Ronald A., Matter of
Decision Date | 16 July 1990 |
Docket Number | No. 19122,19122 |
Citation | 110 N.M. 454,1990 NMSC 71,797 P.2d 243 |
Parties | In the Matter of the Termination of Parental Rights of RONALD A., Respondent, with Respect to Rhonda A. and Tanya A., Children. RONALD A., Petitioner, v. STATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT, Respondent. |
Court | New Mexico Supreme Court |
"[W]hen notice is a person's due, process which is a mere gesture is not due process." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). That statement by the Supreme Court aptly summarizes the treatment accorded petitioner in the case before us. He asks us to reverse the court of appeals, which held that the Human Services Department was not required to serve petitioner's attorney with notice of the Department's action to terminate petitioner's parental rights, when the attorney was representing him in a separate neglect action before the children's court. We agree with petitioner that the majority opinion by the court of appeals is wrong and that Judge Donnelly's dissenting opinion is right. Thus we reverse the court of appeals and remand the case to the district court with instructions (1) to vacate its order terminating petitioner's parental rights and (2) to conduct any further hear ings affecting petitioner's parental rights in such a way as not to be inconsistent with our opinion herein.
Both the majority and dissenting opinions in Ronald A. v. State of New Mexico, ex rel. Human Services Department, 110 N.M.App. 228, 794 P.2d 371 (1990), thoroughly set forth the facts underlying this controversy, and thus we shall not set forth those facts here. The holding that Judge Donnelly unsuccessfully urged upon the majority is as follows:
While I agree with the majority that abuse or neglect cases may be distinct from termination cases, where, however, substantially the same grounds are relied upon in both actions, the state has alleged that the father is of "limited intelligence" and an attorney has been appointed to represent the father in the first action, and the state has stipulated to an order agreeing to return the children contingent with the father's compliance with a court-ordered parenting plan, but the state has failed to give notice to the attorney appointed to protect the father's rights in the first action that it is simultaneously proceeding to terminate the father's right in a second suit, the result violates fundamental fairness.
We agree entirely with Judge Donnelly's statement and adopt it as our holding here. A parent's right in custody is constitutionally protected, Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), and actions to terminate that right must be conducted with scrupulous fairness, including the providing of fair notice to the parent(s). See In re Laurie R., 107 N.M. 529, 534, 760 P.2d 1295, 1300 (Ct.App.1988) ().
Here, the notice that the Department gave to petitioner was defective in that it advised him that he could respond to the summons in one of two ways: either by filing a written response within 20 days or by appearing "at such times as future notices specify." This notice did not track the applicable statute and appeared to give petitioner options he did not have; it was therefore misleading. Even had the notice not been defective, however, we still would conclude that the Department should have served notice on the attorney who represented petitioner in the related neglect case.
Owing to the fact that petitioner was relying entirely on his attorney to handle his neglect case, petitioner rightly could have assumed that his attorney was being duly notified of all hearings and any further proceedings in the layperson's mind. Petitioner's right to a fair hearing in the termination proceeding, including representation by counsel who had been notified of the proceeding, should not have been bartered against his capacity to probe through the intricacies of a court system he doubtless did not comprehend.
Thus, "notice to the parties" in this instance includes notice to petitioner's attorney. While petitioner's attorney had not been appointed to represent him in the termination case and thus was not petitioner's attorney of record in that case, given the context of this proceeding as summarized by Judge Donnelly's statement quoted above, notice nonetheless should have been given to the attorney both of the Department's action to terminate petitioner's parental rights and of all hearings related thereto.
The Department's conduct in this case was, at best, unprofessional, and deprived petitioner of his right to be accorded procedural due process in the proceeding brought against him to terminate his parental rights. Such a proceeding should be conducted openly, with the widest possible disclosure of the Department's intentions given to all concerned parties so that a parent's custodial rights may be adjudicated only after full notice to the parent--and to the parent's legal representative in any case pertaining to the same child.
Instead, the Department in this case conducted itself as if it were involved in a poker game, holding its cards close to its chest. On the one hand the Department led petitioner and his attorney to believe that petitioner could redeem himself and be restored to his parental rights by complying with the court-ordered treatment plan in the neglect case. On the other hand the Department hid from petitioner and his attorney the fact that it already had filed an action to terminate petitioner's parental rights even as it negotiated with petitioner in the neglect case.
Deviousness of this type might be appropriate in diplomatic wrangling between nations hatching secret plots to wage war on one another, but it is highly inappropriate in a setting where constitutional due process is mandated. Instead of seeking, in effect, to make petitioner's day in court as fraught with peril as possible, the Department should have exerted every effort to ensure that peti...
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