State ex rel. Dept. of Human Services v. Avinger
| Decision Date | 17 October 1985 |
| Docket Number | No. 8423,8423 |
| Citation | 1985 NMCA 97,721 P.2d 781,104 N.M. 355 |
| Parties | STATE of New Mexico, ex rel. DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellee, v. Kathy Latham AVINGER, Respondent-Appellant. |
| Court | Court of Appeals of New Mexico |
Proceeding under the Children's Code, NMSA 1978, Sections 32-"1-"1 to -"45 (Repl.Pamp.1981 & Cum.Supp.1985), see Section 32-"1-"1, the children's court found that Avinger's children had been abandoned and neglected. Section 32-"1-"3(L)(1) and (2). Avinger contends the evidence of abandonment and neglect was not clear and convincing. She also attacks two evidentiary rulings. We do not decide these issues because two jurisdictional issues are dispositive. The jurisdictional issues arise under New Mexico's Child Custody Jurisdiction Act (CCJA), NMSA 1978, Sections 40-"10-"1 to -"24 (Repl.Pamp.1983), and the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. Section 1738A (Cum P.P.1985). We discuss: (1) the authority of the children's court to change the custody of the children under the applicable statutes; (2) authority under the facts; and (3) the motion to dismiss the appeal as moot.
The authority of the children's court to change the custody of the children is a jurisdictional issue. Heckathorn v. Heckathorn, 77 N.M. 369, 423 P.2d 410 (1967).
Avinger had been awarded custody of her children by a Texas court on July 10, 1984. The children are in New Mexico, having been brought here from Texas, via Missouri, by relatives.
On November 5, 1984, the state, through its Department of Human Services (DHS), obtained custody of the children by an ex parte order of the children's court. The basis for the ex parte order was an allegation of neglect and that custody in DHS was necessary for the protection of the children.
DHS filed a neglect petition on November 6, 1984. Section 32-"1-"3(L)(1) and (2) defines a neglected child to include abandonment and circumstances amounting to neglect. Thus, the children's court's findings of both abandonment and neglect were within the issues before the court. After a hearing on November 6, 1984, the children's court ordered on December 11, 1984, that DHS have physical and legal custody of the children until an adjudicatory hearing could be held.
An adjudicatory hearing was held, beginning January 4, 1985. The children's court's findings and conclusions were filed February 1, 1985. The children's court concluded that it had jurisdiction pursuant to Section 32-"1-"9 and that the legal and physical custody of the children should be in DHS. The children's court order of February 1, 1985, continued custody of the children with DHS for a period not to exceed six months.
The ruling that the children's court had jurisdiction under Section 32-"1-"9 raises the issue of how that section and the CCJA interrelate. The children's court apparently did not consider the impact of the PKPA.
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 * * * [when] a child [is] alleged to be: * * * (3) a neglected child[.]"
However, 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.
No claim is made that a distinction should be made between "children's court" in Section 32-"1-"9 and "district court" in Section 40-"10-"15. See Sec. 32-"1-"3(C) and In re Guardianship of Arnall, 94 N.M. 306, 610 P.2d 193 (1980). The children's court is a division of the district court.
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). DHS presents five arguments. We identify and answer each argument.
(a) Section 40-"10-"15(A) pertains to the modification of a custody decree of another state. A custody decree had been entered in Texas. DHS claims there is no issue as to the applicability of Section 40-"10-"15(A) because the children's court proceedings did not involve modification of a custody decree.
Section 40-"10-"3(B) defines a "custody determination" as meaning "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 meaning "a custody decree which modifies or replaces a prior custody decree * * *." Similar definitions appear in 28 U.S.C.A. Section 1738A(b)(3) and (5). Avinger's custody of the children under the Texas decree has been modified by the children's court order of February 1, 1985, which continued custody in DHS. The claim that there has been no modification of the Texas decree is meritless. Cf. E.P. v. District Court of Garfield County, 696 P.2d 254 (Colo.1985).
(b) 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 for a New Mexico court to have jurisdiction. 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 are physically present in New Mexico and because the children's court found that the children had been abandoned.
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 had jurisdiction. This, however, does not fulfill 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. Similar requirements appear in 28 U.S.C.A. Section 1738A(f). The fact that the New Mexico court had jurisdiction does not answer the question of whether the New Mexico court had authority to modify the Texas decree.
(c) The New Mexico decisions involving the CCJA have been disputes between parents located in different states. Serna v. Salazar, 98 N.M. 648, 651 P.2d 1292 (1982); Olsen v. Olsen; Hester v. Hester, 100 N.M. 773, 676 P.2d 1338 (Ct.App.1984). The New Mexico decisions involving the PKPA also involve disputes between parents in different states. Tufares v. Wright, 98 N.M. 8, 644 P.2d 522 (1982); Belosky v. Belosky, 97 N.M. 365, 640 P.2d 471 (1982); State ex rel. Valles v. Brown, 97 N.M. 327, 639 P.2d 1181 (1981).
DHS asserts that the provisions of the CCJA which are applicable to custody disputes between parents "are not applicable to custody proceedings authorized by child neglect statutes where the state is a party." That the prior decisions in New Mexico involving the CCJA and the PKPA have involved disputing parents, and this case does not, does not aid DHS. This is a first impression issue.
New Mexico is acting, theoretically, in the best interests of the children, see Olsen v. Olsen, and as parens patriae. In re Santillanes, 47 N.M. 140, 138 P.2d 503 (1943). New Mexico, through its DHS, has obtained a court order awarding it custody of the children of a Texas resident to whom a Texas court had awarded custody. New Mexico obtained that order on the basis of Section 40-"10-"4(A)(3), which gives New Mexico courts jurisdiction when the child is physically present in New Mexico and the child has been abandoned or an emergency necessitates protection of the child because, in this case, of neglect.
The jurisdiction of a New Mexico court based on abandonment or an emergency, stated in Section 40-"10-"4(A)(3), is identical with the Uniform Child Custody Jurisdiction Act, Section 3(a)(3), 9 U.L.A. 122 (1979). The Commissioners' Note states:
Paragraph (3) of subsection (a) retains and reaffirms parens patriae jurisdiction, usually exercised by a juvenile court, which a state must assume when a child is in a situation requiring immediate protection. This jurisdiction exists when a child has been abandoned and in emergency cases of child neglect.
* * *
* * *
This section governs jurisdiction to make an initial decree as well as a modification decree * * *. Jurisdiction to modify an initial or modification decree of another state is subject to additional restrictions contained in sections 8(b) and 14(a).
Id. at 124-"25. Section 14(a) of the Uniform Child Custody Jurisdiction Act, 9 U.L.A. 153 (1979), is similar to Section 40-"10-"15(A), which limits the authority of New Mexico courts to modify a custody decree of another state.
The Uniform Act provides that when a state proceeds under the abandonment or emergency provisions of Section 40-"10-"4(A)(3), the jurisdiction of that state's courts to modify a custody decree is limited by Section 40-"10-"15(A). When the state seeks a change of custody on the basis of abandonment or emergency, Section 40-"10-"15(A) applies.
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). The application of this limitation is discussed in the second issue.
(d) Although the CCJA applies to the state, see (c) above, DHS contends "the primary purpose of [the] CCJA is to facilitate the orderly resolution of child custody disputes between parents located in different states." We agree that is a purpose, see...
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