Samantha D., Matter of

• Decision Date: 23 June 1987
• Docket Number: No. 96910,96910
• Citation: 1987 NMCA 82,106 N.M. 184,740 P.2d 1168
• Parties: In the Matter of the Termination of Parental Rights with Regard to SAMANTHA D., a Child.
• Court: Court of Appeals of New Mexico

Page 1168

740 P.2d 1168

106 N.M. 184

In the Matter of the Termination of Parental Rights with Regard to SAMANTHA D., a Child.

No. 96910.

Court of Appeals of New Mexico.

June 23, 1987.

Certiorari Denied Aug. 14, 1987.

Joseph William Reichert, Albuquerque, for appellant and cross-appellee.

Wendy E. York, Gallagher & Casados, P.C., Anne H. Assink, Albuquerque, for appellees and cross-appellants.

Michael G. Sousa, Law Office of Joseph Rocca, Albuquerque, appellee and guardian ad litem.

OPINION

ALARID, Judge.

Appellant appeals from a judgment terminating her parental rights to Samantha D. She argues that: (1) the trial court erred in terminating her parental rights; (2) NMSA 1978, Section 32-1-54 (Repl.1986) is unconstitutionally vague; and (3) she has been denied due process.

On cross-appeal, appellees claim that the trial court erred by: (1) not finding abandonment under Section 32-1-54(B)(1); (2) invalidating appellant's consent form for adoption; and (3) not following the doctrine of waiver and estoppel.

BACKGROUND

Appellant is the natural mother of Samantha D., born April 17, 1986. At the time of Samantha's birth, appellant was 18 years old and had never been married to the infant's natural father.

Prior to Samantha's birth, appellant, considering the possibility of adoption, discussed her thoughts with her mother, father, sister, friends and co-workers. Once she decided on adoption, appellant asked her father, himself an attorney, to contact an attorney for the purpose of placing her infant in the home of adoptive parents. Appellant wanted a good home for her child with parents who shared her own religious faith. Through the help of a local church, appellant's lawyer found suitable parents. Appellant relinquished her child within two days after birth, the identity of the adoptive parents remaining unknown to her.

On April 22, 1986, appellant executed a consent to adoption and affidavit which contained, inter alia, a statement that her attorney and her father had fully advised her of her rights and that it was in Samantha's best interests that she be adopted by appellees. On April 30, appellees filed their petition for adoption, which the trial court subsequently dismissed for lack of standing on the basis that appellant's consent for adoption was invalid.

Approximately one month after executing her consent, appellant wished to revoke it, feeling that she had made a mistake by giving up her child. Her father was willing to provide a home for her and the infant, and he agreed to be financially and emotionally supportive of both mother and child. Her attorney refused to inform appellees of appellant's change of heart, and she engaged other counsel. She filed a petition for writ of habeas corpus on June 24, 1986.

In August, the trial court entered an order denying the writ. Although the trial judge found that appellant's consent to adoption was invalid because it lacked the statutory requirements of the Adoption Act, NMSA 1978, Section 40-7-29 to -61 (Repl.1986), he ruled that it was in Samantha's best interests to remain in the interim custody of appellees, with visitation privileges in appellant pending a termination proceeding. In addition, the trial court ordered a psychological evaluation of appellant and appointed a guardian ad litem to represent Samantha in the hearing set for appellee's petition for termination of parental rights. At least two psychological evaluations of appellant were conducted. One of the psychologists, Dr. Samuel Roll, observed appellant's interaction with the child in his office. His opinion that it would be in Samantha's best interests to remain with appellees was based, in part, on his personal observations. Dr. Herbert Levin, a psychiatrist, on the basis of his psychiatric evaluation of appellant, also opined that Samantha should remain with appellees.

On August 14, the trial court issued a letter of intent, stating and explaining its decision to terminate parental rights under Section 32-1-54(B)(4). On September 12, the court issued an amended order. On September 17, 1986, the New Mexico Supreme Court heard appellant's petition for writ of mandamus. Appellant sought to prohibit the trial court from leaving Samantha with appellees solely on the grounds that it was in the best interest of the child to do so. The supreme court denied the writ.

Subsequently, the trial court ruled on all requested findings and conclusions. The court found that although appellant would not have been an unfit mother to raise Samantha had she not initiated the adoption process, she had nonetheless caused the child to be in the care of appellees within 48 hours of birth. It was the trial court's judgment that appellant had abandoned her child pursuant to Section 32-1-54(B)(4); and, considering Samantha's best interests, she should remain with appellees. Moreover, the trial court found that abandonment under the statute could only be rebutted by appellant if she could show the trial court, by clear and convincing evidence, that it was not in the child's best interests to remain with appellees. The trial court found that appellant failed to carry her burden. Judgment for termination was entered on October 15, 1986. Notwithstanding the entry of judgment terminating parental rights, appellant was granted continued visitation privileges of four hours per week pending the outcome of this appeal.

DISCUSSION

The underlying facts of this case place this court in the unenviable position of making very basic decisions which will have a critical impact on the lives of several persons. While this court has great sympathy for all parties to this action, it is keenly aware of its obligation to evaluate and resolve the matter on the basis of the applicable law.

A. Issue of Abandonment and Termination of Parental Rights

The first and primary purpose of the Children's Code, NMSA 1978, Sections 32-1-2 to -55 (Repl.1986), is "to provide for the care, protection and wholesome mental and physical development of children coming within [its] provisions," and secondly "to preserve the unity of the family whenever possible." Sec. 32-1-2(A). This is not to imply, however, that parents have an absolute right to their children, for any right is secondary to the best interests and welfare of the children. Roberts v. Staples, 79 N.M. 298, 442 P.2d 788 (1968); see In re Adoption of Doe, 101 N.M. 34, 677 P.2d 1070 (Ct.App.1984).

Each section of the Code must be interpreted with all other sections in order to ensure its legislative intent. State v. Doe, 95 N.M. 88, 619 P.2d 192 (Ct.App.1980). Thus, in proceedings seeking to terminate parental rights on grounds of abandonment, the court must be satisfied, by clear and convincing evidence, that the best interests of the child will be served by severing the parent-child relationship. See Sec. 32-1-54(A) ("the court shall give primary consideration to the physical, mental and emotional welfare and needs of the child"); State ex rel. Dept. of Human Servs. v. Natural Mother, 96 N.M. 677, 634 P.2d 699 (Ct.App.1981) (findings to support termination of parental rights must be proved by clear and convincing evidence).

Appellant argues that the court erred in finding abandonment under Section 32-1-54(B)(4) which resulted in termination of her parental rights. She claims that the statutory factors creating a rebuttable presumption of abandonment under Sections 32-1-54(B) and (C) were not established by clear and convincing evidence. Appellant relies on In re Adoption of Doe, 89 N.M. 606, 555 P.2d 906 (Ct.App.1976), to support her argument that the best interests of a child are not relevant to the issue of abandonment, since abandonment focuses on parental conduct. See also In re Term. of Par. Rights with Respect to I.N.M. and A.F.E., 105 N.M. 664, 735 P.2d 1170, 26 SBB 440, 443 (Ct.App.1987) ("[a]bandonment focuses on parental conduct and not on the child's welfare"). We are not persuaded.

Prior to the 1985 legislative session, the statutory provision for termination of parental rights was found in the Adoption Act. See NMSA 1978, Sec. 40-7-4 (Cum.Supp.1984). In 1985, the Legislature repealed Section 40-7-4 and incorporated its provisions into a newly-enacted section of the Children's Code, Section 32-1-54. See 1985 N.M. Laws, ch. 194, Secs. 39 and 40.

When In re Adoption of Doe was decided, abandonment was a legal basis for dispensing with parental consent in an adoption proceeding. Under this court's decision in that case, abandonment is a question of fact; there must be sufficient evidence to establish clearly and convincingly the fact of abandonment. In that case, this court identified two elements in the factual test for abandonment: (1) a conscious disregard for the obligations owed by a parent to a child; and (2) the destruction of the parent-child relationship. In re Adoption of Doe, 89 N.M. at 618, 555 P.2d at 918. That definition of abandonment continues to apply. See In re Adoption of Doe, 100 N.M. 764, 676 P.2d 1329 (1984); In re Term. of Par. Rights with Respect to C.P. and E.P., 103 N.M. 617, 711 P.2d 894 (Ct.App.1985).

Termination of parental rights, however, need not always occur in the context of adoption. There are obvious occasions when the state must intervene on behalf of an abandoned, abused or neglected child who is not awaiting adoption but who, in the child's best interests, must be permanently removed from the custody of its parent. Possibly for that reason, or any other reason in the presumed wisdom of the Legislature, in 1985 it provided that a finding by the court that all of the conditions set forth in Section 32-1-54(B)(4) exist shall create a "rebuttable presumption of abandonment." Sec. 32-1-54(C). See 1985 N.M. Laws, ch. 194, Sec. 36.

We cannot agree with appellant that Section 32-1-54 is vague or ambiguous. Section 32-1-54(C) provides that in order for a rebuttable presumption of abandonment to be created, all of the conditions of ...