In re Guardianship of Ashleigh R.
| Decision Date | 06 August 2002 |
| Docket Number | No. 22,647.,22,647. |
| Citation | 132 N.M. 772,55 P.3d 984 |
| Parties | In the Matter of GUARDIANSHIP OF ASHLEIGH R. and Stefanee R., Minor Children, Judith Thomas-Lott and Paul Lott, Petitioners-Appellees, v. Michelle Earles, Respondent-Appellant. |
| Court | Court of Appeals of New Mexico |
Judith Thomas-Lott, Paul Lott, Santa Clara, NM, Pro Se Appellees.
Robert F. Turner Deming, NM, for Appellant.
Certiorari Denied, No. 27,676, October 8, 2002.
{1} Mother appeals from a judgment appointing guardians for her two daughters. Mother argues that the trial court had no authority under the Probate Code to appoint guardians for the children when Mother retained the right to custody and objected to the appointment. Mother also argues that the trial court should have applied the parental rights doctrine and granted Mother custody of her daughters in the absence of an express finding that she was an unfit parent. Mother asks this Court to remand for a hearing to determine if she is currently fit to have custody. Because we agree that the trial court had no authority to appoint guardians for the girls, and could not deny Mother custody without an express finding that she was unfit or that other extraordinary circumstances existed, we reverse and remand.
{2} Mother and Father had two children, Ashleigh and Stefanee, during the course of their marriage. When the couple began to experience marital difficulties in the winter of 1997-98, the girls went to live with their maternal grandmother (Grandmother) in Santa Clara, New Mexico. The marriage ended in part due to incidents of domestic violence. As the couple's divorce was pending, Mother also moved in with Grandmother and the two girls. For the next two years, Mother moved in and out of the house, sometimes taking the girls with her, but usually leaving them in the care of Grandmother. Despite minor factual disputes, the parties essentially agree to the following timeline. In the spring and early summer of 1998, Mother moved the girls to two different towns in the Silver City area, then sent the girls to live with Grandmother again. In June, both Mother and Father signed a document granting Grandmother temporary custody. Around the same time, Mother was granted legal custody in the divorce. In July, Mother again moved into the Santa Clara house with Grandmother and the children, and stayed there until April 1999, when she moved to Levelland, Texas, with her boyfriend, Buddy. The girls joined the couple in Texas at the end of the school year. When Buddy was laid off at the end of the summer, Mother moved the girls back to Grandmother's house, and the girls again enrolled in school in Santa Clara. Mother then joined Buddy in Farmington, where he sought work in the oil and gas industry. Mother moved back in with Grandmother in November, and stayed until January, when she got her own apartment in Santa Clara. In February, Mother married Buddy, and at the end of March she returned to Farmington. About two weeks later, Mother and Buddy had moved to Tucson, Arizona, leaving the girls with Grandmother.
{3} Grandmother married Paul Lott in March 2000. In May, the couple jointly filed a petition for guardianship of the two girls. Although Paul Lott is not the biological grandparent of the children, for simplicity we will refer to Petitioners as "Grandparents." Although the parties dispute the specific course of events, all acknowledge that Mother began asking Grandmother to return the girls to her custody sometime in the late spring or early summer of 2000. Mother testified that she contacted the Human Services Department and asked how she could regain custody. Grandmother testified that Mother sent two letters in June asking that the children be returned to her. In July 2000, Mother arrived at Grandmother's house with a police escort. The police refused to help Mother regain custody at that time, however, because Mother had arrived after midnight. Grandmother telephoned a social worker, who advised the officers that it would harm the children to allow Mother to take them away in the middle of the night. Mother did not file a petition for habeas corpus, but responded to Grandmother's petition for guardianship, indicating that she objected to the guardianship and wanted custody returned to her. Father also responded, acknowledging that he was not in a position to take custody of the girls, but indicating that he did not want his parental rights terminated. {4} Grandparents initially sought to modify the award of custody to Mother within the divorce decree, then amended their petition to seek guardianship under the Probate Code, NMSA 1978, § 45-5-204(A) (1995). That statute authorizes the appointment of guardians for children whose parents are deceased or whose parental rights have been terminated or suspended by court order, or have been "suspended by circumstances." Id. Grandparents also sought a restraining order allowing them to maintain custody while the proceedings were pending and allowing Mother only supervised visitation. The trial court granted the restraining order in August 2000. The court held a hearing on the petition in December 2000, but was unable to take all testimony and continued the matter until June 2001. In the meantime, Mother was allowed unsupervised visitation. The girls visited Mother in Tucson during Christmas. Mother was subsequently involved in a car accident in which she injured her wrist and her car sustained significant damage. As a result, Mother did not visit the girls in Santa Clara during the following months. Mother's attorney scheduled a bonding study, but Grandparents failed to bring the girls to Tucson at the scheduled time. The court then completed its evidentiary hearing in June, asking the parties to submit requested findings of fact and conclusions of law and to submit the report from the bonding study when it was completed. The record does not show that a bonding study was ever done or that a report was ever filed. The trial court entered an order naming Grandparents as guardians in June 2001. Mother then brought this appeal. Father did not appeal the judgment.
{5} The issue on appeal is whether the trial court had the statutory authority to name Grandparents as guardians despite Mother's objections. The Probate Code authorizes court appointment of guardians for children "if all parental rights of custody have been terminated or suspended by circumstances or prior court order." Section 45-5-204(A). The trial court found that both parents' right to custody had been "suspended by circumstance[s]." We have construed this specific language in two prior cases. See In re Guardianship of Sabrina Mae D., 114 N.M. 133, 139, 835 P.2d 849, 855 (Ct.App. 1992)
; In re Guardianship Petition of Lupe C., 112 N.M. 116, 120, 812 P.2d 365, 369 (Ct.App.1991). Lupe C. also involved an intrafamily custody dispute. In that case the district court also found that the mother's rights had been "suspended by circumstances" because the mother was unable to provide a fit and suitable home or the necessary emotional support and guidance. Id. at 118, 812 P.2d at 367. We reversed the judgment and returned custody to the mother. Id. at 122, 812 P.2d at 371. We explained that courts have limited authority to appoint a guardian for a minor under the Probate Code. Id. at 119-20, 812 P.2d at 368-69. We held that a parent's custodial rights have been "suspended by circumstances" only when (1) the parent consents to the appointment of a guardian or (2) the parent's whereabouts are unknown. Id. at 120, 812 P.2d at 369. Because the mother in Lupe C. objected to the proceedings and her whereabouts were known, we held that the district court had no authority under the Probate Code to appoint a guardian. Id.
{6} In Sabrina Mae D., the grandparents filed a petition seeking guardianship of a child after the mother had voluntarily sent the child to live with the grandparents, but then changed her mind and took the child back to California with her. See Sabrina Mae D., 114 N.M. at 135, 835 P.2d at 851. Again, the mother objected. See id. We held that the grandparents could not seek guardianship under the Probate Code, explaining that a guardianship proceeding is not the proper means to involuntarily terminate a parent's right to custody of his or her children. Id. at 114 N.M. at 139, 835 P.2d at 855.
{7} Grandparents argue that the holdings of Lupe C. and Sabrina Mae D. apply only when a child is in the parent's physical custody at the time the proceedings begin. Because they were caring for the two girls at the time they filed their petition, Grandparents argue that they should be able to seek guardianship under the Probate Code. In support of this argument, Grandparents cite language from Lupe C. indicating that the Probate Code cannot be used to remove custody from a parent "where the parent in fact is invested with and is currently exercising custody of the child." Lupe C.,112 N.M. at 122,812 P.2d at 371 (emphasis added). They argue that the district court does have authority to find that a parent's custodial rights have been "suspended by circumstances" when a parent voluntarily relinquishes custody of the child.
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