Huey v. Lente

• Decision Date: 20 June 1973
• Docket Number: No. 1058,1058
• Citation: 85 N.M. 585,514 P.2d 1081,1973 NMCA 93
• Parties: Gerald HUEY and Bonnie Huey, Applicants-Appellees, v. Mary C. LENTE, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

Page 1081

514 P.2d 1081

85 N.M. 585

Gerald HUEY and Bonnie Huey, Applicants-Appellees, v. Mary C. LENTE, Respondent-Appellant.

No. 1058.

Court of Appeals of New Mexico.

June 20, 1973.

Certiorari Granted July 18, 1973.

Stevan Schoen, Albuquerque, for respondent-appellant

Marc Prelo, Jr., Harold B. Albert, Ahern, Montgomery & Albert, Albuquerque, for applicants-appellees.

OPINION

SUTIN, Judge.

This appeal involves termination of parental rights of a mother to her four year old son, pursuant to § 22--2--23, N.M.S.A.1953 (Vol. 5, Supp.1971). 'Termination of Parental Rights' is § 4 of the 1971 'Adoption Act.'

The trial court terminated the mother's rights to her son, and she appeals.

We reverse.

(1) Section 22--2--23, supra, Entitled 'Termination of Parental Rights' is Invalid.

At the opening of trial, a serious discussion between the trial court and counsel arose over the meaning and effect of the judgment provision of 'Termination of Parental Rights.' Section 22--2--23 provides for, (A) causes of termination; (B) who may initiate termination (hereinafter called 'initiator'); (C) the contents of the application; (D) the time and place for hearing, and notice thereof with a copy of the application to be given to the parents of the minor, and then (E) the provisions for judgment. Subsection E reads as follows:

E. The court after hearing may grant or deny a judgment terminating parental rights. A judgment of the court terminating parental rights has the same effect as an adoption judgment has in terminating the parent-child relationship, including terminating parental rights, dispensing with the consent, and with any required notice of an adoption proceeding of a parent whose relationship is terminated by the judgment. (Emphasis added)

' The same effect' means the same result or the same consequences, Taylor v. Midland Valley R. Co., 197 F. 323 (D.Okl. (1912), as that provided for in § 22--2--33(A), supra, entitled 'Effect of Judgment of Adoption . . .'

Subsection (A) provides in part:

A judgment of adoption . . . has the following effect as to matters within the jurisdiction or before the court:

(1) to relieve the natural parents of all parental rights and responsibilities; and

(2) to create the relationship of parent and child between the petitioner and the individual to be adopted, as if the individual adopted were a legitimate blood descendant of the petitioner for all purposes . . .. (Emphasis added)

'Termination of Parental Rights,' therefore, not only relieves 'the natural parents of all parental rights and responsibilities,' but it also creates 'the relationship of parent and child between the (initiator) and the individual to be adopted, . . . dispensing with the consent, and with any required notice of an adoption proceeding . . ..' (Emphasis added)

The trial court believed termination meant 'the child has no parents.' The mother's attorney believed 'this child is in limbo.' Huey's attorney believed 'that once the court spoke then we could fortherwith bring our adoption petition.' We are confronted with the usual statutory problems which arise under tangled, mixed-up language. Although no similar legislation has been cited to assist in statutory construction, we have found none with language similar to that set forth under § 22--2--23(E), supra.

'Termination of Parental Rights' statutes are an innovation in New Mexico. A model termination act was drafted by the Children's Bureau, United States Department of Health, Education and Welfare. See, Katz, Judicial and Statutory Trends in the Law of Adoption, 51 Georgetown L.J. 64 (1962). For other states which have set up statutory procedures to terminate parental rights to a child, see, Ritz, Termination of Parental Rights to Free Child for Adoption, 32 N.Y.U.L.J. 579, 590 (1957).

In 1970, Arizona adopted statutory authority for 'Termination of Parent-Child Relationship.' Section 8--531 to 8--537, Arizona Revised Statutes, Supplement 1972. It appears to follow the Model Termination Act. This statute creates a bifurcated proceeding for termination and adoption. Upon termination the juvenile court must: '1. Appoint an individual as guardian of the child's person;' or '2. Appoint an individual as guardian of the child's person and vest legal custody in another individual or in an authorized agency.'

The purpose of this bifurcated proceeding is 'to reduce, if not completely eliminate, contested adoption.' Frondorf and Harper, Arizona's New Face of Adoption, A.S.U.L.J., 1972, No. 1, 127 at 149.

The New Mexico statute on 'Termination of Parental Rights' is not a bifurcated proceeding. It does not provide for disposition of the child's custody prior to an adoption proceeding. It appears to be, in effect, an adoption proceeding within an adoption statute. Its interpretation was confusing in the court below. It is vague, indefinite, impractical, and unrealistic in this court.

Section 22--2--23, supra, is invalid for the following reasons:

First: The purpose of this section was to terminate parental rights with respect to a minor child. It was not intended to create a parent-child relationship between the 'initiator' of the application and the minor child. This adoptive parent-child relationship is the purpose of the adoption statute. By declaring 'Termination' to be 'adoption,' the statute forces the natural parents and the adoptive parents to endure the pains of a contested adoption by 'initiators' not allowed to adopt a minor child.

The 'initiator' of the application for termination of parental rights is not a person who may adopt under § 22--2--24, supra, of the 'Adoption Act.'

An 'initiator' under § 22--2--23(B)(2), (3), supra, may be 'the custodian of a minor' or 'an agency.'

The 'custodian' is defined as '. . . a person having custody of an individual, a guardian of the person of an individual, and a guardian ad litem for an individual;' Section 22--2--21(J), N.M.S.A.1953 (Vol. 5, Supp.1971).

'An agency' is defined as 'any person certified, licensed or otherwise specially empowered by law to place minors for adoption.' Section 22--2--21(C), supra.

It is obvious that such 'initiators' are not allowed by law to terminate a natural parent's rights in order to create an artificial adoptive parent-child relationship. The 'initiators' are allowed only to seek termination.

The vague and indefinite language of the statute makes § 22--2--23, supra, unconstitutional. State v. Prince, 52 N.M. 15, 189 P.2d 993 (1948). A person seeking 'termination of parental rights' should know whether such proceeding results in adoption. State v. McMaster, 259 Or. 291, 486 P.2d 567, 576 (Or.1971) (concurring opinion).

Second: Section 22--2--23, supra, sets forth three reasons under which the court can terminate parental rights. Termination is the only issue in the proceedings. The qualification of the 'initiator' is not an issue. Any unfit person in actual physical custody of a minor child, can initiate proceedings to terminate a mother's right to her own son. If successful, the 'initiator' becomes the parent of the child.

Third: Section 22--2--23, supra, provides for a judgment by adoption without consent of the parents. 'Parental rights' is defined as '.. . all rights of a parent with reference to a minor, including parental right to control, or to withhold consent to an adoption, or to receive notice of a hearing on a petition for adoption;' (Emphasis added) Section 22--2--21(I), supra. Consent is at the very foundation of adoption statutes. Before the trial court can consider the merits of an adoption proceeding, the court must first determine whether the consent of the parent has been given or dispensed with. Nevelos v. Railston, 65 N.M. 250, 335 P.2d 573 (1959).

A statute which deprives a parent permanently of his child without consent, or without notice or opportunity to be heard, is void as an unconstitutional deprivation of right without due process of law. In re Mayernik, 292 S.W.2d 562 (Mo.1956); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). See, Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). In re Adoption of K., 417 S.W.2d 702, 709 (Mo.App.1967); Annot. 45 A.L.R.2d 1379, 1380 (1956). In re Adoption of K. said:

Adoption involves the dissolution of a constitutionally protected relationship, and unless the parents consent, or there is a substantial showing of some condition dispensing with the necessity of consent, the court has no power to enter a decree of adoption. Adoption may not be decreed simply to enhance the moral and temporal welfare of the child.

Fourth: The judgment of the trial court reads:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the parental rights of Respondent . . . to the minor child . . . be and they are hereby terminated.

Under this judgment, the sole question was whether the facts warrant the court in completely severing all ties between the mother and her son. The welfare of the child is not controlling.

'Effect of Judgment of Adoption' was not included in the judgment. This is a clear indication that § 22--2--23 is vague, indefinite and uncertain. The child has been placed in limbo, without natural or adoptive parents, and without custody or guardianship. It denies the child the possibility of being placed in a new home and becoming part of a family. For many years, he may be cared for in an institution or be transferred from foster home to foster home. The judgment against respondent is a violation of the due process clause of Art. II, § 18 of the Constitution of New Mexico. See, Robinson v. State, 34 N.M. 557, 287 P. 288 (1930); Annot. 76 A.L.R. 662.

Furthermore, if § 22--2--23 is only a statutory proceeding for 'Terminating Parental Rights,' and not an 'Adoption,' it does not come within the scope of the title of the Act and violates Art. IV, § 16 of the New Mexico Constitution.

Other reasons could be stated which declare § 22--2--23, supra, invalid. We do not...