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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number:________________ 3 Filing Date: June 18, 2024 4 No. A-1-CA-41140 5 BRITTNEY BARRERAS, 6 Petitioner-Appellant, 7 v. 8 ANGELA ARCHIBEQUE, 9 Respondent-Appellee.
10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Debra Ramirez, District Court Judge
12 Shelle Legal, LLC 13 David E. Shelle 14 Albuquerque, NM
15 Law Office of Jay R. Mueller 16 Jay R. Mueller 17 Albuquerque, NM
18 for Appellant
19 Durham, Pittard & Spalding, LLP 20 Caren I. Friedman 21 Philip M. Kovnat 22 Santa Fe, NM
23 for Appellee 1 OPINION 2 WRAY, Judge. 3 {1} Petitioner Brittney Barreras appeals the district court’s dismissal of her 4 petition to establish parentage, determine custody and time-sharing, and assess child 5 support (the Petition) involving a minor child (Child). The district court determined 6 that the New Mexico Uniform Parentage Act (NMUPA), NMSA 1978, §§ 40-11A- 7 101 to -903 (2009, as amended through 2021) did not apply, dismissed the Petition, 8 adjudicated that Petitioner was not a parent of Child, and ruled that Respondent 9 Angela Archibeque, Child’s biological mother, was Child’s only legal parent. On 10 appeal, Petitioner argues that (1) parentage must be determined under the NMUPA 11 and the district court erred in concluding that the NMUPA did not apply; (2) 12 Petitioner successfully established presumptive parentage of Child under the 13 presumption, referred to as the holding out presumption, outlined in Section 40-11A- 14 204(A)(5) (requiring a showing that “for the first two years of the child’s life, [the 15 presumed parent] resided in the same household with the child and openly held out 16 the child as [their] own”); and (3) Respondent did not present evidence to rebut 17 Petitioner’s presumption of parentage. Petitioner urges this Court to reverse the 18 district court and hold that Petitioner is Child’s parent under the NMUPA. While we 19 agree that reversal is required, under these circumstances, we remand to the district 20 court to weigh the evidence under the NMUPA.
1 BACKGROUND 2 {2} Petitioner and Respondent were in a romantic relationship and cohabitated 3 from at least July 2019 until September 2021. Respondent gave birth to Child in July 4 2019. After the couple broke up and shortly after Petitioner moved out, she filed the 5 Petition and sought to establish parentage, determine custody, and assess child 6 support. Petitioner alleged that she had lived with Child for the first two years of 7 Child’s life and held out Child as her own. Acting pro se, Respondent initially filed 8 a response to the Petition, followed by a motion to modify custody and time-sharing, 9 and a motion to dismiss the Petition. Respondent’s motion to dismiss argued that 10 Petitioner should not be adjudicated a parent of Child, because Respondent had not 11 intended for Petitioner to parent Child, Petitioner did not contribute financially to 12 the household, their relationship was not a committed one, and Respondent did not 13 feel safe based on Petitioner’s contacts with her after their breakup. The district court 14 held an evidentiary hearing on the motions, which focused on the motion to dismiss. 15 Both parties were represented by counsel at the hearing and presented testimony to 16 the district court, which acted as fact-finder. See § 40-11A-601 (providing that the 17 rules of civil procedure for the district courts apply); § 40-11A-632 (“The district 18 court, without a jury, shall adjudicate [parentage] of a child.”). 19 {3} The parties submitted post-hearing proposed findings of fact and conclusions 20 of law. Petitioner argued specifically that the NMUPA applied and that she should
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1 be a presumed parent of Child under Section 40-11A-204(A)(5), because she resided 2 in the same household with Child for the first two years of Child’s life and openly 3 held Child out as her own. In the written order, the district court concluded that 4 Petitioner was not a presumed parent under the NMUPA because the Child was not 5 yet two years old and otherwise because Respondent intended to be a single parent 6 and the parties did not agree to coparent, had no exclusive commitment to each other, 7 and did not jointly contribute to a family home or daily life decisions. We will set 8 forth additional facts in greater detail as we consider Petitioner’s appeal of the 9 district court’s decision. 10 DISCUSSION 11 {4} Resolution of this appeal requires us to interpret the NMUPA, which we 12 review de novo. See Chatterjee v. King, 2012-NMSC-019, ¶ 11, 280 P.3d 283; see 13 also Hum. Servs. Dep’t. v. Toney, 2019-NMCA-035, ¶ 8, 444 P.3d 1074 (interpreting 14 the NMUPA and applying de novo review). To the extent that this appeal implicates 15 issues related to the district court’s findings of fact, we review those determinations 16 for substantial evidence. See Vanderlugt v. Vanderlugt, 2018-NMCA-073, ¶ 51, 429 17 P.3d 1269. “However, we give no deference to the district court’s conclusions of 18 law.” Chapman v. Varela, 2009-NMSC-041, ¶ 5, 146 N.M. 680, 213 P.3d 1109. We 19 begin by outlining the relevant portions of the NMUPA.
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1 {5} The NMUPA contains specific evidentiary and procedural requirements to 2 adjudicate parentage. The NMUPA “applies to determination of parentage in New 3 Mexico,” § 40-11A-103(A), which is “the establishment of the parent-child 4 relationship” by voluntary acknowledgment or judicial adjudication, § 40-11A- 5 102(H). A person who alleges that parentage is established through one of the 6 presumptions listed in Section 40-11A-204(A) must produce sufficient evidence to 7 raise the presumption and maintains the burden of persuasion throughout the 8 proceeding. Cf. Chapman, 2009-NMSC-041, ¶ 11 (explaining the operation of 9 presumptions in the context of undue influence); see also Rule 11-301 NMRA 10 (“[T]he burden of persuasion . . . remains on the party who had it originally.”); § 40- 11 11A-601 (“The proceeding [to adjudicate parentage] is governed by the Rules of 12 Civil Procedure for the District Courts.”). 13 {6} Once a presumption of parentage is established, § 40-11A-201, if the 14 presumption is contested, the party against whom the presumption is directed then 15 “has the burden of producing evidence to rebut the presumption,” Rule 11-301; see 16 § 40-11A-204(B) (requiring that a presumption of parentage be rebutted “only by an 17 adjudication pursuant to Article 6 of the [NMUPA]”); § 40-11A-631 (“Rules for 18 adjudication of paternity.”). “An unrebutted presumption of parentage conclusively 19 establishes the parent-child relationship.” Soon v. Kammann, 2022-NMCA-066, 20 ¶ 12, 521 P.3d 110, cert. granted, 2022-NMCERT-010 (S-1-SC-39544). The
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1 holding out presumption at issue in the present case is set forth in Section 40-11A- 2 204(A)(5), which permits a presumption of parentage if “for the first two years of 3 the child’s life, [the presumed parent] resided in the same household with the child 4 and openly held out the child as [their] own.” The NMUPA does not define the term 5 “held out the child as [their] own,” see § 40-11A-102 (definitions). 1 6 {7} The Petition in the present case alleged the holding out presumption using a 7 form provided by the district court, which includes language that is from a repealed 8 version of the NMUPA. See NMSA 1978, § 40-11-5(A)(4) (1997) (“A [person] is 9 presumed to be the natural [parent] of a child if . . . while the child is under the age 10 of majority, [the person] openly holds out the child as [that person’s] natural child 11 and has established a personal, financial or custodial relationship with the child.”). 12 Accordingly, Petitioner alleged that she “openly held out” Child as her daughter and 13 “established a personal, financial, or custodial relationship with [C]hild.” In the 14 written order granting Respondent’s motion to dismiss, as we have noted, the district 15 court found that Child “[was] under the age of two years old” and concluded that 16 “[t]his case [was] not governed by the [NMUPA]” and “[t]here is no presumption of 17 parentage under these facts.” In reaching this conclusion, the district court appears
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Section 40-11A-106 states that the “[p]rovisions of the [NMUPA] relating to determination of paternity apply to determinations of maternity insofar as possible.”
We have therefore, under the circumstances of this case, elected to set forth the statute neutrally.
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1 to refer to the holding out presumption of Section 40-11A-204(A)(5), because, if 2 Child was under two years old, Petitioner could not have satisfied the two-year 3 requirement. After concluding that the NMUPA did not apply, the district court 4 found that Petitioner failed to prove that the parties had (1) “an agreement about co- 5 parenting or that co-parenting had ever become the status quo between them for the 6 household”; (2) “a stable, exclusive commitment to one another which preceded the 7 birth of [C]hild or parenthood thereafter”; (3) “the kind of relationship where each 8 contributed to the household to sustain a family home”; and (4) “the kind of 9 relationship where decisions were made jointly about careers, bill payments, or 10 healthcare let alone about a marriage or parenthood.” 11 {8} As both parties point out in their briefing, the district court’s finding regarding 12 the Child’s age is clearly erroneous. See Cortez v. Cortez, 2009-NMSC-008, ¶ 12, 13 145 N.M. 642, 203 P.3d 857 (“Unless clearly erroneous or deficient, findings of the 14 trial court will be construed so as to uphold a judgment rather than to reverse it.” 15 (text only) (citation omitted)). The record reflects that when Petitioner filed the 16 Petition, Child was over two years old: Child was born in July 2019, the Petition was 17 filed in November 2021 and alleged that Petitioner lived with Child until September 18 2021. As we have noted, it seems that the district court’s conclusions that “[t]his 19 case [was] not governed by the [NMUPA]” and “[t]here is no presumption of 20 parentage under these facts” were based on Child’s age. Respondent concedes the
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1 error but contends that the error is not reversible. See Rule 1-061 NMRA (harmless 2 error). We agree with Petitioner that the NMUPA controls the parentage 3 determination in the present case. 4 {9} It is for the district court in the first instance to determine whether the statutory 5 presumption of parentage has been established by the evidence presented and 6 whether Respondent has rebutted the presumption. See § 40-11A-204. The 7 presumption of parenthood can be rebutted only by admissible results of genetic 8 testing, see § 40-11A-204(B) (limiting the rebuttal of the presumption of parentage 9 to adjudications pursuant to Article 6 of the NMUPA); § 40-11A-631(A), but the 10 results of genetic testing are only admissible if the test is performed with the consent 11 of both parties or by a court order, see § 40-11A-621(C). A party can move to compel 12 genetic testing, but the district court may deny such a motion under certain 13 circumstances “if the district court determines by clear and convincing evidence that 14 (1) the conduct of the mother or the presumed parent estops that party from denying 15 parentage; and (2) it would be inequitable to disprove the presumed parent’s 16 relationship with the child.” Soon, 2022-NMCA-066, ¶ 20 (citing § 40-11A-608(A), 17 (D)). Section 40-11A-608(B) further dictates that when determining whether to deny 18 a motion for genetic testing, the district court “shall consider the best interest of the 19 child,” as well as nine additional factors. If the district court considers these factors 20 and denies the motion for genetic testing, the presumption of parenthood controls.
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1 See § 40-11A-608(E). If the motion for genetic testing is granted, however, “[t]he 2 NMUPA sets forth the general rule that a person excluded as the parent by genetic 3 testing would normally be adjudicated not to be the parent of the child.” Soon, 2022- 4 NMCA-066, ¶ 20 (citing § 40-11-A-631(D)). 5 {10} We recognize that this statutory procedure is both an opportunity and a 6 burden. The risk exists that people without a real interest in the care of a child may 7 vindictively assert parentage, just as the risk exists that biological parents may 8 attempt to thwart the statutory process for establishing parentage by opposing a 9 genuine parent or demanding parenthood from an unaffiliated person. Justice Bosson 10 noted the potential for this mischief in the Chatterjee concurrence. See 2012-NMSC- 11 019, ¶¶ 57-59 (Bosson, J., specially concurring). The risk also exists that those with 12 the fewest resources, the least societal power, and the most to lose will have to come 13 to court to defend the makeup of their families. We tolerate these risks because “the 14 child’s best interests are served when intending parents physically, emotionally, and 15 financially support the child from the time the child comes into their lives,” and there 16 is “no reason for children to be penalized because of the decisions that their parents 17 make, legal or otherwise.” Id. ¶¶ 33, 37. It is to protect the rights of children that our 18 courts and the adult parties must abide by the statutory guidelines that are designed 19 to ensure that “every child should be treated equally, regardless of the marital status 20 of the child’s parents.” Id. ¶ 33.
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1 {11} Despite the fact-intensive nature of the presumption and rebuttal inquiries, 2 Respondent encourages this Court to affirm the district court’s order based on 3 arguments that the error regarding Child’s age did not affect the outcome of the case, 4 the district court ruled on grounds unrelated to Child’s age, and the parties’ rights 5 were adequately protected during the proceedings. We view this argument to be that 6 the district court was right for any reason. “We are a court of review and our function 7 is to see if legal error that would change the result occurred.” In Re Elizabeth A., 8 2024-NMCA-017, ¶ 23, 542 P.3d 793 (text only) (citation omitted), cert. denied (S- 9 1-SC-40174, Jan. 21, 2024). As a proper exercise of our authority, “we will uphold 10 a district court’s decision if it is right for any reason so long as (1) reliance on the 11 new ground would not be unfair to the appellant; (2) doing so does not require us to 12 assume the role of the district court by delving into fact-dependent inquiries; and (3) 13 there is substantial evidence to support the ground on which we rely.” Id. ¶ 24 (text 14 only) (citation omitted). According to Respondent, the error was harmless because 15 “remand for a finding that Child was actually two” would be “futile” and “a waste 16 of judicial resources,” as the error concerning Child’s age “did not affect the 17 substantial rights of the parties.” See Rule 1-061. Under these circumstances, as we 18 explain, we disagree and conclude that to decide the matter on appeal would require 19 us to delve into fact-dependent inquiries, which is the role of the district court.
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1 {12} The purpose of remand in the present case is greater than to simply correct the 2 finding about Child’s age. The error regarding Child’s age resulted in a 3 determination that the NMUPA did not apply. Resolution of this appeal would 4 require us to weigh the evidence presented to determine whether Petitioner 5 established sufficient evidence for the presumption and whether Respondent 6 rebutted any presumption established. See Freeman v. Fairchild, 2018-NMSC-023, 7 ¶ 35, 416 P.3d 264 (concluding that the case was not well-suited to the application 8 of the right for any reason doctrine because in part “[t]he appellate court would need 9 to undertake a fact-dependent inquiry to accurately determine whether [a party] 10 made a sufficient prima facie showing under [particular] law”). At the evidentiary 11 hearing, Petitioner presented evidence and testified about facts relevant to 12 establishing the requirements of the holding out presumption of Section 40-11A- 13 204(A)(5). Similarly, Petitioner’s proposed findings of fact and conclusions of law 14 were based on the application of the holding out presumption. Respondent responded 15 to Petitioner’s allegations regarding the NMUPA and also separately focused on 16 constitutional issues involving consent and other considerations. The district court 17 did not apply the NMUPA and focused on Respondent’s ongoing intent to parent 18 alone. Because the district court did not apply the NMUPA, no findings were made 19 about the holding out presumption or rebuttal of that presumption, according to the 20 provisions of the NMUPA that we have outlined herein. See Soon, 2022-NMCA-
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1 066, ¶¶ 20-21. We make no determination about any outcome on remand. The 2 weight of the evidence relating to the holding out presumption and any rebuttal 3 evidence must be resolved by the district court sitting as fact-finder. See Chapman, 4 2009-NMSC-041, ¶ 11 (observing that the district court’s decision in a civil nonjury 5 trial is reached by weighing the evidence). Thus remand is neither a futile exercise 6 nor a waste of judicial resources, and we would be required to assume the district 7 court’s fact-finding role to resolve the matter as it was raised by the parties under 8 the NMUPA. See § 40-11A-204; Soon, 2022-NMCA-066, ¶¶ 20-21. 9 {13} Respondent additionally contends, for the first time on appeal, that Petitioner 10 lacked standing to seek an adjudication of parentage. Our Supreme Court in 11 Chatterjee, however, held that under the prior version of the NMUPA, a party has 12 standing when “allegations satisfy the hold out provision of” Section 40-11-5(A)(4) 13 (1997). Chatterjee, 2012-NMSC-019, ¶ 48. The current statute similarly states that 14 “a proceeding to adjudicate parentage may be maintained by . . . a [person] whose 15 [parentage] of the child is to be adjudicated.” Section 40-11A-602(C). In the present 16 case, Petitioner filled out a court-provided form 2 titled, “Petition To Establish 17 Parentage, Determine Custody and Time-Sharing and Assess Child Support,” which 18 provided boxes to check in order to establish various bases for the allegation of
2
This form can be found at https://seconddistrict.nmcourts.gov/wpcontent /uploads/sites/21/2023/11/06PCP_PetitionToEstablishParentage.pdf.
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1 parentage, including by the holding out presumption. The Petition alleged that Child 2 was born on July 3, 2019, and Petitioner filled in the time that she lived with Child, 3 which added up to more than two years—from July 3, 2019 through September 20, 4 2021—and which corresponds with the first two years of Child’s life. By these 5 allegations, sparse though they are, Petitioner alleged that parentage was based on 6 the requirements of the holding out provision of Section 40-11A-204(A)(5). 7 {14} Respondent further maintains that Petitioner’s standing is impacted by 8 Respondent’s constitutional right, established in Troxel v. Granville, 530 U.S. 57, 9 66 (2000), “to make decisions about the care, custody, and control of . . . Child,” and 10 thus required Respondent’s consent for Petitioner to become Child’s parent. In the 11 present case, however, Petitioner did not seek as a third-party to interfere with 12 Respondent’s right to make decisions about the care, custody, and control of Child. 13 See id. at 75 (holding that the application of a state statute, which allowed any person 14 to petition for visitation rights if in the best interest of the child, violated a 15 nonconsenting parent’s “due process right to make decisions concerning the care, 16 custody, and control” of their children). Petitioner instead sought to adjudicate her 17 statutory right to be Child’s parent. See § 40-11A-602 (identifying individuals with 18 standing to request adjudication of parentage). The facts that Respondent alleges to 19 demonstrate that she did not consent to Petitioner being a parent are among those 20 that are relevant to whether a motion for genetic testing should be granted or denied,
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1 see § 40-11A-608(A), (B), but we cannot conclude that Petitioner, who alleged facts 2 to establish the holding out presumption, did not have standing to seek an 3 adjudication of parentage. 4 CONCLUSION 5 {15} Based on the foregoing, we reverse the district court and remand for further 6 proceedings consistent with this opinion. Respondent requests that in the event of 7 remand, we “order the district court to appoint a guardian ad litem for Child to 8 advocate for her best interests and to ensure her safety.” Petitioner does not oppose 9 the appointment of a guardian on remand. Because of the nature of the proceeding 10 to adjudicate parentage and Respondent’s concerns for Child’s safety, on remand, 11 we further direct the district court to determine whether the appointment of a 12 guardian ad litem is necessary to protect Child’s interests. See § 40-11A-612(B) 13 (“The district court shall appoint a guardian ad litem to represent a minor or 14 incapacitated child if the child is a party or the district court finds that the interests 15 of the child are not adequately represented.”); see also Toney, 2019-NMCA-035, 16 ¶ 24 (“[I]n every proceeding in which minor children are involved, a court’s primary 17 obligation is to further the best interests of the child.” (internal quotation marks and 18 citation omitted)).
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1 {16} IT IS SO ORDERED.
2 ______________________________ 3 KATHERINE A. WRAY, Judge
4 WE CONCUR:
5 ___________________________________ 6 ZACHARY A. IVES, Judge
7 ___________________________________ 8 SHAMMARA H. HENDERSON, Judge