French-Hesch v. French-Williams

2010 NMCA 008, 227 P.3d 110, 147 N.M. 620
CourtNew Mexico Court of Appeals
DecidedDecember 9, 2009
Docket29,033
StatusPublished
Cited by7 cases

This text of 2010 NMCA 008 (French-Hesch v. French-Williams) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
French-Hesch v. French-Williams, 2010 NMCA 008, 227 P.3d 110, 147 N.M. 620 (N.M. Ct. App. 2009).

Opinion

OPINION

SUTIN, Judge.

{1} The district court ruled that a maternal grandmother lacked standing under the Grandparent Visitation Privileges Act, NMSA 1978, §§ 40-9-1 to -4 (1993, as amended through 1999) (the Act), to seek reasonable visitation with her grandson. Grandmother appeals. We reverse and remand for further proceedings.

BACKGROUND

{2} Pursuant to the Act, Karin FrenchHesch (Grandmother), Jerry Hesch, and Curtis McMurtrey filed a petition in district court in October 2007 naming Kealy French-Williams (Mother) as Respondent requesting visitation with Deveron French (Child), Grandmother’s grandson, who was born in March 1996. Messrs. Hesch and McMurtrey were soon dismissed as parties and are not involved in this appeal. Mother answered, asserting that Grandmother could not meet threshold requirements for visitation under Section 40-9-2(C) of the Act. The district court held an evidentiary hearing to determine whether a factual basis exists for the court to exercise jurisdiction under the Act. The court addressed the interpretation and application of Subsections (C) and (G) of Section 40-9-2. These subsections read as follows:

C. If a minor child resided with a grandparent for a period of at least three months and the child was less than six years of age at the beginning of the three-month period and the child was subsequently removed from the grandparent’s home by the child’s parent or any other person, the grandparent may petition the district court for visitation privileges with respect to the child[J
G. When considering a grandparent’s petition for visitation privileges with a child, the district court shall assess:
(1) any factors relevant to the best interests of the child;
(2) the prior interaction between the grandparent and the child;
(3) the prior interaction between the grandparent and each parent of the child;
(4) the present relationship between the grandparent and each parent of the child;
(5) time-sharing or visitation arrangements that were in place prior to the filing of the petition;
(6) the effect the visitation with the grandparent will have on the child;
(7) if the grandparent has any prior convictions for physical, emotional or sexual abuse or neglect; and
(8) if the grandparent has previously been a full-time caretaker for the child for a significant period.

Section 40-9-2(C), (G). The district court ruled that Grandmother lacked standing under the Act and dismissed her petition.

DISCUSSION

{3} The parties agree that under the Act Grandmother must meet the threshold requirement of standing under Subsection (C) before the court can proceed on the merits of the visitation petition under Subsection (G). See Ridenour v. Ridenour, 120 N.M. 352, 354, 356, 901 P.2d 770, 772, 774 (Ct.App.1995) (stating that once one of the threshold requirements set out in Section 40-9-2(A) to (F) is met, the district court is to assess the factors in Section 40-9-2(G) and that “visitation is appropriate only after grandparents have met one of the threshold factors”).

Standard of Review

{4} We review a district court’s findings for substantial evidence and resolve all disputes of facts and indulge all reasonable inferences in support of the prevailing party. Las Cruces Prof'l Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177 (filed 1996). We review conclusions of law de novo and we may draw our own conclusions of law. Edmonds v. Martinez, 2009-NMCA-072, ¶ 8, 146 N.M. 753, 215 P.3d 62, cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42; Strata Prod. Co. v. Mercwy Exploration Co., 121 N.M. 622, 627, 916 P.2d 822, 827 (1996). The interpretation of statutes is a question of law that we review de novo. Jacobo v. City of Albuquerque, 2005-NMCA-105, ¶ 4, 138 N.M. 184, 118 P.3d 189.

The District Court’s Determinations

{5} The court entered findings of fact and ruled that Grandmother did not have standing. The district court’s findings were as follows. Child was born in March 1996, Mother is his biological mother, and Grandmother is his maternal grandmother. Grandmother was at the hospital at the time of Child’s birth, and she testified that someone approached her and identified herself as a social worker. Child’s grandfather testified that a woman who identified herself as a nurse, doctor, or social worker indicated there were three possible options concerning Child: (1) the grandparents could take Child without Mother; (2) the grandparents could take Child and Mother; or (3) the “state” would take Child. Mother never spoke directly to the woman, but was told by the grandparents of the choices described by the woman. Mother was not given the option of leaving the hospital with Child. No evidence was presented to the court to explain or justify why Mother was not given that option other than a statement that Mother needed better living conditions. Upon release, Mother and Child lived with the grandparents, during which time Mother was the primary care giver of Child and grandparents provided the “roof over their heads.” Mother lived in Grandmother’s home with Child as a result of Grandmother’s ultimatum shortly after Child was born.

{6} The district court made the following additional findings. Child resided with Mother in Grandmother’s home from the time of his birth until September 1998. In September 1998, a domestic disturbance between Mother and Grandmother led to Mother leaving Grandmother’s home without Child. The testimony was disputed regarding when Child was returned to Mother, and there was insufficient evidence to find that Child lived with Grandmother for three months from September 1998 to December 1998. Under the circumstances of the case, Grandmother lacked standing under the Act to pursue visitation privileges.

{7} The sole issue for us on appeal is whether the district court erred in denying Grandmother standing. The sole standing requirement with which we are concerned is that of a three-month residence. The issue of removal was not covered in the district court’s findings, and it is not a ground argued on appeal.

Grandmother’s Arguments on Appeal

{8} On appeal, Grandmother argues that reversal is required simply because the court found that Child had resided with Grandmother for more than three months when he was less than six years old.

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Bluebook (online)
2010 NMCA 008, 227 P.3d 110, 147 N.M. 620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/french-hesch-v-french-williams-nmctapp-2009.