State ex rel. Children, Youth & Families Department v. Djamila B.

2014 NMCA 045, 5 N.M. 708
CourtNew Mexico Court of Appeals
DecidedApril 9, 2014
DocketNo. 34,583; Docket No. 32,333
StatusPublished
Cited by5 cases

This text of 2014 NMCA 045 (State ex rel. Children, Youth & Families Department v. Djamila B.) 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
State ex rel. Children, Youth & Families Department v. Djamila B., 2014 NMCA 045, 5 N.M. 708 (N.M. Ct. App. 2014).

Opinions

OPINION

KENNEDY, Chief Judge.

{1} In this case of first impression, we hold that a kinship guardian (Guardian), under the Kinship Guardianship Act (the KGA), NMSA 1978, §§ 40-10B-1 to -15 (2001), who is named as a respondent in the abuse and neglect proceeding, is a necessary and indispensable party in the abuse and neglect case and may not be involuntarily dismissed from the case without first revoking the kinship guardianship according to the procedures specified in the KGA.

{2} Because Guardian was a necessary and indispensable party in the abuse and neglect case by virtue of her legal status as a kinship guardian and because her status as Guardian was not terminated under the KGA, the district court erred in dismissing Guardian from the case over her objection. Therefore, the order dismissing Guardian and all subsequent orders entered without notice to her must be reversed.

I. BACKGROUND

{3} No documents establishing the kinship guardianship and its scope were presented to the district court or for our review on appeal. Nevertheless, it is undisputed that, in a separate proceeding in 2007, Guardian was appointed as kinship guardian of M. and A. (Children) pursuant to the KGA, and Children lived with Guardian, their maternal aunt, at least since that time.

{4} In June 2010, Children, Youth and Families Department (CYFD) took custody of Children and filed a neglect/abuse petition against mother, father, stepfather, and Guardian pursuant to the Abuse and Neglect Act (the Act), NMSA 1978, §§ 32A-4-24 (2009) and -28 (2005). At the first adjudicatory hearing, CYFD proposed reunification of Children with Guardian. The district court ordered a treatment plan that focused on Guardian. Reunification with Guardian remained the goal of the proceeding in orders following the first judicial review on November2,2010, the second judicial review on February 3, 2011, and two permanency hearings in May 2010 and August 2011. The district court adopted CYFD’s reunification plan at a subsequent permanency hearing on August 9, 2011, under NMSA 1978, Section 32A-4-25.1 (2009), and Children began to transition back to living with Guardian. Guardian continued with the treatment plan.

{5} Approximately six months later, on February 16, 2012, CYFD filed a motion to dismiss Guardian from the proceedings, stating that it was changing its permanency plan for Children from reunification with Guardian to adoption and would pursue termination of parental rights. CYFD alleged that, since Guardian is not Children’s parent with no parental rights to terminate, she was not an appropriate party to the termination of parental rights proceedings. CYFD further asserted that “[p]er CYFD policy,” Guardian was not eligible to adopt children or for foster placement.1 The district court approved CYFD’s proposed change to the permanency plan in its order filed on April 17, 2012.

{6} Guardian opposed CYFD’s motion to dismiss her from the case. At the subsequent evidentiary hearing on the motion to dismiss Guardian, the district court assumed that without any evidence before it, the kinship guardianship was “temporary” and determined that “it does not divest the parents of . . . rights, [and] it does not vest parental rights in that individual who has been granted temporary kinship guardianship.” Months later, on July 2, 2012, the district court granted the motion to dismiss Guardian in an order devoid of findings of fact or conclusions of law. This appeal followed.

{7} The record shows that CYFD then filed a motion to terminate the parental rights of Children’s natural parents, and a motion for open adoption mediation on July 26, 2012, three weeks after Guardian was dismissed. Although the motion for adoption lists Guardian as a respondent, there is no record that she was served with either the motion for adoption or a copy of the notice of hearing on the motion to terminate parental rights set for September 2012.

II. DISCUSSION

{8} Guardian’s appeal is based on two arguments. First, Guardian maintains that she could not be dismissed from the abuse and neglect proceedings until her kinship guardianship was terminated pursuant to the Act or revoked pursuant to procedures set forth in the KGA. Second, as Children’s kinship guardian, Guardian insists she should be afforded the same or similar due process rights as a biological parent which, in Guardian’s view, meant that she could not be dismissed from the abuse and neglect proceedings without first terminating her rights or revoking her kinship guardianship.

{9} We first- note that the Act explicitly provides for terminating parental rights, but not kinship guardianships. Section 32A-4-28; NMSA 1978, § 3.2A-4-29 (2009). Consequently, we hold that, because Guardian’s kinship guardianship cannot be terminated under the Act, and it had not been revoked pursuant to the KGA, Guardian’s status has not been terminated. As such, it was error for the district court to dismiss Guardian from the abuse and neglect case. Because we reverse on this premise, we do not address the due process argument.

A. Guardian Possessed Statutory Rights

{10} Guardian’s argument on appeal requires us to interpret the applicable statutes under the KGA and the Act. Accordingly, our review is de novo. State ex rel. Children, Youth & Families Dep’t v. Marlene C., 2011-NMSC-005, ¶ 14, 149 N.M. 315, 248 P.3d 863. The statute or statutes, whose construction is in question, are to “be read in connection with other statutes concerning the same subject matter}.]” Quantum Corp. v. State Taxation & Revenue Dep’t, 1998-NMCA-050, ¶ 8, 125 N.M. 49, 956 P.2d 848.

{11} “The [KGA] is intended to address those cases where a parent has left a child or children in the care of another for ninety consecutive days and that arrangement leaves the child or children without appropriate care, guidance[,] or supervision.” Section 40-10B-2(B). Thus, the purposes of the KGA are to:

(1) establish procedures to effect a legal relationship between a child and a kinship caregiver when the child is not residing with either parent; and
(2) provide a child with a stable and consistent relationship with a kinship caregiver that will enable the child to develop physically, mentally[,] and emotionally to the maximum extent possible when the child’s parents are not willing or able to do so.

Section 40-10B-2(C). In keeping with its purpose, the KGA provides that “[a] guardian appointed for a child pursuant to the [KGA] . . . has the legal rights and duties of a parent except the right to consent to adoption of the child and except for parental rights and duties that the court orders retained by a parent.” Section 40-10B-13(A) (emphasis added).

{12} Turning to the Act, it is clear that a kinship guardian may be made a party to an abuse and neglect proceeding in the same manner as a parent. NMSA 1978, § 32A-4-3(B) (2005). Guardians then progress through the case in the same manner as parents.

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Bluebook (online)
2014 NMCA 045, 5 N.M. 708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-children-youth-families-department-v-djamila-b-nmctapp-2014.