Lucero v. Hart

• Decision Date: 19 September 1995
• Docket Number: No. 16173,16173
• Citation: 1995 NMCA 121,120 N.M. 794,907 P.2d 198
• Parties: Tonnie LUCERO, Petitioner-Appellee, v. Emmanuel HART and Kimberly Thompson, Respondents-Appellants.
• Court: Court of Appeals of New Mexico

Page 198

907 P.2d 198

120 N.M. 794

Tonnie LUCERO, Petitioner-Appellee, v. Emmanuel HART and Kimberly Thompson, Respondents-Appellants.

No. 16173.

Court of Appeals of New Mexico.

Sept. 19, 1995.

[120 N.M. 796] Charles B. Sanchez, Belen, for Respondent-Appellant Kimberly Thompson.

Steven J. Clark, Peralta, for Petitioner-Appellee.

OPINION

DONNELLY, Judge.

Appellant, Kimberly Thompson (Mother), appeals from an order granting visitation to Appellee, Tonnie Lucero (Grandmother), the paternal grandmother of A.H., a four-year-old child. Mother's appeal poses three issues: (1) whether the trial court had jurisdiction to authorize grandparent visitation when no order adjudicating the identity of the father of the child was ever entered, (2) whether the trial court had jurisdiction to order grandparent visitation when Grandmother's son had previously relinquished his parental rights, and (3) whether the trial court abused its discretion in granting Grandmother visitation. For the reasons discussed herein, we reverse.

FACTS

Mother and Emmanuel Hart (Father) had a five-year relationship. They were never married. During that time, Mother became pregnant. Their son, A.H., was born on June 14, 1991. Father acknowledged paternity of A.H. and was named as the child's father on the birth certificate. Mother and Father separated shortly after A.H.'s birth. On August 13, 1991, Mother filed a petition seeking a time-sharing and parenting plan, the payment of child support, and a permanent restraining order against Father enjoining him from contacting or harassing both her and her family. In the petition, Mother alleged that Father "has harassed [her] both verbally and mentally, as well as [her] family." Mother and Father agreed to mediation of the matter and entered into a temporary agreement on October 16, 1991, regarding custody, child support, and the payment of medical expenses. Under the agreement, Mother was awarded sole custody of A.H. Approximately one year later, on October 15, 1992, Father voluntarily relinquished his parental rights to A.H.

On April 8, 1994, Grandmother filed a petition to establish the paternity of A.H. and for the award of reasonable grandparent visitation rights. Mother objected to any award of visitation. However, following an evidentiary hearing the trial court granted limited grandparent visitation. The trial court found, among other things, that Grandmother had some contact with A.H. until he was six months old, and that after Father's relinquishment of parental rights, A.H. had no relationship with members of the paternal side of his family. The trial court concluded that it was in the child's best interests to award a right of visitation to Grandmother, and that she should "be given the opportunity to re-establish a relationship with her grandson." Apparently, because of the past history of animosity between Grandmother and Mother, the trial court's order limited Grandmother's visitation to two hours a week, ordered that the "parties shall have no contact during [Grandmother's] visitation," and also ordered that neither party disparage the other in A.H.'s presence.

JURISDICTION

We first consider Mother's argument that the trial court lacked jurisdiction to grant Grandmother's visitation petition because a court order had never been entered declaring Father to be A.H.'s father. Although we agree with Mother that an integral element of proof underlying a request for visitation under the Grandparent's Visitation Privileges Act, NMSA 1978, Sections 40-9-1 to 40-9-4 (Repl.Pamp.1994), is a showing that the petitioner is either by blood, marriage, or adoption a grandparent of the child in question, our examination of the record in the instant case shows that Grandmother satisfied this requirement.

Under the Grandparent's Visitation Privileges Act, a trial court may grant visitation privileges in the rendering of a judgment as to the existence of a parent-child relationship pursuant to the Uniform Parentage Act, NMSA 1978, Sections 40-11-1 to 40-11-23 (Repl.Pamp.1994). Section 40-9-2(A). Under the Uniform Parentage Act, paternity may be presumed when a man: (1) acknowledges his paternity in a writing filed with the vital statistics bureau of the department of health; (2) is voluntarily named as the child's father on the birth certificate; or (3) is obligated to support the child under a written voluntary promise or by court order. Section 40-11-5(A)(3)(a)-(c). Here, the record shows that both Mother and Father acknowledged that Father was, in fact, the natural father of A.H. See In re Paternity of JRW, 814 P.2d 1256, 1260 (Wyo.1991) (former husband presumed father where he was named on birth certificate and made voluntarily promise to pay child support). Moreover, following the evidentiary hearing on the petition for grandparent visitation, Mother submitted a requested finding of fact stating that the biological father of A.H. is Grandmother's son. The trial court adopted a finding that Father was A.H.'s biological father, and this finding is supported by substantial evidence. Cf. Division of Child Support Enforcement ex rel. Blake v. Myrks, 606 A.2d 748, 752 (Del.1992) (father who admitted paternity at original support hearing barred from denying it at support modification hearing). Under these circumstances, Grandmother has presented sufficient evidence showing that her son is the natural father of A.H. and has satisfied a threshold requirement of the Grandparent's Visitation Privileges Act entitling her to seek an award of grandparent visitation.

Alternatively, Mother, relying on Christian Placement Service, New Mexico Christian Children's Home v. Gordon, 102 N.M. 465, 470, 697 P.2d 148, 153 (Ct.App.1985), argues that the trial court was without jurisdiction to award grandparent visitation here because Father's parental rights had been terminated. She argues that Grandmother's rights were derivative of those of the father and that termination of Father's parental rights effectively cut off any legal rights or standing she previously possessed which would have entitled her to apply for visitation. The Court in Christian Placement Service held that statutory grandparent visitation rights do not apply in adoption proceedings after the termination of the rights of the natural parents. Id. at 470, 697 P.2d at 153. However, Christian Placement Service is not controlling here. That case was decided prior to the 1993 repeal of the former grandparent visitation statute and the enactment of the present Act which materially revised the law. See Catherine Bostock, Does the Expansion of Grandparent Visitation Rights Promote the Best Interests of the Child?: A Survey of Grandparent Visitation Laws in the Fifty States, 27 Colum. J.L. & Soc. Probs. 319, 347 n. 138 (1994).

Section 40-9-2(E) of the Grandparent's Visitation Privileges Act now expressly permits a biological grandparent to petition for grandparent visitation when a grandchild has been adopted or is sought to be adopted by a stepparent, a relative of the grandchild, a person designated to care for the grandchild under the provisions of a deceased parent's will, or a person who sponsored the grandchild at a baptism or confirmation conducted by a recognized religious organization. In addition, Section 40-9-2(F) provides in part that "[w]hen a minor child is adopted by a stepparent and the parental rights of the natural parent terminate or are relinquished, the biological grandparents are not precluded from attempting to establish visitation privileges." (Emphasis added.) Section 40-9-2(F) further provides that when a petition for grandparent visitation

is filed during the pendency of an adoption proceeding, the petition shall be filed as part of the adoption proceedings [and the] provisions of the Grandparent's Visitation Privileges Act shall have no application in the event of a relinquishment or termination of parental rights in cases of other statutory adoption proceedings.

Viewing Sections 40-9-1 to 40-9-4 of the Grandparent's Visitation Privileges Act in their entirety, we think it is clear that our legislature in enacting the new legislation intended to modify prior law so as to extend the right of grandparent visitation in proper cases, except where expressly precluded by statute. See Bostock, supra, at 341 (there has been a trend toward expanding such rights and fewer states continue to make grandparent visitation rights derivative of parental rights). See generally State ex rel. Bird v. Apodaca, 91 N.M. 279, 284, 573 P.2d 213, 218 (1977) (when legislature enacts new law it is presumed to have intended to change prior law).

Pennsylvania and Indiana have enacted legislation similar to New Mexico's provision for grandparent visitation in the event of stepparent adoption. See In re Groleau, 585 N.E.2d 726, 728 (Ind.Ct.App.1992); Rigler v. Treen, 442 Pa.Super. 533, 660 A.2d 111, 113 (1995). In construing such statutes, the courts in Indiana and Pennsylvania have upheld the right of grandparent visitation in certain instances, despite the termination of parental rights. In Groleau the court held that it would presume the legislature intended the language of a statute to be applied logically, and the mere fact that a parent agreed to the termination of his or her parental rights would not automatically extinguish the visitation rights of the grandparents. Groleau, 585 N.E.2d at 728. Similarly, in Rigler, the Pennsylvania court held that "[s]ince the grandparents' rights survive such an adoption [by a stepparent], it follows that the termination of the biological parent's rights alone does not cut off visitation rights of the biological grandparents." Rigler, 442 Pa.Super. 533, 660 A.2d at 113; accord Colorado ex rel. N.S., 821 P.2d 931, 932 (Colo.Ct.App.1991) ("Grandparent visitation rights are derived from statute and are not contingent on the continuation of the parent-child legal relationship.").

In enacting the Grandparent's...