Guardianship of Sabrina Mae D., In re, 13347

• Decision Date: 30 April 1992
• Docket Number: No. 13347,13347
• Citation: 835 P.2d 849,1992 NMCA 50,114 N.M. 133
• Parties: In re GUARDIANSHIP OF SABRINA MAE D., Petitioner-Appellant.
• Court: Court of Appeals of New Mexico

Page 849

835 P.2d 849

114 N.M. 133

In re GUARDIANSHIP OF SABRINA MAE D., Petitioner-Appellant.

No. 13347.

Court of Appeals of New Mexico.

April 30, 1992.

Certiorari Denied June 3, 1992.

[114 N.M. 134] Joel Jasperse, Northern New Mexico Legal Services, Gallup, for petitioner-appellant.

Gary Fernandez, Grants, for respondents-appellees.

OPINION

DONNELLY, Judge.

Petitioner appeals from an order denying her petition for a writ of habeas corpus to obtain custody of her nine-year-old daughter, and granting Petitioner's father and stepmother's (Grandparents) counterclaim for guardianship of the child. We discuss: (1) whether the district court's 1988 order appointing Grandparents guardians of the child was void for lack of jurisdiction; and (2) whether the district court had jurisdiction in the instant case to continue custody of the child in Grandparents and to appoint them as guardians. We reverse and remand for further proceedings consistent with this opinion.

FACTS

Petitioner, a resident of California, contacted Grandparents in 1988 and arranged for her daughter to stay with them in New Mexico. Petitioner informed Grandparents that she believed the police were investigating her for the possession or sale of drugs. The child was sent to New Mexico on August 15, 1988. Shortly after the child's arrival, Grandparents filed a petition (Cause No. CB-88-19-PB) on September 23, 1988, with the district court in Cibola County requesting that they be appointed as guardians of the child, and alleging that they were unable to locate Petitioner at any known address and that service by publication "would not serve * * * the interest of [Grandparents or Petitioner in notifying] * * * mother of this action." No copy of the petition or summons in the action was served upon Petitioner.

At the time of filing the petition in the 1988 action, Grandparents attached an undated document signed by Petitioner authorizing them "to sign any papers for medical reasons." This document contained an address for Petitioner and a telephone number. Grandparents obtained an order appointing them as guardians of the child on the same day their petition was filed. On September 27, 1988, Petitioner mailed a document to Grandparents which stated that she was giving them temporary custody of her daughter "until further written agreement." No subsequent written consent to custody of the child was given by Petitioner.

On June 10, 1989, Petitioner came to New Mexico, obtained the child, and returned with her to California. Grandfather testified that Petitioner stated that she was going to take the child on a vacation and that thereafter they could pick up the child in California and return with her to New Mexico. After returning to California, however, Petitioner failed to relinquish custody of the child to Grandparents or make any effort to contact them. On September 12, 1989, Grandparents petitioned the California Superior Court for custody of the child based upon the 1988 order of guardianship issued by the New Mexico court. Pursuant to an order of the California Superior Court, Grandparents obtained physical custody of the child the following day and returned with her to New Mexico.

On February 12, 1990, Petitioner filed a petition for writ of habeas corpus in the present case to obtain custody of the child. Grandparents responded by filing an answer and a counterclaim denying Petitioner's right to custody, alleging that she was unfit, and requesting that they be appointed guardians of the child. At the hearing on the merits, Grandfather testified, among other things, that the child's natural father was deceased; that Petitioner frequently changed her place of residence; and that she had previously used controlled substances. Grandparents also introduced evidence that prior to the time the child had been sent to stay with them, the child had been abused and neglected while in Petitioner's custody; that the child was underweight and in need of medical and psychological care; and that the child had been sexually abused by Petitioner's boyfriend, and that such abuse and neglect would in all likelihood continue if the child was returned to Petitioner.

At the conclusion of the hearing, the district court adopted findings of fact and conclusions of law, and entered a judgment denying Petitioner's petition for writ of habeas corpus and granting Grandparents' counterclaim for guardianship of the child. In adopting its findings, the court found that it had personal jurisdiction over Petitioner and the child; that the court had subject matter jurisdiction to hear Grandparents' counterclaim for guardianship in the instant case; that Petitioner had consented to the 1988 guardianship petition by Grandparents; that the child had been abandoned, abused, and neglected and would continue to be abused if returned to Petitioner's custody; and that it was in the child's best interests that she remain in the custody of Grandparents. Based upon its findings and conclusions, the court entered an amended judgment denying Petitioner's petition for writ of habeas corpus and granting Grandparents' counterclaim for guardianship.

DISCUSSION

Petitioner's arguments asserted on appeal are interrelated. She contends that the order appointing Grandparents guardians of her daughter in 1988 was void because Grandparents failed to obtain service upon her. She also argues that because the New Mexico court did not have jurisdiction in Cause No. CB-88-19-PB to appoint Grandparents as guardians of the child, the order appointing them as guardians in that case was improperly used by Grandparents in California to regain custody of the child. She further asserts that the district court in the present case abused its discretion in refusing to dismiss Grandparents' counterclaim for appointment as guardians because the court's decision in this case relied in part on the mistaken assumption that the prior 1988 guardianship order was valid. Petitioner additionally argues that the district court in the present case erred in failing to find that under Section 40-10-9 of the New Mexico Child Custody Jurisdiction Act (CCJA), NMSA 1978, Secs. 40-10-1 to -24 (Repl.Pamp.1989), California was the home state of the child.

I. Was the 1988 Guardianship Order Valid?

Petitioner claims that the district court in the instant case erred in failing to return custody of the child to her and in issuing its order appointing Grandparents as guardians of the child because the 1988 guardianship proceeding was void. Petitioner primarily argues that the district court in the 1988 proceeding lacked jurisdiction because she did not receive proper service notifying her of the action. Grandparents claim that the district court in both New Mexico proceedings had jurisdiction over the child and Petitioner under the CCJA.

It is undisputed that Petitioner was never served with notice of the pendency of the guardianship proceedings in the 1988 action prior to the issuance of the order appointing Grandparents as guardians. We agree that because Grandparents failed to obtain proper service upon Petitioner in the initial guardianship proceeding, or to obtain her valid written entry of appearance or waiver of service in such action, Petitioner was not precluded from challenging the validity of the 1988 guardianship decree. A guardianship action which deprives a parent of custody of a minor child without notice and opportunity to be heard does not bar the parent from challenging such order and asserting his or her right to custody. See Guardianship of Debbie V., 182 Cal.App.3d 781, 227 Cal.Rptr. 554 (1986); Ex parte Englebert, 70 S.D. 467, 18 N.W.2d 794 (1945). See generally J. Sherman, Annotation, Right of Parent to Notice and Hearing Before Being Deprived of Custody of Child, 76 A.L.R. 242 (1932).

Section 40-10-5 of the CCJA provides:

Before making a decree under the Child Custody Jurisdiction Act, reasonable notice and opportunity to be heard shall be given to ... any parent whose parental rights have not been previously terminated and any person who has physical custody of the child. If any of these persons are outside New Mexico, notice and opportunity to be heard shall be given pursuant to Section [40-10-6]....

Section 40-10-6(A) of the CCJA also specifies that "[n]otice required for the exercise of jurisdiction over a person outside New Mexico shall be given in a manner reasonably calculated to give actual notice * * *." (Emphasis added.) We think it is clear that where jurisdiction is sought to be established under the CCJA, a petitioner must obtain service upon the other parties entitled to such notice by affirmatively undertaking to give notice and obtain service upon other interested parties as contemplated by Section 40-10-6. Grandparents failed to comply with the provisions of Section 40-10-6 prior to obtaining appointment as guardians in the 1988 proceeding.

Similarly, we also agree with Petitioner that service of process was not made in the 1988 proceeding upon her as required by the Probate Code. NMSA 1978, Section 45-5-207(A)(3) (Repl.Pamp.1989) requires that notice to a living parent "is to be given by the petitioner in the manner prescribed by Section [45-1-401]." NMSA 1978, Section 45-1-401(A) (Repl.Pamp.1989) authorizes notice to be given by certified, registered, or ordinary first class mail; in the manner authorized by the Rules of Civil Procedure for service of summons and complaint in civil actions; or by publication if the address of the party to be served cannot be ascertained with reasonable diligence. Grandparents claim that they could not serve Petitioner because she did not provide them with a current address. However, it is undisputed that the document given to Grandparents authorizing them to sign papers for medical reasons included Petitioner's address and telephone number, and Grandparents made no attempt to notify Petitioner in any way, including publication.

Grandparents...