Stanley J. v. Cliff L. (In re Guardianship of Adam L.)

STANLEY J. and KELLY J., Petitioners-Appellees, v. CLIFF L., Respondent-Appellant,and IN THE MATTER OF THE KINSHIPGUARDIANSHIP OF ADAM L.and ADRIAN L., Children.

Opinion Number: 2014-NMCA-029

Docket No. 32,421

COURT OF APPEALS OF THE STATE OF NEW MEXICO

Dated: March 5, 2014

Filing Date: November 26, 2013

Certiorari Denied, February 14, 2014, No. 34,474

APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY

Drew Tatum, District Judge

Queener Law Firm, P.C.

Richard L. Queener

Quentin Ray

Clovis, NM

for Appellees

Eric D. Dixon

Portales, NM

for Appellant

Aldridge Actkinson & Rutter

Marion Rutter

Clovis, NM

Attorney Ad Litem

OPINION

VIGIL, Judge.

{1} Cliff L. (Father) appeals an order granting Petitioners guardianship over his biological children, fourteen-year-old Adrian L. and sixteen-year-old Adam L. (Children), pursuant to the Kinship Guardianship Act (the KGA or the Act), NMSA 1978, §§ 40-10B-1 to-15 (2001). The district court concluded that, although Father was at all times fit, willing, and able to care for Children, extraordinary circumstances justified awarding the guardianship to Petitioners over Father's objection. We disagree and reverse.

I. BACKGROUND

{2} Father and Children's Mother were divorced in November 2002. Although both parents were found to be fit, primary physical custody of Children was awarded to Mother, and visitation to Father. Mother moved Children to Broadview, New Mexico, where they lived for the next eleven years, and Children attended school in Grady, New Mexico during this time. Father continued to live in Pilot Point, Texas, where he has family, and Children visited Father in Texas during the summers and holidays in the years that followed. Children have biological family in both Grady and Pilot Point.

{3} Mother developed cancer in 2006, which she battled for six years. While Mother received treatment for several days at a time over the years, Children stayed with their maternal grandparents; but when their grandmother got ill, they starting staying with Petitioners during the seven- to ten-day treatments. Petitioners have no biological relationship to Children, but they were Mother's friends and residents of Grady.

{4} Mother died on January 25, 2012. Two days later, on Friday, January 27, 2012, Petitioners filed a petition in the district court seeking their appointment as kinship guardians over Children pursuant to the KGA and that Petitioner Stanley J. be appointed temporary guardian of Children until notice could be served upon Father. Children also asked that the temporary guardianship be granted on grounds that Mother's funeral was going to be the next day (Saturday, January 28, 2012), that they had been living with Petitioners since Christmas, that Father was coming to take them to Pilot Point, and they desired to remain enrolled in the Grady schools, and remain surrounded by friends and family. The district court was told that Adam was a junior, on the varsity basketball team, and salutatorian of his class, and that Adrian was in the eighth grade, on the junior high basketball team, and valedictorian of his class. Further, the district court was advised that Children were doing "extremely well in their current environment given the current situation with their mother."

{5} A hearing was held the same day the petition was filed, but Father did not attend because he was not aware of it. At the hearing, Petitioner Stanley J. acknowledged that Father was a fit parent, but Children just wanted the court to hear their wishes to stay in Grady instead of being taken to Pilot Point by Father. The district court found that Children's wishes not to be removed from their home, community, and school to be relocated against their wishes during the difficult time of Mother's passing qualified as extraordinary circumstances under the KGA and appointed Petitioner Stanley J. as temporary kinship guardian.

{6} Father arrived in New Mexico to attend Mother's funeral and believed he would be taking Children back to Texas with him, but instead was served with a summons notifying him that Petitioner Stanley J., whom he had never met, was appointed temporary guardian of his children. He immediately hired an attorney and filed a motion to dismiss on January 30, 2012, demanding that custody of Children be returned to him. The district court orally denied Father's motion in a hearing held on February 2, 2012.

{7} On August 27, 2012, the district court held a final hearing to determine if Petitioners should be appointed as permanent kinship guardians under the KGA. Several witnesses testified at this hearing on behalf of Children, regarding Children's established academic, athletic, and social life in Grady, the bond they had with Petitioners and their family, their desire not to move to Texas, and the potential for a negative impact on their motivation to continue to excel if forced to move. Persuaded that these qualified as extraordinary circumstances, the district court issued an order appointing Petitioners as permanent kinship guardians over Children. Father appeals.

II. DISCUSSION

{8} Father argues that the appointment of Petitioners as guardians of Children must be reversed because the evidence failed to establish "extraordinary circumstances" as required under the KGA. Because Father's argument requires us to interpret the meaning of "extraordinary circumstances" in the KGA, the question presented is one of statutory construction, which we review de novo. In re Guardianship of Patrick D., 2012-NMSC-017, ¶ 13, 280 P.3d 909. Moreover, in applying the legal standard of "extraordinary circumstances" to the facts before us, our standard of review is also de novo. In re Guardianship of Victoria R., 2009-NMCA-007, ¶ 7, 145 N.M. 500, 201 P.3d 169 (Alarid, J.) (stating that the mixed questions of law and fact are subject to de novo review).¹

A. The Kinship Guardianship Act

{9} The KGA provides that "[i]t is the policy of the state that the interests of children are best served when they are raised by their parents." Section 40-10B-2(A). However, "[w]hen neither parent is able or willing to provide appropriate care, guidance and supervision to a child, it is the policy of the state that, whenever possible, a child should be raised by family members or kinship caregivers." Id. Because there is no evidence or assertion that Petitioners are family members of Children, we limit our consideration to the concept of a "kinship caregiver" as defined in the Act. Under the Act, "kinship" includes "an adult with whom the child has a significant bond" and a "caregiver" is "an adult, who is not a parent of a child, with whom a child resides and who provides that child with the care, maintenance and supervision consistent with the duties and responsibilities of a parent of the child[.]" Section 40-10B-3(A), (C).

{10} The parties do not dispute that the only applicable provision of the Act, which authorized the district court to appoint Petitioners as kinship guardians is Section 40-10B-8(B)(3). Under this section, a guardian may be appointed "only if it is proved by clear and convincing evidence that

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 filed² 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[.]

Id. (emphasis added); Section 40-10B-8(C) (stating that the burden of proof is by clear and convincing evidence unless the case involves an "Indian child" as defined in the federal Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (2006), in which case the burden of proof is beyond a reasonable doubt). All other requirements of the Act must be complied with, and the appointment must be in the best interests of the child. Section 40-10B-8(A). This case requires us to determine if the facts support a conclusion of law that "extraordinary circumstances" exist to warrant appointment of Petitioners as kinship guardians of Children.

B. The Meaning of Extraordinary Circumstances

{11} The Act does not define what it means by "extraordinary circumstances." However, we are able to ascertain its contours from existing New Mexico case law. We begin with the parental preference doctrine, which has been followed in New Mexico for decades. For example, in Shorty v. Scott, 1975-NMSC-030, ¶ 8, 87 N.M. 490, 535 P.2d 1341, our Supreme Court held that the "parental right doctrine" creates a presumption in a custody dispute between a natural parent and a third party that the welfare and best interests will be served in the custody of the natural parent. In such a dispute, the non-parent has the burden of proving the contrary and that the parent is unfit. Id. ¶ 10.

{12} The potential for "extraordinary circumstances" overcoming the parental preference doctrine was recognized in In re Adoption of J.J.B., 1995-NMSC-026, ¶ 59, 119 N.M. 638, 894 P.2d 994. This was an adoption case in which the father contested the adoption of his child after the mother had placed the child for adoption without the father's knowledge. Id. ¶ 1. After concluding that the adoption was void, the Supreme Court was still left with having to determine what standards would apply in determining who would have custody of the child on remand to the district court. Id. ¶ 57. The Supreme Court reiterated the presumptions of the parental preference doctrine, id. ¶ 58, and added that "[a] parent's right is not absolute and under extraordinary circumstances, custody of a child may be awarded to a nonparent over the objections of a parent." Id. ¶ 59 (emphasis added). Therefore, our Supreme Court agreed, " 'special facts and circumstances' might be found that would provide 'an extraordinary reason' for taking a child from its parent." Id. (citations omitted). The rationale for the exception is "the anticipation of unique situations that are beyond the usual unfit-parent...