of a parent except the right to consent to adoption of the child and except for parental rights and duties that the court orders retained by a parent.” Section 40–10B–13(A). A certified copy of the appointing order is satisfactory proof of the guardian's authority. Section 40–10B–13(C). Another important goal of a kinship guardianship is to give the parents an opportunity to maintain or rebuild their relationship with the child. See§§ 40–10B–8(E), –12(A).
{9} The Act grants district courts the authority to appoint a kinship guardian where “the court finds that a qualified person seeks appointment, the venue is proper, the required notices have been given, the requirements of Subsection B ... have been proved and the best interests of the minor will be served by the requested appointment.” Section 40–10B–8(A) (emphasis added). At issue in this case is whether “the requirements of Subsection B ... have been proved.” Id.
{10} Subsection B provides that:
A guardian may be appointed pursuant to the Act [40–10B–1 NMSA 1978] 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;
(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 [45–1–101 NMSA 1978].
Section 40–10B–8(B) (emphasis added).
{11} Grandparents contend that “parent” in Subsection B should be interpreted to mean that as long as one parent meets a requirement of Section 40–10B–8(B), the district court is authorized to consider granting a guardianship under the Act, even if the other parent does not meet any of the requirements. Grandparents rely on the language of Subsection B(1), which requires only that “ a parent” has granted consent for the district court to be able to consider a kinship guardianship. Section 40–10B–8(B)(1) (emphasis added). On the other hand, Father contends that both parents must grant their consent for the district court to consider a kinship guardianship for the provisions of Subsection B(1) to apply. Father suggests that “a parent” as used in Subsection B(1) should be read to mean “both parents.” This legal argument implies that this Court must read each alternative prerequisite in Section 40–10B–8(B) as an exclusive alternative such that both parents must satisfy the same prerequisite for the Act to apply.
{12} The way in which the parties frame the issue would give our courts only two options under the Act. Our courts could grant a guardianship (1) if...
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