Rhonda A., Matter of
| Decision Date | 27 March 1990 |
| Docket Number | No. 11275,11275 |
| Citation | 794 P.2d 371,1990 NMCA 41,110 N.M. 228 |
| Parties | In the Matter of the Termination of Parental Rights with Regard to RHONDA A. and Tanya A., Children. RONALD A., Respondent-Appellant, v. STATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT, Petitioner-Appellee. |
| Court | Court of Appeals of New Mexico |
On the court's own motion, the prior opinion is withdrawn and the following is substituted.
Father appeals the termination of his parental rights and related orders involving two children's court actions. One action involves a periodic review hearing in an abuse and/or neglect proceeding, pursuant to NMSA 1978, Section 32-1-38.1 (Repl.Pamp.1989), and the other concerns a hearing on the Human Service Department's (department) application for termination of parental rights. The abuse and neglect proceeding was assigned Curry County District Court No. 3617; the department's application for termination of parental rights was assigned Curry County District Court No. 3682. Both hearings were conducted on the same day; the hearing on the department's application preceded the periodic review hearing. Father appeals from an order entered in No. 3682 terminating his parental rights, and from an order entered in No. 3617 dismissing the abuse and/or neglect proceedings, although he filed a single notice of appeal. This court assigned one number to both appeals and in effect has consolidated father's separate appeals.
On appeal, father contends that the procedures used by the state deprived him of his due process rights under the fourteenth amendment and also under New Mexico Constitution article II, Section 18 because (1) the counsel appointed to represent him in the abuse and neglect proceeding was not given notice of the application for termination of parental rights or subsequent hearings on that application, and (2) father was not given notice of the first hearing on the merits of the application until after the hearing was completed and the court had terminated his rights. Under the circumstances of this case, we affirm, but we express concerns about the procedures utilized by the state.
BACKGROUND.
Father is the natural father of two girls. Before the filing of the abuse/neglect petition, the girls had been in the department's custody for three years. Father and mother were divorced in proceedings in which mother was given physical custody. The department's three years of custody was based on proceedings against mother. In the abuse and/or neglect proceedings against father, the state alleged his limited interest in the girls during the time they were in its custody, as well as some reported incidents of abuse and neglect.
Attorney Warren F. Frost (Frost) was appointed to represent father in the abuse and/or neglect proceedings. Father admitted neglecting the children. The court adjudicated the children to be neglected and ordered the children to remain in the custody of the department and father to comply with the treatment plan proposed by the department. Upon the first judicial review of this case in June 1988, the parties stipulated to extend the prior judgment with some modifications. The stipulated judgment reflects that the department was still making efforts to reunite the girls with father. However, in May 1988 the department filed an application to terminate father's parental rights. The court clerk opened a new case and assigned a new number to this proceeding. Frost had no knowledge of this new case, and he did not receive notification from the state.
Father was served with the petition in the new case in August and November of 1988. The summons, served on father with the petition, contained the instructions that father was required to either file a written response or appear at such time as future notices would specify and that failure to do so would result in default. We note that the summons served on father in the termination proceeding did not strictly comply with the requirements set forth in the Children's Code. See NMSA 1978, Sec. 32-1-55(C) (Repl.Pamp.1989). Section 32-1-55(C) requires that the notice state specifically "that the person served must file a written response to the application within twenty days if he intends to contest the termination." The summons served on father also stated that father had a right to counsel and that the court would appoint counsel if father was indigent.
The termination matter was heard on the merits in December 1988. Father received no notice of the hearing and did not attend. The court heard evidence from three witnesses. The department requested that parental rights with regard to mother be terminated and that the court grant a continuance in the proceedings regarding father so that father would receive notice, and should father not attend, that a judgment terminating parental rights also be made against him. The court granted the department's request and continued the hearing until January to give the department another opportunity to notify father. The termination matter was set for hearing on January 5, 1989, at 10:30 a.m. Father was given notice of this hearing on December 14, 1988.
In the meantime, in December 1988, the state petitioned for a periodic review of the dispositional judgment entered in the neglect matter. See Sec. 32-1-38.1. The judicial review was set for a hearing on January 5, 1989, at 11:30 a.m. Frost was notified of this hearing two days before the proceedings.
Frost's secretary was in the courthouse on January 4 and learned from the court monitor that there were two hearings involving father that would be heard the next day. The termination hearing would be heard at 10:30 and the review of the neglect judgment would be at 11:30. This was the first Frost knew of the proceedings for termination of parental rights. Frost appeared at 10:30 and objected to the proceedings. He argued that the state's position, that he was only attorney for the neglect proceedings and not the termination, was ludicrous. He pointed out the state's position would mean that he was not entitled to participate in the termination proceedings at 10:30, at the conclusion of which the court would terminate father's rights, thus making judicial review moot in the neglect proceedings to be heard at 11:30. The state's attorney argued that father was properly notified of the termination action through service of the summons and petition containing specific instructions. Frost pointed out that, throughout the neglect proceedings, father had been counting on the attorney to represent father's interests and contact him if there was any problem. He did not, however, offer any evidence, live or by affidavit, to support this argument, nor was his request for a continuance a request for time to obtain that proof.
The court below was not persuaded by Frost's argument. It nonetheless allowed him to participate in the hearing, which was limited to presentation of the judgment terminating parental rights and brief testimony by the social worker. The social worker testified that father vacillated between wanting to relinquish his rights and wanting to assert them. She said father had very little contact with the girls and that the home study on him was negative. The social worker also testified that father made little attempt to comply with the treatment plan. The social worker acknowledged that she knew Frost represented father. The court terminated father's rights. Shortly thereafter, the neglect proceeding was held. Evidence was admitted updating the court on the children's progress and programs for them. The state requested that the case be dismissed based on the fact that father's rights had just been terminated. With no objection, the court ordered dismissal.
Frost appealed both cases on father's behalf. The department has moved to dismiss the appeal. It contends Frost cannot act for father in the termination case and, because father's rights were terminated in that case and because once his rights were terminated the neglect proceedings were properly dismissed, there is no legitimate appeal. We consider this argument unduly technical and mechanistic; we therefore deny the motion to dismiss.
We first address father's argument that his counsel was entitled to notice of the termination proceeding because he had been appointed to represent father in the neglect and abuse proceedings.
APPOINTMENT AS COUNSEL IN A NEGLECT AND ABUSE PROCEEDING: SCOPE OF REPRESENTATION.
The state's contention that the neglect proceedings were separate and distinct from the termination of parental rights proceedings has merit. Thus, we hold that ordinarily there is no requirement that the state serve counsel in one proceeding with papers commencing another separate and distinct proceeding. However, there may be circumstances under which the state should serve an attorney for a parent in abuse and neglect proceedings when the state then seeks to terminate that parent's rights.
The first proceeding is designed to adjudicate the petition for abuse and neglect, make a disposition order, and thereafter to conduct periodic reviews. The second proceeding is designed to determine whether parental rights should be terminated. Many termination cases begin as neglect cases, see, e.g., State ex rel. Human Servs. Dep't v. Cynthia Y., 106 N.M. 406, 744 P.2d 181 (Ct.App.1987); however, a termination proceeding does not necessarily follow a neglect proceeding. A termination proceeding is not dependent on a prior adjudication of neglect. State ex rel. Human Servs. Dep't v. Ousley, 102 N.M. 656, 699 P.2d 129 (Ct.App.1985).
The purposes and the remedies for the two proceedings are...
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