Helen G. v. Mark J.H.

• Decision Date: 07 September 2006
• Docket Number: No. 25,877.,25,877.
• Citation: 2006 NMCA 136,145 P.3d 98
• Parties: In the Matter of the Adoption Petition of Bobby A. Romero and Rosario Romero. Bobby A. Romero and Rosario Romero, Petitioners-Appellees HELEN G., Biological Mother-Appellee v. MARK J. H., Biological Father-Appellant.
• Court: Court of Appeals of New Mexico

145 P.3d 98

2006 NMCA 136

In the Matter of the Adoption Petition of Bobby A. Romero and Rosario Romero.

Bobby A. Romero and Rosario Romero, Petitioners-Appellees HELEN G., Biological Mother-Appellee v. MARK J. H., Biological Father-Appellant.

No. 25,877.

Court of Appeals of New Mexico.

September 7, 2006.

Certiorari Granted, No. 30,021, October 19, 2006.

Certiorari Granted, No. 30,027, October 24, 2006.

COPYRIGHT MATERIAL OMITTED

Atencio Law Office, P.C., Harold O. Atencio, Albuquerque, NM, for Appellees Adoptive Parents.

Beall & Biehler, Gregory L. Biehler, Kristin McKeever, Albuquerque, NM for Appellee Biological Mother.

Mark J.H., Edgewood, NM, Pro Se Appellant.

Children, Youth & Families Department, Rebecca J. Liggett, Paula Ganz, Santa Fe, NM, for Children, Youth & Families Department.

OPINION

FRY, Judge.

{1} Petitioners have filed a motion for rehearing, which we hereby deny. We withdraw the opinion filed July 26, 2006, and substitute this opinion in its stead.

{2} In this adoption proceeding, in which the district court terminated the biological father's parental rights, we consider under what circumstances our statutes require a biological father's consent to an adoption. Because we conclude the father's consent was required in this case, we also determine what must be shown to terminate parental rights under our presumptive abandonment statute. NMSA 1978, § 32A-5-15(B), (C) (1995). We conclude that a biological father's conduct prior to a child's birth cannot be used as a basis for finding that the father caused the disintegration of the parent-child relationship under the circumstances of this case. We further conclude that the evidence did not support the district court's finding of presumptive abandonment in this case. We therefore reverse the district court's judgment terminating the biological father's parental rights and remand for a consideration of who should have custody of the child. See In re Adoption of J.J.B., 119 N.M. 638, 651, 894 P.2d 994, 1007 (1995) (explaining that reversal of a judgment terminating parental rights in an adoption case results in a separate determination of who should have custody).

BACKGROUND

{3} The parties do not dispute the events leading to the biological mother's pregnancy. (Because the biological mother wishes to retain anonymity, we refer to her and the biological father by their first names, Helen and Mark.) Helen worked at the front desk of a hotel in Albuquerque when she met Mark, an account executive for a chemical company that delivered chemicals to the hotel. Mark helped Helen find a job at another hotel, which is where she worked at the relevant times. Mark and Helen had a sexual relationship from about January 2003 to June 2003; neither used any form of contraception. Mark and Helen ended their relationship in June 2003, and Helen gave birth to the child in February 2004. Mark and Helen had no further communication after their relationship ended, and Helen placed the baby for adoption with Petitioners Bobby Antonio R. and Rosario R. when the child was three days old.

{4} Mark testified that he did not know Helen was pregnant and did not know of the child's existence until he was notified by the adoption agency about two months after the child's birth. The district court apparently did not believe Mark because it found that Mark "knew or should have known that he fathered a child with [Helen]." The evidence supported this finding. See Vigil v. Fogerson, 2006-NMCA-010, ¶ 26, 138 N.M. 822, 126 P.3d 1186 (explaining that appellate court determines whether substantial evidence supports district court's findings, resolving all disputes in favor of the successful party). Helen testified that she told Mark twice that she might be pregnant and that he had at least one opportunity to see her when she was visibly pregnant. In addition, one of Helen's co-workers testified that Mark told the co-worker he knew Helen was pregnant but he did not know if the child was his. It is undisputed that Mark did not provide Helen with any financial support during her pregnancy.

{5} Upon receiving notice from the adoption agency, Mark immediately called the adoption agency and met with the agency's executive director the following day to determine whether he could obtain custody of the child. When he found that he could not, he hired an attorney the same day. He registered with the state's putative father registry the next day. He filed a paternity petition in April 2004 and contested the adoption petition filed by Petitioners. DNA testing established that Mark was in fact the child's biological father.

{6} At trial, Petitioners sought termination of Mark's parental rights on the ground of presumptive abandonment pursuant to Section 32A-5-15(B), (C). After hearing the evidence, the district court concluded that Mark's "actions or lack thereof with regard[ ] to the [child] has created a presumption of abandonment, which has not been rebutted." The court ordered termination of Mark's parental rights and found that it was in the child's best interests to remain with Petitioners. Mark appealed.

DISCUSSION

{7} We begin with the premise "that the relationship between parent and child is constitutionally protected." Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978). As the United States Supreme Court said in Prince v. Massachusetts, "[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944). However, the law also recognizes that a father's "mere biological relationship with [a] child [does] not warrant the same degree of constitutional protection as a developed parent-child relationship in which an unwed father demonstrates a full commitment to the responsibilities of parenthood." In re Adoption of J.J.B., 119 N.M. at 646, 894 P.2d at 1002.

{8} It is against this backdrop that we analyze the arguments of the parties in this emotionally fraught and difficult case. Our legislature has imposed a statutory framework governing the rights of parents and prospective adoptive parents, while at the same time keeping a child's best interests at the forefront. See NMSA 1978, § 32A-5-2 (1993) (stating that purpose of the Adoption Act is to establish protective and secure adoptive family relationships and to "ensure due process protections"); § 32A-5-15(A) (stating that "[t]he physical, mental and emotional welfare and needs of the child shall be the primary consideration for the termination of parental rights"). It is our task to discern and carry out the legislature's intent in enacting the statutes at issue. See State v. Lopez, 2000-NMCA-001, ¶ 3, 128 N.M. 450, 993 P.2d 767.

{9} In this opinion we address two general areas giving rise to the parties' contentions: (1) whether Mark's consent was required for the adoption of the child by Petitioners, and (2) whether the evidence supported the district court's finding that Mark presumptively abandoned the child.

1. Whether Mark's Consent Was Required

{10} The parties make various arguments regarding whether Mark was an "alleged father" or an "acknowledged father," as those terms are statutorily defined. The parties then argue, based on which label applies, whether Mark's consent was required for Petitioners' adoption of the child. Petitioners contend Mark's consent was not required.

{11} In order to put Petitioners' argument in context, it is helpful to first review the relevant provisions of the Adoption Act. In the course of this review we will address Petitioners' contentions about the meaning of the various provisions of the Act. The interpretation of statutes is a question of law that we review de novo. N.M. Dep't of Labor v. Echostar Commc'ns Corp., 2006-NMCA-047, ¶ 5, 139 N.M. 493, 134 P.3d 780, cert. granted, 2006-NMCERT-004, 139 N.M. 429, 134 P.3d 120. "The language of unambiguous [statutory] provisions must be given effect without further interpretation. Only ambiguous provisions require us to delve into the legislative purpose behind the statute." State v. Jose S., 2005-NMCA-094, ¶ 6, 138 N.M. 44, 116 P.3d 115 (citation omitted).

{12} NMSA 1978, § 32A-5-36(C) (2003) addresses the situation confronted by the district court in the present case. It provides:

C. If any person who claims to be the biological father of the adoptee has appeared before the court and filed a written petition or response seeking custody and assuming financial responsibility of the adoptee, the court shall hear evidence as to the merits of the petition. If the court determines by a preponderance of the evidence that the person is not the biological father of the adoptee or that the child was conceived through an act of rape or incest, the petition shall be dismissed and the person shall no longer be a party to the adoption. If the court determines that the person is the biological father of the adoptee, the court shall further determine whether the person qualifies as a presumed or acknowledged father whose consent is necessary for adoption, pursuant to Section 32A-5-17 NMSA 1978. If the court determines that the person is the biological father, but does not qualify as a presumed or acknowledged father, the court shall adjudicate the person's rights pursuant to the provisions of the Adoption Act.

(Emphasis added.) In this case, the district court determined that Mark is the biological father of the child; therefore, the italicized portion of the statute was applicable, and the district court had to determine whether Mark was a presumed or acknowledged father.

{13} The reason the district court had to make this determination is because the Act provides that "[c]onsent to adoption or relinquishment of parental rights to the department or an agency licensed by the state of New Mexico shall be required of ....