Kira M., Matter of, 14446

• Decision Date: 08 September 1993
• Docket Number: No. 14446,14446
• Parties: In the Matter of KIRA M., a child. State of New Mexico ex rel. Human Services Department, Petitioner-Appellee, and concerning Michelle B., Respondent-Appellant, and James M., Respondent.
• Court: Court of Appeals of New Mexico

Page 803

864 P.2d 803

116 N.M. 514

In the Matter of KIRA M., a child State of New Mexico ex rel. Human Services Department Petitioner-Appellee and concerning Michelle B., Respondent-Appellant and James M., Respondent.

No. 14446.

Court of Appeals of New Mexico.

Sept. 8, 1993.

Certiorari Granted Nov. 23, 1993.

Tom Udall, Atty. Gen., Judith A. Ferrell, Sp. Asst. Atty. Gen., Santa Fe, for petitioner-appellee.

Richard J. Grodner, Albuquerque, for respondent-appellant Michelle B.

OPINION

APODACA, Judge.

Mother appeals the children's court's denial of her motion to revoke her relinquishment of parental rights and consent to adoption and the court's granting summary judgment to the Human Services Department (HSD). The issue presented to us is whether a relinquishment of parental rights and consent to adoption can be withdrawn on the grounds that it was involuntary. Because we hold that Mother has alleged facts sufficient to raise an issue concerning the voluntariness of her consent, we reverse and remand for an evidentiary hearing on Mother's claim that her relinquishment of parental rights and consent to adoption was involuntary. In light of our disposition, we need not reach Mother's issue of whether NMSA 1978, Section 40-7-38(F) (Repl.Pamp.1989), violates Mother's constitutional rights to due process. See Huey v. Lente, 85 N.M. 597, 598, 514 P.2d 1093, 1094 (1973) (constitutional questions decided only if necessary to the disposition of the case).

FACTS

In August 1991, HSD filed a petition alleging that Kira, Mother's nine-year-old daughter, was a neglected and abused child. The petition requested custody of Kira and named Mother and James M., Kira's biological father, as respondents. On August 30, 1991, after a hearing, Mother stipulated to an order continuing custody of Kira with HSD, which placed Kira with a foster parent.

In November 1991, a social worker employed by HSD counseled Mother regarding her alternatives to relinquishing her parental rights to Kira. The record shows that the counseling included discussion of the meaning and consequences of voluntary relinquishment; alternatives to voluntary relinquishment; parental preferences for adoptive placement; and whether Mother was voluntarily deciding to relinquish her parental rights to Kira. Later, a hearing was held, at which the children's court asked Mother whether she was voluntarily relinquishing her parental rights. Mother stated that she was voluntarily relinquishing such rights, without coercion or threats. After a lengthy inquiry, the children's court found that Mother was signing the relinquishment voluntarily, knowingly, and intelligently. Mother signed the relinquishment in the presence of the court, which certified the document.

In May 1992, Mother filed a motion to revoke or withdraw her relinquishment of parental rights. She alleged that she signed the relinquishment "under threats from her husband [Stepfather], at the time, which overrode her own free will and desire." Stepfather allegedly threatened to prevent Mother from ever seeing her other child again if Mother did not relinquish her parental rights to Kira. Because of Stepfather's personality and previous hostile acts, Mother said she believed that he would carry out his threats if she didn't do what he demanded. At the time the motion was filed, no adoption petition had been filed.

HSD later filed a motion to dismiss Mother's motion or for summary judgment on the grounds that, under Section 40-7-38(F), the sole basis for withdrawing a relinquishment of parental rights was fraud and Mother did not allege fraud. HSD further asserted that, even if duress was a proper ground for setting aside a relinquishment, the duress alleged by Mother was insufficient to support withdrawal of her relinquishment. No evidence, other than Mother's affidavit alleging the threats, was presented or considered. The children's court granted HSD's motion and denied Mother's withdrawal motion on the grounds that there was "no genuine issue of material fact and this matter can be decided as a matter of law," and "[t]here is no sufficient basis to void the relinquishment."

DISCUSSION

This appeal involves the interplay of two subsections of NMSA 1978, Section 40-7-38 (Repl.Pamp.1989). On the one hand, Section 40-7-38(A)(4) requires a relinquishment of parental rights to state "that the person executing the consent or relinquishment has been counseled regarding alternatives to adoptive placement and with this knowledge is voluntarily and unequivocally consenting to the adoption of the named adoptee." Section 40-7-38(F), on the other hand, states:

A consent to or relinquishment for adoption shall not be withdrawn prior to the entry of a judgment of adoption unless the court finds, after notice and opportunity to be heard is afforded to the petitioner, to the person seeking the withdrawal and to the agency placing a minor for adoption, that the consent or relinquishment was obtained by fraud. In no event shall a consent or relinquishment be withdrawn after the entry of a final decree of adoption.

The issue raised by Mother requires us to apply pertinent rules of statutory interpretation. In construing a statute, this Court's primary concern is to ascertain and give effect to the legislature's intent. State ex rel. Klineline v. Blackhurst, 106 N.M. 732, 735, 749 P.2d 1111, 1114 (1988). To achieve this, we read the legislation in its entirety and "construe each part in connection with every other part to produce a harmonious whole." Id. If possible, we give effect to each portion of the statute. Methola v. County of Eddy, 95 N.M. 329, 333, 622 P.2d 234, 238 (1980). Unless the legislature indicates otherwise, we give the words of the statute their ordinary meaning. Klineline, 106 N.M. at 735, 749 P.2d at 1114.

HSD contends that Section 40-7-38 is unambiguous and should be applied as written. See Johnson v. Francke, 105 N.M. 564, 566, 734 P.2d 804, 806 (Ct.App.1987). HSD also argues that strictly interpreting the statute as allowing only one ground for revocation of a relinquishment of parental rights--fraud--would promote the intent of the legislature to promote the child's best interests and welfare while protecting the biological parents' rights. See Barwin v. Reidy, 62 N.M. 183, 307 P.2d 175 (1957); In re Adoption of Bradfield, 97 N.M. 611, 614, 642 P.2d 214, 217 (Ct.App.1982). HSD views Section 40-7-38 as establishing a two-step process. In the first stage, the biological parent's rights are protected by providing a procedure in which the biological parent is counseled regarding alternatives to adoptive placement, see Sec. 40-7-38(A), and requiring that the consent be signed before and approved by a judge or individual appointed to take consents by an agency certified or licensed to place children for adoption. See NMSA 1978, Sec. 40-7-39(A) (Repl.Pamp.1989). In the second stage, HSD argues, the focus shifts from consideration of the biological parent's rights to the protection of the child's best interests, and at this stage the legislature has determined that, in the absence of fraud, it is in the child's best interests to proceed with adoption. See In re Adoption of Doe, 87 N.M. 253, 255, 531 P.2d 1226, 1228 (Ct.App.), cert. denied, 87 N.M. 239, 531 P.2d 1212 (1975).

However, because we discern no clear legislative intent to establish such a two-step process, when reading the statute as a whole, and also discern a possible inconsistency between Section 40-7-38(A)(4) and Section 40-7-38(F), we reject HSD's contention that the statute is unambiguous. Additionally, it is not clear from the language of Section 40-7-38(F) that the subsection necessarily applies to the facts of this appeal, where no adoption petition had been filed at the time Mother filed her withdrawal motion. The subsection's references to "the entry of a judgment of adoption," to "the petitioner," and to "the agency placing a minor for adoption" could be interpreted to mean that Section 40-7-38(F) may apply only when a petition for adoption of the child is actually pending. Cf. In re TR, 777 P.2d 1106, 1116-18 (Wyo.1989) (Golden, J., dissenting) (concluding that irrevocability provision does not apply where no adoption petition has been or is likely to be filed). However, the parties do not raise this argument on appeal. We thus have assumed, without deciding, that Section 40-7-38(F) is applicable to the facts of this case. Although the fact that an adoption petition was not pending is important to our reasoning, we have followed a different path to our resolution of the issue.

HSD draws our attention to Doe, in which this Court interpreted NMSA 1953, Section 22-2-27(D) (Supp.1973), the predecessor to Section 40-7-38, as compelling the conclusion that a consent may be withdrawn only on the basis of fraud. In that case, after an adoption petition for the child was filed, the biological mother filed a motion to intervene in the adoption proceedings, attempting to withdraw her relinquishment of parental rights and consent to adoption. She contended that her consent was involuntary because it was signed within twenty-four hours of the child's birth while she was still in the hospital and emotionally upset. Doe, 87 N.M. at 254, 531 P.2d at 1227.

In response to her contention, this Court stated that:

Since the adoption of children is solely a creature of statute, unknown to the common law, it is important to note that our legislature has seen fit to provide but a single ground for the revocation of consent, namely, fraud.... Our legislature has created a presumption that once there has been a consent by the natural parent, absent fraud, it is in the best interests of the child to proceed with the adoption.

Id. at 254-55, 531 P.2d at 1227-28 (citations omitted). Doe further concluded that the specific facts alleged by the biological mother ("(1) emotional upset, (2) hospitalization and (3) timeliness after birth") were...