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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-41184

ANGELA KIM NATION,

Petitioner-Appellee,

v.

ISAIAH DEREK ROYBAL,

Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY

Flora Gallegos, District Court Judge

Angela Kim Nation

Las Vegas, NM 

Pro Se Appellee

Isaiah Derek Roybal

Las Vegas, NM 

Pro Se Appellant

MEMORANDUM OPINION

MEDINA, Judge.

{1} Respondent (Father), a self-represented litigant, appeals from the district court’s 

order denying his motion to terminate his own parental rights. We issued a notice of 

summary disposition, proposing to summarily affirm. Petitioner (Mother), also filing pro 

se, filed a memorandum in support, and Father filed a memorandum in opposition 

(MIO); Mother filed a response to the memorandum in opposition, and Father filed a 

reply to Mother’s response. While we consider memoranda in support of our notice 

under Rule 12-210(D)(2) NMRA, “our [R]ules of [A]ppellate [P]rocedure do not provide 

for the filing of responses and replies back and forth between the parties to their 

memoranda in support of, or in opposition to, a calendar notice.” Landavazo v. N.M. 
Dep’t of Hum. Servs., 1988-NMCA-002, ¶ 5, 106 N.M. 715, 749 P.2d 538; see Rule 12-

210. Thus, we do not consider Mother’s response to Father’s MIO or Father’s reply 

thereto in deciding this appeal. See Landavazo, 1988-NMCA-002, ¶ 5 (refusing to 

consider the parties’ responses that were not contemplated by our rules). On the basis 

of Mother’s memorandum in support and Father’s memorandum in opposition, we 

remain unpersuaded that the district court erred and affirm. 

{2} In Father’s MIO to our notice, Father now raises alternative arguments: the 

district court should restore his custody rights to Children [MIO 1-5, 8-11] or terminate 

his parental rights [MIO 5-7]. Father’s arguments related to the restoration of his 

custody rights were not raised in his docketing statement. [DS 4] New arguments raised 

in response to a calendar notice are treated as a motion to amend. See Rule 12-

210(D)(2) (stating that “[t]he parties shall not argue issues that are not contained in 

either the docketing statement or the statement of the issues,” but permitting the 

appellant to move to amend the docketing statement upon good cause shown, which 

can be combined with a memorandum in opposition).

{3} In cases assigned to the summary calendar, this Court will grant a motion to 

amend the docketing statement to include additional issues if the motion (1) is timely; 

(2) states all facts material to a consideration of the new issues sought to be raised; (3) 

explains how the issues were properly preserved or why they may be raised for the first 

time on appeal; (4) demonstrates just cause by explaining why the issues were not 

originally raised in the docketing statement; and (5) complies in other respects with the 

appellate rules. See State v. Rael, 1983-NMCA-081, ¶¶ 7-8, 10-11, 14-17, 100 N.M. 

193, 668 P.2d 309. This Court will deny motions to amend that raise issues that are not 

viable, even if they allege fundamental or jurisdictional error. See State v. Moore, 1989-

NMCA-073, ¶¶ 36-51, 109 N.M. 119, 782 P.2d 91, superseded by rule on other grounds 

as recognized in State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730.

{4} Father does not explain how he preserved arguments relative to the restoration 

of his custody rights in district court or the grounds for the district court’s rulings, if any 

were made. The record suggests that Mother was granted sole and full custody of 

Children without objection from Father. [RP 134-35] And, the record before us does not 

contain any motion from Father seeking broader custody rights. [RP 172-73] We cannot 

and will not decide such custody matters for the first time on appeal. State v. Druktenis, 

2004-NMCA-032, ¶ 122, 135 N.M. 223, 86 P.3d 1050 (“[G]enerally, [we will not] address 

issues not preserved below and raised for the first time on appeal.”). Father must seek 

such relief from the district court in the first instance. For these reasons, we deny the 

motion to amend the docketing statement and do not address this matter further. See 

Moore, 1989-NMCA-073, ¶¶ 36-51; Rael, 1983-NMCA-081, ¶¶ 7-8; see also Rule 12-

208(D)(3), (4).

{5} Relative to Father’s alternative desire to have his own parental rights terminated, 

we remain unpersuaded that he has established district court error. Father’s admission 

to unidentified acts underlying criminal charges of child abuse not resulting in great 

bodily harm in exchange for entry into a preprosecution diversion program in a separate 
case, without further detail or reason from Father, does not demonstrate that the district 

court erred by refusing to terminate his parental rights under the Abuse and Neglect Act. 

[MIO 6] See State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 

(stating that a party responding to a summary calendar notice must come forward and 

specifically point out errors of law and fact, and explaining that the repetition of earlier 

arguments does not fulfill this requirement), superseded by statute on other grounds as 

stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374.

{6} For the reasons stated above and in our notice, we affirm the district court’s order 

denying the motion to terminate Father’s parental rights. 

{7} IT IS SO ORDERED. 

JACQUELINE R. MEDINA, Judge

WE CONCUR:

MEGAN P. DUFFY, Judge

KATHERINE A. WRAY, Judge