In my capacity as a domestic relations mediator and
GAL, I have previously written
about a rather convoluted Kinship Guardianship case, Freedom C. v. Julie Ann D., 2011-NMCA-040, in which the New Mexico Court of Appeals concluded that both parents must meet the grounds of § 40-10B-8(B) relied upon. In that case, only Mom had consented to the Kinship Guardianship, and the child had resided only without Dad for the 90-day period. See § 40-10B-8(B)(1) and (3). However, the Supreme Court has recently reversed the Court of Appeals, concluding that "the Legislature intended that both parents need to satisfy at least one of the three conditions, regardless of whether they satisfy the same condition." See In re Patrick D., NM Sup. Ct. No. 32,944 (May 30, 2012).
In its decision, the Court of Appeals had been palpably concerned with the rights of the ousted parent, Dad. It noted "serious consequences" and "equity issues" of terminating or restricting one parent's rights based on the other parent's consent, and permitting one parent to "utilize the Act to unfairly engage in
in-the-home, continual, and personal parenting of the child to the
exclusion of the other parent." See Ct. of App. ¶ 20.
The Supreme Court's decision, in contrast, emphasizes the Legislative policies and purposes of the Kinship Guardianship Act: to provide a child with a "stable and consistent relationship with a kinship caregiver" when "neither parent is able or willing" to adequately care for the child; and to also permit the parents to "maintain or rebuild their relationship with the child when doing so would be in the child's best interests." See Sup. Ct. ¶ 15. The Court also opened up the possibility that § 40-10B-8(B)(2) might also apply, if the District Court's previous award of sole custody to the Grandparents had involved a termination of either Parent's rights. Id. ¶ 26.
The Supreme Court noted a number of irregularities or inadequacies in the trial court proceedings: it "did not make a finding that Mother and Father were unfit" prior to the initial ward of custody to Grandparents, or "specify that 'extraordinary circumstances justified the change in legal and physical custody;" and "the record is not clear whether the district court was suspending all of the rights of the parents by granting sole legal and physical custody to Grandparents," such as to bring (B)(2) to bear. Id. ¶¶ 25-26. Nonetheless, after noting "the procedure employed by the district court was unusual," the Supreme Court concluded "the court acted in a manner consistent with the spirit and intent of the Act." Id. ¶ 27.
As to the argument related to an end run around the statute to the benefit Mom and detriment of Dad, the Court observes that once both parents have been declared unfit [although it previously noted the Court did not make that finding], "the court's duty is to act in the Child's best interests. Therefore, the extent to which the custody arrangement incidentally benefits one biological parent more than the other is irrelevant[.]" It also denies that the District Court's decision lead to an "unfair[]" result, as the Court of Appeals concluded.
Because the original order called for a review of the necessity of guardianship in 24 months, which had expired several months before the date of the Supreme Court decision, the Supreme Court remanded it back to the District Court for that purpose. It also advised the District Court to "enter appropriate findings and specify under what authority the court is ruling" this time around.
All in all, a rather curiously reasoned decision. Some parts do make sense, such as the general principal that best interests must supersede once unfitness has been found. However, as with some other decisions I've previously blogged about, this seems results oriented. Specifically, it seems dismissive of some pretty flagrant missteps below, all of which are blithely swept away under the "best interest" and "spirit of the act" mantles, in apparent disregard of the Court's conclusion that unfitness had not been found.
If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
