Huey v. Lente

514 P.2d 1081, 85 N.M. 585

• Court: New Mexico Court of Appeals
• Decided: July 18, 1973
• Docket: 1058
• Status: Published

Opinions

OPINION

SUTIN, Judge.

This appeal involves termination of parental rights of a mother to her four year old son, pursuant to § 22-2-23, N.M.S.A. 1953 (Vol. 5, Supp.1971). “Termination of Parental Rights” is § 4 of the 1971 “Adoption Act.”

The trial court terminated the mother’s rights to her son, and she appeals.

We reverse.

(1) Section 22-2-23, supra, Entitled "Termination of Parental Rights" is Invalid.

At the opening of trial, a serious discussion between the trial court and counsel arose over the meaning and effect of the judgment provision of “Termination of Parental Rights.” Section 22-2-23 provides for, (A) causes of termination; (B) who may initiate termination (hereinafter called “initiator”); (C) the contents of the application; (D) the time and place for hearing, and notice thereof with a copy of the application to be given to the parents of the minor, and then (E) the provisions for judgment. Subsection E reads as follows:

E. The court after hearing may grant or deny a judgment terminating parental rights. A judgment of the court terminating parental rights has the same effect as an adoption judgment has in terminating the parent-child relationship, including terminating parental rights, dispensing with the consent, and with any required notice of an adoption proceeding of a parent whose relationship is terminated by the judgment. [Emphasis added]

“The same effect” means the same result or the same consequences, Taylor v. Midland Valley R. Co., 197 F. 323 (D.Okl. (1912), as that provided for in § 22-2-33(A), supra, entitled “Effect of Judgment of Adoption . . .”

Subsection (A) provides in part:

A judgment of adoption . . . has the following effect as to matters within the jurisdiction or before the court:

(1) to relieve the natural parents of all parental rights and responsibilities; and

(2) to create the relationship of parent and child between the petitioner and the individual to be adopted, as if the individual adopted were a legitimate blood descendant of the petitioner for all purposes .... [Emphasis added]

“Termination of Parental Rights,” therefore, not only relieves “the natural parents of all parental rights and responsibilities,” but it also creates “the relationship of parent and child between the [initiator] and the individual to be adopted, . . . dispensing with the consent, and with any required notice of an adoption proceeding .” [Emphasis added]

The trial court believed termination meant “the child has no parents.” The mother’s attorney believed “this child is in limbo.” Huey’s attorney believed “that once the court spoke then we could forthwith bring our adoption petition.”

We are confronted with the usual statutory problems which arise under tangled, mixed-up language. Although no similar legislation has been cited to assist in statutory construction, we have found none with language similar to that set forth under § 22-2-23 (E), supra.

“Termination of Parental Rights” statutes are an innovation in New Mexico. A model termination act was drafted by the Children’s Bureau, United States Department of Health, Education and Welfare. See, Katz, Judicial and Statutory Trends in the Law of Adoption, 51 Georgetown L.J. 64 (1962). For other states which have set up statutory procedures to terminate parental rights to a child, see, Ritz, Termination of Parental Rights to Free Child for Adoption, 32 N.Y.U.L.J.' 579, 590 (1957).

In 1970, Arizona adopted statutory authority for “Termination of Parent-Child Relationship.” Section 8-531 to 8-537, Arizona Revised Statutes, Supplement- 1972. It appears to follow the Model Termination Act. This statute creates a bifurcated proceeding for termination and adoption. Upon termination the juvenile court must: “1. Appoint an individual as guardian of the child’s person;” or “2. Appoint an individual as guardian of the child’s person and vest legal custody in another individual or in an authorized agency.”

The purpose of this bifurcated proceeding is “to reduce, if not completely eliminate, contested adoption.” Frondorf and Harper, Arizona’s New Face of Adoption, A.S.U.L.J., 1972, No. 1, 127 at 149.

The New Mexico statute on “Termination of Parental Rights” is not a bifurcated proceeding. It does not provide for disposition of the child’s custody prior to an adoption proceeding. It appears to be, in effect, an adoption proceeding within an adoption statute. Its interpretation was confusing in the court below. It is vague, indefinite, impractical, and unrealistic in this court.

Section 22-2-23, supra, is invalid for the following reasons:

First: The purpose of this section was to .terminate parental rights with respect to a minor child. It was not intended to create a parent-child relationship between the “initiator” of the application and the minor child. This adoptive parent-child relationship is the purpose of the adoption statute. By declaring “Termination” to be- “adoption,” the statute forces the natural parents and the adoptive parents to endure the pains of a contested adoption by “initiators” not allowed to adopt a minor child.

The “initiator” of the application for termination of parental rights is not a person who may adopt under § 22-2-24, supra, of the “Adoption Act.”

An “initiator” under § 22-2-23 (B) (2), (3), supra, may be “the custodian of a minor” or “an agency.”

The “custodian” is defined as “ . a person having custody of an individual, a guardian of the person of an individual, and a guardian ad litem for an individual;” Section 22-2-21 (J), N.M.S.A.1953 (Vol. 5, Supp.1971).

“An agency” is defined as “any person certified, licensed or otherwise specially empowered by law to place minors for adoption.” Section 22-2-21 (C), supra.

It is obvious that such “initiators” are not allowed by law to terminate a natural parent’s rights in order to create an artificial adoptive parent-child relationship. The “initiators” are allowed only to seek termination.

The vague and indefinite language of the statute makes § 22-2-23, supra, unconstitutional. State v. Prince, 52 N.M. 15, 189 P.2d 993 (1948). A person seeking “termination of parental rights” should know whether such proceeding results in adoption. State v. McMaster, 259 Or. 291, 486 P.2d 567, 576 (Or.1971) [concurring opinion].

Second: Section 22-2-23, supra, sets forth three reasons under which the court can terminate parental rights. Termination is the only issue in the proceedings. The qualification of the “initiator” is not an issue. Any unfit person in actual physical custody of a minor child, can initiate proceedings to terminate a mother’s right to her own son. If successful, the “initiator” becomes the parent of the child.

Third: Section 22-2-23, supra, provides for a judgment by adoption without consent of the parents. “Parental rights” is defined as “. . . all rights of a parent with reference to a minor, including parental right to control, or to withhold consent to an adoption, or to receive notice of a hearing on a petition for adoption;” [Emphasis added] Section 22-2-21(1), supra. Consent is at the very foundation of adoption statutes. Before the trial court can consider the merits of an adoption proceeding, the court must first determine whether the consent of the parent has been given or dispensed with. Nevelos v. Railston, 65 N.M. 250, 335 P.2d 573 (1959).

A statute which deprives a parent permanently of his child without consent, or without notice or opportunity to be heard, is void as an unconstitutional deprivation of right without due process of law. In re Mayernik, 292 S.W.2d 562 (Mo. 1956); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). See, Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). In re Adoption of K., 417 S.W.2d 702, 709 (Mo.App. 1967); Annot. 45 A.L.R.2d 1379, 1380 (1956). In re Adoption of K. said:

Adoption involves the dissolution of a constitutionally protected relationship, and unless the parents consent, or there is a substantial showing of some condition dispensing with the necessity of consent, the court has no power to enter a decree of adoption. Adoption may not be decreed simply to enhance the moral and temporal welfare of the child.

Fourth: The judgment of the trial court reads:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the parental rights of Respondent ... to the minor child ... be and they are hereby terminated.

Under this judgment, the sole question was whether the facts warrant the court in completely severing all ties between the mother and her son. The welfare of the child is not controlling.

“Effect of Judgment of Adoption” was not included in the judgment. This is ■ a clear indication that § 22-2-23 is vague, indefinite and uncertain. The child has been placed in limbo, without natural or adoptive parents, and without custody or guardianship. It denies the child the possibility of being placed in a new home and becoming part of a family. For many years, he may be cared for in an institution or be transferred from foster home to foster home. The judgment against respondent is a violation of the due process clause of Art. II, § 18 of the Constitution of New Mexico. See, Robinson v. State, 34 N.M. 557, 287 P. 288 (1930); Annot. 76 A.L.R. 662.

Furthermore, if § 22-2-23 is only a statutory proceeding for “Terminating Parental Rights,” and hot an “Adoption,” it does not come within the scope of the title of the Act and violates Art. IV, § 16 of the New Mexico Constitution.

Other reasons could be stated which declare § 22-2-23, supra, invalid. We do not deem it necessary.

(2) The Trial Court Lacked Jurisdiction to Terminate the Mother’s Rights to her son.

The mother requested the trial court to find “that Respondent will not consent to her child’s adoption by Applicants or by anyone else.” The trial court made no finding on consent and did not “refuse” this request as provided by § 21 — 1— 1(52) (B) (a) (5), N.M.S.A.1953 (Repl.Vol. 4). The undisputed evidence supports this requested finding and we affirm it. Boswell v. Rio De Oro Uranium Mines, Inc., 68 N.M. 457, 362 P.2d 991 (1961); Lamonica v. Bosenberg, 73 N.M. 452, 389 P.2d 216 (1964).

Consent to adoption is a jurisdictional requirement. Courts are powerless to alter the natural parent-child relationship and create an artificial one unless consent is unnecessary or waived. Barwin v. Reidy, 62 N.M. 183, 307 P.2d 175 (1957); Hill v. Patton, 43 N.M. 21, 85 P.2d 75 (1938); Onsrud v. Lehman, 56 N.M. 289, 243 P.2d 600 (1952).

The trial court did not find that consent was unnecessary, dispensed with of relinquished. The trial court lacked jurisdiction to terminate the mother’s right to her son.

(3) The Judgment of the Trial court was Contrary to Public Policy.

The judgment terminating the mother’s rights to her son was contrary to public policy because the Hueys, as applicants, knowingly and willfully violated a formal written agreement with the Department of Public Welfare, entitled “Child Welfare Services Agreement for Foster Family Care.”

On June 2, 1969, the Hueys as foster father and foster mother, signed the agreement, supra. They agreed to comply with ' all the conditions relating to the placement with them of foster children. Of the ten provisions stated, the following are pertinent:

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2. Leave to the agency the making of plans for foster children, including . . . return to parents. .

3. Engage in no adoptive planning for foster children except with agency authorization.

* - * * * * *

7. Report promptly illnesses, behavior and adjustment problems of foster children, and consult with the agency on their medical need.

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9. Treat information about foster children and their families in strictest confidence, to be shared only with the agency.

The Hueys obtained the son as foster parents under the above agreement. They retained a copy of the agreeement. They read it before they signed it. They understood it. They agreed to comply with it. They were aware that the minor child was to be permanently returned to the mother on Friday, March 10, 1972. They were told that the foster plan was terminating. Through Health and Social Services, the mother had been picking up her child on Friday for week ends, and the caseworker told Mrs. Huey that the Department had decided the mother wanted her child and it was going to give him to her right away. On March 13, 1972, in violation of the written agreement, the Hueys filed their application for termination of the mother’s rights to her own son.

When Mrs. Huey was asked if her petition was a breach of the agreement, she said:

No, ma’am. But you can’t take a child and keep him for three years and not grow to love him. Especially when his mother has never had him in the first place.

The trial court questioned Mr. Huey about why he refused to follow the direction of the Welfare Department that the child be returned to his mother. His first sentence of a long explanation was:

We had been, have been with the child for three years and all and we felt that he had grown to be part of our family and all.

He elaborated on illnesses, behavior and adjustment problems, but this all' required consultation with the Department of Public Welfare. Instead of treating their information in strictest confidence, they filed an application for termination of the mother’s rights under § 22-2-23(A) (3), supra. This section reads as follows:

(3) The minor is without proper parental care and control, or subsistence, education or other care or control necessary for his physical, mental or emotional health or inorals, by reason of the misconduct, faults or habits of the parent or the neglect or refusal of the parent, when able to do so, to provide them or by reason of physical or mental incapacity of the parent to provide necessary parental and other care for the minor, if the court finds that the conditions and causes of such behavior, neglect or incapacity are irremediable or will not be remedied by the parent, and that by reason thereof the minor is suffering or will probably suffer serious physical, mental or emotional harm.

The trial court made findings of fact and conclusions of law which cover only the provisions of subsection (A)(3), supra. On appeal, the mother challenged most of the findings. There is merit to the challenges. But we are concerned with the failure of the trial court to adopt certain requested findings of the mother as Respondent which challenge the right of the trial court, as a matter of public policy, to hear an application filed by Huey.

The requested findings are as follows:

10. That in August, 1971, at a full staff meeting, the New Mexico Depart-' ment of Health and Social Services made a decision to return the child permanently to Respondent. That in this regard, a plan of reacquainting the child with his family through increased visiting was begun.

11. That Applicants acquiesced in this plan, and cooperated fully by preparing the child to visit his family, and encouraging and approving of the visits. That the plan was successful and March- 10, 1972 was the date fixed to permanently return the child to his home.

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21. That prior to accepting [the minor child] into their foster home, Applicants Gerald Huey and Bonnie Huey signed an agreement with the New Mexico Department of Health and Social Services, agreeing, in part, to:

2. Leave to the agency the making of plans for foster children, including parental visiting, placement changes, and return to parents and relatives, and cooperate with the agency in carrying out these plans.

3. Engage in no adoptive planning for foster children except with agency authorization.

These requests were not “refused” as provided by § 21-1-52(B) (a) (5), supra, and since the undisputed evidence supports these requests, we affirm them.

The question now arises: Is the judgment of the trial court contrary to public policy in New Mexico. We say “yes.”

The public policy of this state is derived directly or by clear implication from the established law of the state as found in its constitution, statutes and judicial opinions. Barwin v. Reidy, supra.

There was “unjust overreaching” here by foster parents, as there was by natural parents in Barwin v. Reidy, supra.

Under the statutes of our state, the mother is the natural guardian of her children, and shall have the duty of care and education of her children. Section 32-1-1; N.M.S.A.19S3 (Vol. 5). The Department of Public Welfare is charged with administration and supervision of all child welfare activities, service to children placed for adoption, service and care for children in foster family homes. It formulates detailed plans. It makes rules and regulations, and it may take such action deemed necessary or desirable to carry out the provisions of the Welfare Act, which are not inconsistent with it. Section 13-l-4(c), (d), N.M.S.A.1953 (Repl.Vol. 3). In addition, the provisions of the Adoption Act assist in the protection of parental rights.

On the issue of contracts, it is improper for courts to relieve either party to a contract from its binding effect where it has been entered into without fraud or imposition, and is not due to mistake against which equity will afford relief. In re Tocci, 45 N.M. 133, 112 P.2d 515 (1941); Herrera v. C & R Paving Company, 73 N.M. 237, 387 P.2d 339 (1963).

The Hueys were bound by their agreement with the Department of Public Welfare. As between the two, the Department of Public Welfare was entitled to the possession of the minor child. New Mexico Department of Public Welfare v. Cromer, 52 N.M. 331, 197 P.2d 902 (1948).

The minor child was born April 7, 1968. Because the mother and son were ill, the Department of Public Welfare advised the mother it would be helpful if she would allow someone to care for the child until she got well. On July 3, 1968, the mother executed a “Release For Placement and Transportation.” By this document, the mother consented to boarding her son in a home selected by the Department, and consented to medical care for her son by a physician. No consent was given for adoption. Thereafter, the Hueys became foster parents pursuant to the agreement entered into with the Department. The mother of the child, being the third party beneficiary of the Huey agreement, was entitled to its benefits. McKinney v. Davis, 84 N.M. 352, 503 P.2d 332 (1972).

In addition, we have adopted the philosophical principle that “ ‘ . . . the primal instincts and the natural and legal rights of the parents may not be lightly brushed aside . . . ’ All courts recognize that . . . best interest of the child is not measured altogether by material and economic factors — parental love and affection must find some place in the scheme and we all know this item covers a multitude of weaknesses.” Hill v. Patton, supra.

The judgment of the trial court is reversed, the proceedings to terminate the mother’s right to her son is dismissed, and the son must be returned to the mother forthwith.

It is so ordered.

LOPEZ, J., concurs. HERNANDEZ, J., specially concurs.