Matter of the Adoption Petn. of Rebecca M.

• Decision Date: 16 January 2008
• Docket Number: No. 26,675.,26,675.
• Citation: 2008 NMCA 038,178 P.3d 839
• Parties: In The Matter of the ADOPTION PETITION OF REBECCA M., Petitioner-Appellee, v. Angel A., Respondent-Appellant.
• Court: Court of Appeals of New Mexico

178 P.3d 839

2008 NMCA 038

In The Matter of the ADOPTION PETITION OF REBECCA M., Petitioner-Appellee, v. Angel A., Respondent-Appellant.

No. 26,675.

Court of Appeals of New Mexico.

January 16, 2008.

Cuddy, Kennedy, Albetta & Ives, LLP, Eleanor K. Bratton, Albuquerque, NM, for Appellee.

Rodey, Dickason, Sloan, Akin & Robb, P.A., Edward Ricco, Jocelyn Drennan, Albuquerque, NM, University of New Mexico Clinical Law Program, Michael Norwood, Supervising Attorney, Theresa Player, Supervising Attorney, Carol Suzuki, Supervising Attorney, Cristina Adams, Practicing Law Student, Michael Cardwell, Practicing Law Student, Iris Augusten, Practicing Law Student, Albuquerque, NM, for Appellant.

OPINION

CASTILLO, Judge.

{1} Respondent-Appellant (Angel) appeals the district court's denial of her motion to reopen or set aside an adoption. She raises issues regarding recusal, failure to file a petition, equitable estoppel, and exceptional circumstances. Because Angel knowingly waived the opportunity to disqualify the judge in this case, we hold that the district court judge was not required to recuse himself upon the motion made by Petitioner-Appellee (Rebecca) after the waiver. We conclude that the statute governing a petition for adoption is not jurisdictional. We also conclude that even though an actual petition was not filed, the district court had all of the information required to be in the petition and that entry of a decree of adoption was thus proper. Finally, as to Rebecca's arguments that the doctrines of estoppel and exceptional circumstances apply, our review of the evidence supports the district court's refusal to apply these doctrines in order to enlarge the one-year statute of limitations for reopening adoption decrees. Accordingly, we affirm.

I. BACKGROUND

{2} Angel and Rebecca were domestic partners. In April 1998, Angel gave birth to Child, and the three lived together for two years. In April 2000, Angel and Rebecca separated, and Angel and Child moved out of Rebecca's home. Despite the breakup, Angel and Rebecca began proceedings for Rebecca to adopt Child. Angel and Rebecca agreed that Angel would retain primary physical custody of Child.

{3} Angel was counseled by a social worker and an attorney before she signed a consent to adopt (consent) on December 21, 2000. The consent also bears the signature of the presiding district court judge in this case. Angel disputes whether the judge was present when Angel signed the consent. The consent included a clause waiving Angel's right to further notice of any adoption proceedings. Rebecca filed a request for placement order on December 18, 2000, but failed to file a petition for adoption, as required by NMSA 1978, {32A-5-26 (2003). On July 25, 2001, the district court held a hearing for entry of an adoption decree, and the decree was entered on August 3, 2001. Angel received a copy of the final decree of adoption.

{4} Angel and Child lived in Indiana until September 2002. During this time, Rebecca visited Child and communicated with Angel by phone about Child's upbringing. When Angel returned to New Mexico in September 2002, she left Child with Rebecca for four months. When Angel returned for Child in January 2003, Child was reluctant to leave Rebecca. Angel responded by limiting Rebecca's contact with Child. This response concerned Rebecca, and she filed a motion for time-sharing in the Second Judicial District in February 2003. That court entered an order requiring Angel and Rebecca to share custody of Child fifty-fifty.

{5} In response to Rebecca's motion for time-sharing, Angel filed a motion in the Thirteenth Judicial District to set aside or reopen the decree of adoption, pursuant to Rule 1-060(B) NMRA. Judge McDonald presided over this motion, and he was the same judge who had presided over the adoption. During the proceedings regarding this motion, Angel first declined to seek recusal of Judge McDonald, but she later filed a motion for recusal or disqualification. The motion was denied after a hearing. The district court also denied Angel's motion to set aside or reopen the adoption. Angel appeals the denial of the motion to set aside or reopen the adoption. Additional facts will be developed as they become relevant to our discussion.

II. DISCUSSION

A. Recusal

{6} We review recusal issues for abuse of discretion. Dawley v. La Puerta Architectural Antiques, Inc., 2003-NMCA-029, ¶ 39, 133 N.M. 389, 62 P.3d 1271. According to the Code of Judicial Conduct, a judge must recuse himself "in a proceeding in which the judge's impartiality might reasonably be questioned." Rule 21-400(A) NMRA. Rule 21-400(A) lists, not exclusively, several examples that require recusal, including "where ... the judge ... is to the judge's knowledge likely to be a material witness in the proceeding." Rule 21-400(A)(5)(d). The Code of Judicial Conduct also makes provision for the parties, upon disclosure of potential impartiality, to waive disqualification. Rule 21-400(C). If the parties agree and the judge is willing to continue, "the judge may participate in the proceeding." Id. Parties may not waive the opportunity to move for recusal in the event of "personal bias or prejudice concerning a party." Id. In this case, neither party has alleged that the judge harbored personal bias or prejudice.

{7} The judge began the February 27, 2004, hearing on Rebecca's motion to set aside the adoption by disclosing his prior involvement in the case and identifying the potential difficulties:

There is a question about the consent; at least, there's an allegation in the pleadings that the consent was not taken in my presence. I can tell you what my standard practice is. I don't have an independent recollection of this consent. But my standard practice has been in the past — and probably will not be in the future — is to have the parties come into my chambers and take the consent and sign off and date the consent after I've had an opportunity to consult with the parent who is granting the consent. Now, if some of the issues of this case require me to decide what I did in that case, it may necessitate my recusal in this matter. Now, is it the request of [Angel] and all of her counsel that I recuse myself?

Counsel for Angel responded as follows:

Your Honor, before filing this motion, we did discuss that question among us.... We decided not to make that request. But if the court feels that it would be inappropriate for the court to make the decision, then it would certainly be in the court's discretion to choose to recuse yourself; but we are not making that request.

The district court judge then clarified Angel's consent by asking, "So you're willing to accept my decision on the issue of the consent?" Counsel for Angel agreed to accept the decision "[o]n all of the issues of the case." The district judge followed the provisions of Rule 21-400(C); he disclosed the basis for disqualification. The matter had been discussed by Angel with her counsel — not in the presence of the judge. On the record, Angel waived disqualification by agreeing to abide by the judge's decisions in "all of the issues of the case." Rebecca made no objection, and the hearing continued.

{8} The judge then heard several hours of testimony and argument from both Angel and Rebecca concerning the circumstances of the consent. He then stopped the proceeding and voiced his concerns. He explained that he was upset about his failure to put the consent proceedings on the record because that failure put at issue the fairness of the whole proceeding. The judge stated that the parties needed to have confidence that the proceeding was fair to all and that the court was impartial. He then opined that the only way to ensure fairness would be to have another judge review what happened in this case. The judge expressed his concern that he might be called as a witness. Rebecca's attorney pointed out that the judge had already asked Angel about the fairness of his remaining on the case and that Rebecca was not asserting that the consent was improperly taken. The judge then repeated his concerns and told the parties that he would enter an order changing venue in this case.

{9} The judge changed his mind, however, and did not enter the order. See Montaño v. Encinias, 103 N.M. 515, 709 P.2d 1024 (1985) (noting that this Court has repeatedly held that the oral comments of a judge are not binding and that only a written judgment reflects the court's decision). On March 18, 2004, the parties learned that venue would not be changed and that the original district judge would remain on the case. Angel then filed a motion for recusal. At the hearing on the motion, Angel argued that the district judge's comments at the close of the February 27 hearing made his recusal necessary. The judge asked Angel to characterize the potential impropriety. Angel argued that the judge's reliance on his standard practice was improper and that the first notice of this impropriety came during the judge's comments at the close of the February 27 hearing.

{10} We do not agree with Angel that the judge's closing comments on February 27 changed the character of his earlier disclosure. Before the hearing began, the judge explained his standard practice for taking consents. Angel, with full knowledge of the judge's normal practice, intentionally abandoned the right to request recusal. See State v. Bishop, 108 N.M. 105, 108, 766 P.2d 1339, 1342 (Ct.App.1988) ("Waiver is an intentional abandonment of a known right."). The comments regarding the consent that were made at the close of the hearing were not materially different from those made before the hearing began. Thus, Angel did not establish the factual basis necessary to compel recusal. See State ex rel. Bardacke v. Welsh, 102 N.M. 592, 606, 698 P.2d 462, 476 (Ct.App. 1985) ("[T]here must be a reasonable factual basis for doubting the judge's impartiality."). The judge's later concern for the best...