D.W. v. B.C.

504 P.3d 559

D.W., Petitioner-Appellant,

v.B.C., Respondent-Appellee.

No. A-1-CA-37797

Court of Appeals of New Mexico.

Filing Date: October 1, 2021

Laflin, Pick & Heer, P.A., C. Joseph Wiseman, Albuquerque, NM, L. Helen Bennett, P.C., L. Helen Bennett, Albuquerque, NM, for Appellant

B. C., Silver City, NM, Pro Se Appellee

YOHALEM, Judge.

{1} D.W. (Grandmother) appeals the district court's dismissal of her petition for kinship guardianship of her then twelve-year-old granddaughter, M.C. (Child), pursuant to the New Mexico Kinship Guardianship Act, NMSA 1978, Sections 40-10B-1 to -15 (2001, as amended through 2015) (the Act).¹ Grandmother sought kinship guardianship pursuant to Section 40-10B-8(B)(3) of the Act after the unexpected death of Child's mother, alleging that there were extraordinary circumstances warranting the appointment. Section 40-10B-8(B)(3) states that the district court may appoint a kinship guardian when "the child has resided with the petitioner without the parent for a period of ninety days or more immediately preceding the date the petition is filed and a parent having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance and supervision for the child or there are extraordinary circumstances." Grandmother's petition discloses that Child had resided with her for fourteen days, less than the full ninety days prior to the filing of the petition required by Section 40-10B-8(B)(3).

{2} Grandmother contends on appeal that (1) the district court erred in strictly construing the ninety-day residence requirement as a mandatory prerequisite to the filing of a kinship guardianship petition pursuant to Section 40-10B-8(B)(3), even when extraordinary circumstances are alleged; and (2) the district court erred in dismissing her petition on the alternative basis that the petition failed to allege facts sufficient to establish "extraordinary circumstances" under the Act as a matter of law. We reverse and remand for a full evidentiary hearing and a decision on the merits of Grandmother's kinship guardianship petition.

BACKGROUND

{3} Grandmother's verified petition seeking appointment as Child's kinship guardian was filed days after the unexpected death of Child's mother. Child had been living with Grandmother for fourteen days, since her mother was injured, when the petition was filed. Prior to her mother's injury, Child had lived since her birth in a house on the same property as Grandmother. Grandmother alleged a close relationship with Child based on daily contact since Child's birth. Grandmother reported that she currently was acting as Child's kinship caregiver, as defined by Section 40-10B-3(A) of the Act.

{4} Grandmother's petition alleged that Child suffered from severe mental and emotional problems that predated her mother's death; these symptoms had been exacerbated by deep grief; B.C. (Father) had proved unwilling to engage in psychotherapy and parenting instruction, which had been ordered by the court during parents' divorce; the divorce court had denied Father any contact with Child during the year preceding Mother's death; and the opinion of Child's therapist and the findings of the divorce court were that it would be detrimental to Child's mental and physical health to be placed in Father's care. Grandmother pleaded that extraordinary circumstances made serious detriment to Child likely if she was returned immediately to Father's custody and care. Grandmother also alleged that Father "is unable to provide adequate care, maintenance[,] and supervision for the child[,]" but did not rely on this as an independent basis for her petition for kinship guardianship.

{5} The district court granted Father's motion to dismiss Grandmother's petition for kinship guardianship, "[b]ecause the Petition does not meet the requirement of Section 40-10B-8[(B)(3)]" that Child has resided with Grandmother without a parent for a minimum of ninety days before the filing of the petition. The district court also dismissed the petition on the basis that the sudden death of a parent and Child's severe mental illness were each too common an occurrence to qualify as "extraordinary circumstances" under Section 40-10B-8(B)(3).

{6} Although the district court dismissed the petition and affirmed legal custody of Child in Father, the court nonetheless refused to immediately return Child to Father's physical custody. Exercising its parens patriae authority, see Ridenour v. Ridenour , 1995-NMCA-072, ¶ 8, 120 N.M. 352, 901 P.2d 770, the district court retained limited jurisdiction, concluding that it was in Child's best interest for the court to supervise Child's transition from Grandmother to Father. The district court ordered Father to work with a reunification specialist to repair his relationship with Child, set a court-ordered goal of returning Child to Father's care within ninety days, and ordered Grandmother to cooperate with Child's transition to Father's care.²

{7} Grandmother filed an appeal to this Court from the order of dismissal of her kinship guardianship petition, together with a petition for writ of error. The appeal and the writ of error have been consolidated for decision by this Court.

DISCUSSION

I. Our Legislature Did Not Intend the Ninety-Day Residence Requirement to Be Strictly Applied When There Are Extraordinary Circumstances

{8} A district court may appoint a kinship guardian when "[u]pon hearing, ... the court finds that a qualified person seeks appointment, the venue is proper, the required notices have been given, the requirements of [Section 40-10B-8(B)] ... have been proved and the best interests of the minor will be served by the requested appointment[.]" Section 40-10B-8(A). In this case, there was no dispute that Grandmother was a qualified person, that venue was proper, and that required notices had been given. Grandmother sought kinship guardianship solely pursuant to Section 40-10B-8(B)(3).

{9} The primary ground stated by the district court for dismissing the petition was Grandmother's failure to satisfy what the court concluded was a mandatory prerequisite for the appointment of a kinship guardian under Section 40-10B-8(B)(3)—that Child had resided with Grandmother without a parent for a period of ninety days before the petition was filed.

{10} Grandmother argued in the district court, and continues to argue on appeal, that Section 40-10B-8(B)(3) should be read so that the ninety-day residence requirement applies only when a child's parents are alleged to be "currently unwilling or unable to provide adequate care, maintenance and supervision for the child[,]" and not when the petition alleges instead that there are extraordinary circumstances requiring appointment of a kinship guardian. Grandmother supports her claim with a close textual analysis, contending that the word "or" divides the phrase "there are extraordinary circumstances," from all of the language preceding that phrase. Grandmother reads the statute as follows:

the district court may appoint a kinship guardian when

[(a)] [C]hild has resided with the [P]etitioner without the parent for a period of ninety days or more immediately preceding the date the petition is filed and a parent having legal custody of ... [C]hild is currently unwilling or unable to provide adequate care, maintenance and supervision for ... [C]hild

or

[(b)] there are extraordinary circumstances.

{11} The district court rejected Grandmother's construction of the statute, applying its own close textual analysis of the statutory language. The district court read the extraordinary circumstances requirement as an alternative only to a finding of parental unfitness, concluding that the first clause of the statute requiring residence for ninety days applied to both alternatives: when parents are unable or unwilling to provide adequate care, or when there are extraordinary circumstances. The district court read the statute as follows:

the district court may appoint a kinship guardian when

child has resided with the petitioner without the parent for a period of ninety days or more immediately preceding the date the petition is filed

and

a parent having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance and supervision for the child or there are extraordinary circumstances.

{12} The district court stated that it was basing its conclusion that the ninety-day requirement applied to "both the provision regarding a parent who is unable to parent and extraordinary circumstances" (emphasis added), on a strict reading of the text. The district court relied as well, on how easy it would have been, in the court's view, for the Legislature to have created an additional subsection of Section 40-10B-8(B), without the ninety-day predicate, if the Legislature had intended "extraordinary circumstances," to be an independent basis for a kinship guardianship.

{13} The very question raised here about the construction of Section 40-10B-8(B)(3), whether the ninety-day residence requirement applies when kinship guardianship is sought based on "extraordinary circumstances," has arisen previously in this Court. Stanley J. v. Cliff L. , 2014-NMCA-029, ¶ 10 n.2, 319 P.3d 662 (internal quotation marks omitted). The majority in Stanley J. , however, did not reach this issue, instead concluding that there were no extraordinary circumstances that justified the appointment of a kinship guardian. Id. ¶ 16. This remains, therefore, an issue of first impression.

{14} We review questions of statutory construction de novo. State v. Smith, 2004-NMSC-032, ¶ 8, 136 N.M. 372, 98 P.3d 1022. Our ultimate goal in construing a statute "is to ascertain and give effect to the intent of the Legislature." Id. Statutory language must be interpreted and applied to meet the objective our Legislature sought to accomplish. State ex rel. Helman v. Gallegos , 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d 1352. We analyze a statute's function within a...