State ex rel. Dept. of Human Services v. Avinger

• Citation: 1986 NMSC 32,720 P.2d 290,104 N.M. 255
• Decision Date: 19 May 1986
• Docket Number: No. 16134,16134
• Parties: STATE of New Mexico, ex rel. DEPARTMENT OF HUMAN SERVICES, Petitioner, v. Kathy Latham AVINGER, Respondent.
• Court: Supreme Court of New Mexico

Page 290

720 P.2d 290

104 N.M. 255

STATE of New Mexico, ex rel. DEPARTMENT OF HUMAN SERVICES Petitioner, v. Kathy Latham AVINGER, Respondent.

No. 16134.

Supreme Court of New Mexico.

May 19, 1986.

Rehearing Denied June 24, 1986.

[104 NM 256] Richard J. Rubin, General Counsel, Ellen Souberman, John Petoskey, Asst. Attys. Gen., Santa Fe, for petitioner.

Poole, Tinnin & Martin, Barbara L. Shapiro, Sarah Curry Smith, Albuquerque, for respondent.

OPINION

FEDERICI, Justice.

The Department of Human Services (DHS) filed a child neglect petition against Kathy Latham Avinger (Avinger) under the Children's Code, NMSA 1978, Sections 32-1-1 to -53 (Repl.Pamp.1981) on November 6, 1984. Avinger raised jurisdictional issues under New Mexico's Child Custody Jurisdiction Act (CCJA), NMSA 1978, Sections 40-10-1 to -24 (Repl.Pamp.1983), based on the fact that she had been awarded custody of the subject children under a Texas divorce decree. No party raised or briefed the application of the federal Parental Kidnaping Prevention Act (PKPA), 28 U.S.C. Section 1738A (1982) to the facts of this case. DHS had obtained custody of the children by an ex parte order on November 5, 1984. After a temporary custody hearing on the November 6, 1984 neglect petition, the children's court found probable cause for neglect and abandonment and continued custody of the children in DHS by its order of December 11, 1984. An adjudicatory hearing was held on January 4, 1985. The children's court findings and conclusions were filed on February 1, 1985. The trial court held that it had jurisdiction under Section 32-1-9 of the Children's Code.

The Court of Appeals reversed the children's court, 104 N.M. 355, 721 P.2d 781, notwithstanding DHS position that the lower court had jurisdiction under Section 40-10-4(A)(3) of the CCJA to act in an emergency to protect children present in New Mexico. The Court of Appeals held that the CCJA provision relating to modification of custody decrees, Section 40-10-15(A), and the definitions of "custody determination" and "modification decree," Section 40-10-3(B) & (G), applied to a child neglect proceeding and therefore the children's court was required to defer to the jurisdiction of the Texas divorce court. The Court of Appeals decision upheld the children's court ex parte custody order of November 5, 1984, and the temporary custody order of December 11, 1984, both of which were made under the authority of Section 40-10-4(A)(3), but vacated the adjudicatory order of February 1, 1985. The Court of Appeals premised its conclusion on the basis that the PKPA (federal act) applied to this proceeding even if Section 40-10-15(A) did not apply and that the application of federal law limited the authority of the children's court. We reverse the Court of Appeals opinion on the applicability of the PKPA.

The questions presented for review are: (1) whether the Court of Appeals correctly extended the PKPA to cover "child neglect and dependency proceedings" under the CCJA; and (2) whether the Court of Appeals misapplied the limitations of Section 40-10-15(A) to the emergency jurisdiction provision of Section 40-10-4(A)(3)(b). These are questions of first impression in New Mexico.

I. Does the PKPA Cover and Preempt "Child Neglect and Dependency Proceedings" Under the CCJA.

This Court has held that the PKPA applies in child custody disputes across between parents across state lines and that New Mexico courts must apply the PKPA in such cases. Tufares v. Wright, 98 N.M. 8, 644 P.2d 522 (1982); Belosky v. Belosky, 97 N.M. 365, 640 P.2d 471 (1982). This Court to date has not addressed the issue of the application of the PKPA to child neglect and dependency proceedings.

The PKPA is largely a selective incorporation of the model Uniform Child Custody Jurisdiction Act. See Parental Kidnaping Prevention Act: Joint Hearings on S.105 Before the Subcomm. on Criminal Justice of the Senate Comm. on the Judiciary and the Subcomm. on Child and Human Development of the Senate Comm. on Labor and Human Resources, 96th Cong., 2d Sess. 48 (1980) (hereinafter PKPA Senate Hearings ). New Mexico's CCJA is also derived from the model act and it is similar to the federal PKPA. A similarity exists between 28 U.S.C. Section 1738A(f) and Section 40-10-15(A) of the CCJA. However, the definitional sections of the federal act and the state act differ in a significant respect that is fundamental to the issues presented here. The state act specifically includes "child neglect and dependency proceedings" as part of the definition of "custody proceeding." Sec. 40-10-3(C). On the other hand, the PKPA definitional section does not include "child neglect and dependency proceedings." See 28 U.S.C. Secs. 1738A(b)(1)-(8).

It was error for the Court of Appeals in its preemption analysis to hold that the PKPA preempts the CCJA with respect to child neglect and dependency proceedings. There is no basis in the express language of the federal act to conclude that there is preemption of state law on this subject matter. See United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 198, 629 P.2d 231, 274 (1980). Furthermore, the legislative history of the PKPA demonstrates that the primary purpose of the PKPA is to prevent "child snatching" by parents across state lines. The PKPA is meant to offer a national solution to the problems of interstate enforcement of custody decrees which are not final orders and therefore not subject to the application of full faith and credit principles. See New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947). See generally PKPA Senate Hearings at 21-51. The history of the PKPA stresses the importance of preventing "child snatching" and does not contain any reference to child neglect and dependency proceedings. This legislative history demonstrates that there was an absence of Congressional intent to apply the PKPA to child neglect and dependency proceedings. See United Nuclear Corp. v. General Atomic Co.

We hold that the PKPA does not preempt the section of the New Mexico CCJA which specifically includes child neglect and dependency proceedings, where the PKPA is silent with reference to such child neglect and dependency proceedings. We reverse the Court of Appeals on this specific issue.

II. Children's Court Authority Under the CCJA, Sections 40-10-4(A)(3), 40-10-15, and Section 32-1-9 Under the Children's Code.

The pertinent provisions of Section 32-1-9(A) state that the children's court "has exclusive original jurisdiction of all proceedings under the Children's Code in which * * * a child [is] alleged to be * * * a neglected child * * *."

Section 40-10-15(A) states:

A. If a court of another state has made a custody decree, a district court of New Mexico shall not modify that decree unless:

(1) it appears that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with the Child Custody Jurisdiction Act [40-10-1 to 40-10-24 NMSA 1978] or has declined to assume jurisdiction to modify the decree; and

(2) the district court of New Mexico has jurisdiction.

In this case there is no distinction between "children's court" in Section 32-1-9 and "district court" in Section 40-10-15. The children's court is a division of the district court. See Sec. 32-1-3(C) and In re Guardianship of Arnall, 94 N.M. 306, 610 P.2d 193 (1980).

DHS claims that the limitation on the exercise of jurisdiction stated in Section 40-10-15(A) does not apply when the state initiates proceedings under Section 32-1-9(A). We disagree. Section 40-10-15(A) refers to the modification of a custody decree of another state. The children's court proceeding in New Mexico involved the modification of a custody decree entered in the state of Texas. Section 40-10-3(B) defines a "custody determination" as "a court decision and court orders and instructions providing for the custody of a child * * *." Section 40-10-3(G) defines a "modification decree" as "a custody decree which modifies or replaces a prior custody decree * * *." There is no merit to the claim that there has been no modification of the Texas decree where the order of February 1, 1985 continued custody in DHS. Cf. E.P. v. District Court of Garfield County, 696 P.2d 254, 263 (Colo.1985) (the Colorado court concluded that "the UCCJA requires the juvenile court to stay any further action on the dependency proceeding and to refer the case to the Wyoming court that entered the original custody decree so that the state of Wyoming can determine whether it will assume jurisdiction over the matter of custody.").

Section 40-10-4(A) states four grounds on which a New Mexico court has jurisdiction under the CCJA. Any one of the four grounds is sufficient to grant jurisdiction to a New Mexico court. Olsen v. Olsen, 98 N.M. 644, 651 P.2d 1288 (1982).

DHS states that the children's court had jurisdiction under Section 40-10-4(A)(3) because the children were physically present in New Mexico and because the children's court found that the children had been abandoned. The limitation on the authority of the children's court to modify another state's custody decree applies when the state seeks that modification under Section 40-10-4(A)(3). Section 40-10-15(A)(2) states that the district court may not modify a custody decree of another state unless the district court has jurisdiction. We agree that the children's court, as a division of the district court, had jurisdiction. This, however, does not meet the requirement that the New Mexico court "shall not modify" the decree of another state unless the requirements of Section 40-10-15(A)(1) are met. The fact that the children's court had jurisdiction does not answer the question of whether the New Mexico court had authority to modify the Texas decree.

The New Mexico decisions made under the CCJA have involved custody disputes between parents located in different states....