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Certiorari Granted, May 3, 2011, No. 32,944

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-040

Filing Date: March 14, 2011

Docket No. 30,041

FREEDOM C.,

Petitioner-Appellant,

v.

JULIE ANN D.,

Respondent,

and

BRIAN D. and PEGGY D.,

Petitioners-Appellees,

IN THE MATTER OF THE GUARDIANSHIP

OF PATRICK D., a child.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY

Michael T. Murphy, District Judge

Rodey, Dickason, Sloan, Akin & Robb, P.A.

Edward Ricco

Jocelyn Drennan

Albuquerque, NM

for Appellant

The Pickett Law Firm, LLC

Mark L. Pickett

Las Cruces, NM

for Appellees
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OPINION

SUTIN, Judge.

{1} Freedom C. (Father) appeals an order denying him custody of his and Julie Ann D.’s

(Mother) child (Child) and granting guardianship with legal and physical custody to

Mother’s parents, Brian D. and Peggy D. (Grandparents), pursuant to the Kinship

Guardianship Act (the Act), NMSA 1978, §§ 40-10B-1 to -15 (2001). Father complains that

the district court erred in applying the Act in what was a custody battle between Mother and

Father, when Mother lived with Grandparents, Mother alone agreed to the guardianship, and

Father objected to the guardianship. Father also complains that even if the Act were

applicable, the guardianship was ordered prematurely and with insufficient information. A

tangential complaint is that the court conditioned Father’s right of visitation with Child on

Father’s consent to complete disclosure of his immigration records. We hold that the district

court erred in granting Grandparents’ petition for guardianship under the Act because the

statutory prerequisites for granting the petition did not exist. 

BACKGROUND

{2} In October 2008, Father filed a petition against Mother to determine custody and time

sharing relating to Child, who was born in September 2005. At the time of the petition,

Father had physical custody of Child, which he obtained approximately two weeks earlier

as a result of filing a domestic violence proceeding that was ultimately dismissed. Mother

filed an emergency motion regarding custody. Mother did not work full-time, and Father

was in the United States on a student visa with no permanent right to stay in the United

States. Following an evidentiary hearing in the district court, at which Father and Mother

were represented by counsel and testified, and Grandparents also testified, the court entered

an October 2008 order granting sole legal and physical custody of Child to Grandparents

with all authority to make all legal custody decisions for Child “[i]n the interim, until further

order of the [c]ourt.” The court set out visitation and other conditions for the parties. The

court also appointed a 706 expert to make recommendations in regard to legal and physical

custody and visitation. Father sought reconsideration of the visitation conditions. In January

2009, the district court entered a stipulated amended interim order regarding visitation.

{3} In early March 2009, proceeding pro se, Father filed a lengthy motion in which he

requested the court to act in various ways, including: (1) ordering Grandparents to be

brought in as parties, (2) awarding him overnight visitation and giving him more rights to

be involved in Child’s education, (3) considering alleged adverse effects on Child from the

existing detrimental circumstances, (4) awarding him temporary physical custody pending

the 706 expert’s evaluation and report, (5) ensuring that Child’s psychological and emotional

health needs were appropriately met, and (6) maintaining the status quo in several respects.

{4} Following a March 5, 2009, hearing on Father’s motion and other various motions,

the court entered an order and then an amended order determining that Grandparents “shall
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retain temporary sole legal and primary physical custody,” granting Father certain visitation

and setting out certain visitation conditions, and joining Grandparents as parties to the

action. The court set out several requirements and admonished Mother and Father in certain

respects. The court found that Father’s immigration status was relevant to custody and

ordered Father to complete, execute, and provide certain release documents to Grandparents’

counsel in order for counsel to obtain from the appropriate governmental agencies Father’s

immigration records and status.

{5} In April 2009, Father was detained by immigration officials and confined by the

Department of Homeland Security in a detention facility in El Paso, Texas, pending

deportation, on the ground that he was subject to removal from the United States because his

student visa had expired. In July 2009, Grandparents filed a petition under the Act for

guardianship and custody of Child. In their petition, Grandparents alleged, among other

things, that: (1) Father was currently in federal custody awaiting deportation proceedings;

(2) Father was unable to provide adequate care, maintenance, and supervision of Child;

(3) Mother would consent to appointment of Grandparents as guardians of Child; (4) Child

had resided with Grandparents for a period of more than ninety days immediately preceding

the date of the petition; (5) Mother resided with Grandparents; (6) Grandparents assisted

Mother in the care of Child and also provided financial support; (7) Mother and Father

currently had legal custody of Child; and (8) the pending matter involved custody of Child.

Mother subsequently requested the court to grant her joint legal custody with Grandparents.

These motions were followed by Father’s motion for summary judgment in his favor on

Grandparents’ petition. In a hearing on August 31, 2009, on pending motions, at which

Father appeared telephonically because he was still detained, the court decided to defer

action on the custody issues because of Father’s continued detention and the question of how

his immigration status would be resolved. The court nevertheless heard Grandmother’s

recitation of the child’s custody status.

{6} Father was released from detention in September 2009, and he filed numerous

motions and other documents, including several relating to custody and to Grandparents’

petition seeking kinship guardianship under the Act. Among other assertions and challenges,

Father contended that the statutory requirements for a kinship-guardian appointment had not

been met, that detention could no longer be a reason to challenge his ability to care for Child,

that he was best suited to raise Child, that his constitutional rights as a fit biological parent

would be infringed by awarding guardianship to Grandparents, that the kinship-guardian

process was being used by Mother and Grandparents to prevent Father from gaining custody

of Child, and that the district court should await the 706 expert’s recommendations and

follow the recommendations.

{7} Following notices for a hearing on custody and on all motions, at an evidentiary

hearing on October 19, 2009, the parties testified on kinship guardianship and custody, and

Father also presented evidence relating to his immigration and work status, including that

his student visa had been reinstated, he was legally in the United States, he was enrolled in

college, action would be taken to terminate the removal process, and he would be applying

for a work permit. At the outset of the hearing, the court stated that it intended to fully

resolve the case that day. Father’s immigration attorney testified about Father’s immigration
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status, and the court accepted Father’s tender of anticipated witnesses’ testimony as to

Father’s ability to care for Child and Father’s support network. Mother’s testimony

indicated that Child was totally dependent on Grandparents for support since Child’s birth.

The court was not satisfied with Father’s representations as to his immigration status and

found Father to be “totally uncredible.” At the close of the hearing, the court verbally

offered several thoughts and determinations, essentially indicating that it wanted Father to

continue to have a parental role through visitation and that Mother or Father might at some

future time be able to gain custody, but that full physical and legal custody of Child at this

time was given to Grandparents.

{8} The district court entered an initial custody order on November 4, 2009. However,

on December 4, 2009, the court entered an amended order and found that the requirements

of the Act had been met. This amended order found that Mother had consented to the

guardianship; Child had resided with Grandparents for more than ninety days preceding the

date their petition was filed; the parents were “unable, at this time, to provide adequate care,

maintenance, and supervision for . . . [C]hild”; Grandparents had been providing for the care

of Child since his birth and neither Mother nor Father were “capable[,] at this time[,] of

providing a financially or emotionally stable home for . . . [C]hild under the current

circumstances”; and it was in Child’s best interest to grant Grandparents’ petition and to

grant them sole legal and physical custody of Child. In the aforementioned orders, the court

granted Grandparents’ petition and legal and physical custody of Child, granted Father

timesharing and telephonic visits, discussed child support and health care costs, and stated

that the court’s “ruling on the kinship guardianship petition shall be reviewed by this [c]ourt

in [twenty-four] months.” Also on November 4, 2009, the court filed an order on Mother’s

motion to show cause that set out various provisions and requirements, including a provision

stating that Father’s immigration records were “relevant to the ongoing custody and

visitation matters[,]” ordering Father to execute documents necessary to allow Mother “to

have access to all of [Father’s] immigration records[,]” and stating that “[Father’s] execution

of said documents [was] a condition of his continuing visitation with [Child].”

Father’s Appellate Issues

{9} Father appeals the district court’s grant of Grandparents’ petition for kinship

guardianship for two reasons. First, Father contends that the court’s order appointing

Grandparents as kinship guardians under the Act did not include findings sufficient to satisfy

all of the statutory requirements and that, on the record, the court could not have found that

the requirements were met. Second, Father contends that, even were the Act applicable, the

court’s guardianship order was premature and based on insufficient information. Father also

appeals the district court’s order conditioning Father’s right to visitation on his written

consent to release to Mother all of his immigration records.

Standards of Review

{10} On the guardianship custody issue, this case requires us to interpret the provisions

of the Act and also to determine whether the findings of the district court were sufficient to

support application of the Act and to permit the court to grant Grandparents’ petition. We
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review de novo issues of statutory construction and whether findings of fact support the

conclusions and application of law. In re Guardianship of Victoria R., 2009-NMCA-007,

¶ 7, 145 N.M. 500, 201 P.3d 169. Because of our disposition addressing the issue of

application of the Act, we will not review whether the guardianship order was prematurely

entered.

The Act

{11} We first set out pertinent provisions of the Act. Section 40-10B-2 states its policy

and purpose:

A. It is the policy of the state that the interests of children are

best served when they are raised by their parents. When neither parent is

able or willing to provide appropriate care, guidance[,] and supervision to a

child, it is the policy of the state that, whenever possible, a child should be

raised by family members or kinship caregivers.

B. The . . . Act 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.

C. The purposes of the . . . Act 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-8, in pertinent part, provides:

A. Upon hearing, if the court finds that . . . the requirements of

Subsection B of this section have been proved and the best interests of the

minor will be served by the requested appointment, it shall make the

appointment. In other cases the court may dismiss the proceedings or make

any other disposition of the matter that will serve the best interests of the

minor.

B. A guardian may be appointed pursuant to the . . . Act only if:
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(1) a parent of the child is living and has consented in

writing to the appointment of a guardian and the consent has not been

withdrawn; 

(2) a parent of the child is living but all parental rights in

regard to the child have been terminated or suspended by prior court order;

or 

(3) the child has resided with the petitioner without the

parent for a period of ninety days or more immediately preceding the date the

petition is filed and a parent having legal custody of the child is currently

unwilling or unable to provide adequate care, maintenance[,] and supervision

for the child or there are extraordinary circumstances; and

(4) no guardian of the child is currently appointed

pursuant to a provision of the Uniform Probate Code.

C. The burden of proof shall be by clear and convincing

evidence, except that in those cases involving an Indian child as defined in

the federal Indian Child Welfare Act of 1978, the burden of proof shall be

proof beyond a reasonable doubt.

Section 40-10B-12(A) permits “[a]ny person . . . [to] move for revocation of a guardianship

created pursuant to the . . . Act.”

DISCUSSION

Whether the Act’s Requirements Were Met

{12} Father asserts that the district court failed “to make findings that satisfy in full the

statutory requirements for appointment of a kinship guardian[.]” Father contends that his

consent for the guardianship appointment was required under Section 40-10B-8(B)(1), but

was never given. He also contends that the requirement in Section 40-10B-8(B)(3) that

Child reside with Grandparents without the parent for the required ninety-day period was

not met and could not be met because Mother continually resided with Grandparents and

Child before and after the petition was filed. He further contends that the court also did not

and could not find as required in Section 40-10B-8(B)(3) that a parent having legal custody

of the child was unable to provide adequate care, because early in the case the court had

granted legal custody to Grandparents and, therefore, at the time the petition was filed and

granted, neither parent had legal custody. Finally, Father argues that the court did not find

that the operative facts met the standard of extraordinary circumstances in Section 40-10B8(B)(3).

{13} We begin our analysis of whether the Act’s requirements were met with Father’s

arguments that overlay his specific points. Father refers to cases, articles, and provisions of

the Act leading into his view that Grandparents and Mother and the court have improperly
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used the Act to exclude Father from custody and to in effect place custody in Mother, against

the purpose intended by the Legislature, which was “to give legal recognition to the de facto

parental status of third-party caregivers to whom parents have voluntarily entrusted the care

of their child.” Instead, according to Father, the Act was “used by Mother, in alliance with

Grandparents, as an offensive weapon in [a] custody battle[,]” with an “agenda” that

“enable[d] Mother to remain dependent on them while acting as a full-time parent during

Child’s early years and while completing her education.” As Father sees it, the Act was

“invoked only to give Mother the upper hand in maintaining custody of Child in her family

home to the exclusion of Father.” Further, Father sees the guardianship as contrary to the

intent of the Act by allowing one parent, Mother, who continues to function as a parent, and

the guardians, who are Mother’s parents, to live together with Child in an arrangement that

helps Mother to become a more successful single parent while limiting Father to restricted

visitation and allying to divest Father’s parental rights and to deny him custody.

{14} In regard to the Act, Father more specifically argues that the district court’s reliance

on Subparagraphs (1) and (3) of Section 40-10B-8(B) was unsupported. First, with respect

to Subparagraph (1), Father argues that under the circumstances here in which both parents

are living and Father is “very much in the picture[,]” his consent is required, and to create

a guardianship without his consent and over his objection and solely with Mother’s consent

would infringe on his parental rights to the extent of making the guardianship

“constitutionally suspect.” According to Father, the court’s failure to find that Father

consented means that the court’s findings were not sufficient to establish an essential

requirement for application of the Act.

{15} Second, Father argues that Subparagraph (3) requiring that the child has resided with

the petitioner without the parent “should be construed to require that, for a guardian to be

appointed for a child with two living parents, the child must have been living with the

prospective guardian without either parent[.]” That circumstance, according to Father, “is

the factual scenario around which the [Act] was designed” based on the policy, intention,

and purpose of the Act as set out in Section 40-10B-2(A), (B), and (C)(1). Moreover, Father

complains that because neither parent had legal custody at the point the guardianship was

established, the court could not find, and did not find, as required under Section 40-10B8(B)(3), that a parent having legal custody of Child was currently unwilling or unable to

provide the required care.

{16} Grandparents argue that a plain reading of the Act requires that “a parent” in Section

40-10B-8(B)(1) be unambiguously read to require only Mother’s consent and not Father’s.

Grandparents emphasize the court’s critical concern, which was Child’s best interests, and

flatly assert that “[t]his case begins and ends with the best interests of Child.” They further

appear to justify the application of the Act based on a district court’s exercise of equitable

power and flexibility in custody matters. In oral argument before this Court, Grandparents

explained (1) that the district court had in mind a definite plan for Child that was in Child’s

best interests; (2) that the court wanted to carry that plan out through application of the Act;

(3) that, as expressed by the court, the plan included having both parents be a part of Child’s

life while Grandparents were guardians and allowed for the possibility that Mother or Father

could, in the future, gain custody; and (4) that the court narrowly tailored the relief through
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giving Father visitation rights, requiring both parents to attend parenting classes, allowing

Father to return to court once his immigration status was clear, and setting a judicial review

of its order to occur in twenty-four months. We are not persuaded by Grandparents’

arguments.

{17} A kinship guardianship “represents very serious consequences for the parent.” In re

Victoria R., 2009-NMCA-007, ¶ 28 (Pickard, J., specially concurring); cf. State ex rel.

Children, Youth & Families Dep’t v. Pamela R.D.G. (In re Pamela A.G.), 2006-NMSC-019,

¶ 11, 139 N.M. 459, 134 P.3d 746 (“The interest of parents in the care, custody, and control

of their children is a fundamental liberty interest.”). We confine our analysis and decision

in this case to the facts of this case and the requirements in Section 40-10B-8(B)(1) and (3).

We do not believe that the express policy, intent, and purposes of the Act read as a whole

and together with either of those two requirements for guardianship will support an

application of the Act under the present circumstances. A kinship guardianship can be

granted only on petition of a kinship caregiver or other caregiver as defined in Section 40-

10B-5(A). A proceeding under the Act is not brought by a parent. By its language and

apparent intent, the Act exists to permit, if not encourage, kinship guardianship in instances

where parents are unwilling or unable to provide appropriate care, guidance, or supervision

of their child and, upon satisfaction of the requirements in Section 40-10B-8(B) of the Act,

if the child’s best interests will be served by the guardianship. See §§ 40-10B-2(A), -8(A),

(B). 

{18} We do not read the Act as Grandparents and the district court read it, namely, that

a plain reading of the consent requirement in Section 40-10B-8(B)(1) requires the conclusion

that, no matter the circumstance, it takes the consent of only one parent to invoke the

guardianship. To the contrary, in our view the words “a parent” in Sections 40-10B-2(B)

and 40-10B-8(B)(1) must be read to mean both parents when both parents are living and

have the capacity to give consent. We see no valid reason for application of the Act under

the circumstances in the present case. Both parents are living and able to give consent.

Nothing in the Act persuades us that the Legislature intended that where both parents are

living and able to consent to a guardianship under the Act but are unable to provide

appropriate care, guidance, or supervision to their child, a kinship guardianship could be

granted based on the consent of only one parent. We note that, here, Father objected to the

guardianship. 

{19} Other provisions in the Act support our view. For example, “[i]t is the policy of the

state that the interests of children are best served when they are raised by their parents.”

Section 40-10B-2(A) (emphasis added). Further, a purpose of the Act is to “establish

procedures to effect a legal relationship between a child and a kinship caregiver when the

child is not residing with either parent[.]” Section 40-10B-2(C)(1) (emphasis added).

Statutory construction rules say that we should construe the singular to include the plural.

See NMSA 1978, § 12-2A-5(A) (1997) (stating that statutory language in the singular

includes the plural). We note, too, Supreme Court Form 4-988 NMRA, setting out a form

of order appointing a kinship guardian by consent, indicates that the court has reviewed the

sworn petition “and the consent of the [parents,]” and in its use notes for Form 4-988 states

that “[the] form order may be used if both parents have signed a [consent,]” and “may also
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be used if one of the parents of the child is deceased or if the parent’s parental rights have

been terminated.” See Form 4-988. 

{20} Furthermore, we see nothing in the Act indicating that the Legislature intended that

the Act apply where the parents, even when unable to provide care, guidance, or supervision

for their child, are separated and one parent moves out to reside with the child at the home

of a grandparent or other relative. Such an arrangement would enable one parent to utilize

the Act to unfairly engage in in-the-home, continual, and personal parenting of the child to

the exclusion of the other parent. The evidence also does not support a finding under Section

40-10B-8(B)(3) that Child resided with Grandparents without Mother, and that Mother

(much less Mother and Father) had legal custody of Child during the critical ninety-day

period in that section. In regard to the intent and purpose expressed in the Act, this was not

a case in which the parents having legal custody left a child in the care of someone else for

the ninety-day period and that arrangement left the child without appropriate care, guidance,

or supervision. See § 40-10B-2(B). Nor did the procedure effect a legal relationship

between a child and a kinship caregiver when the child was not residing with either parent.

See § 40-10B-2(C)(1). 

{21} We fail to see why, instead of a guardianship, an interim custody order would not be

permissible and appropriate when it places legal custody with a third-party relative while one

of the parents also lives with the third-party relative until the custody battle is resolved.

Although the case did not arise under the Act or on particularly similar facts as those in the

present case, our statements in In re Guardianship of Sabrina Mae D., 114 N.M. 133, 139,

835 P.2d 849, 855 (Ct. App. 1992), a case involving a dispute between a mother and her

grandparents, are insightful and apropos.

In New Mexico, while a district court is invested with subject matter

jurisdiction to grant a petition for guardianship of a minor or to adjudicate

custody disputes between parents and non-parents involving children . . .

over objection of a parent, guardianship proceedings are not the proper

means to involuntarily terminate a parent’s right to custody of his or her

children. In adjudicating competing custody claims between a parent or

parents, and third parties, if the court determines that a child’s custody should

be placed with a non-parent, it is not a requirement that the court also issue

letters of guardianship to the parties awarded custody. Although custody

issues constitute a component of guardianship proceedings involving a minor

child, the court may award or continue custody in third parties without

issuing letters of guardianship.

We do not read in the Act a legislative intent that a kinship guardianship be established in

the type of arrangement that existed in the present case. 

{22} A petitioner for kinship guardianship under the Act cannot prevail simply because

parents are unable to care for their child or because it is in a child’s best interests that

someone other than the parents have custody of the child. The petitioner must satisfy one

of the three prerequisites in Section 40-10B-8(B). The district court’s findings in this case
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do not state facts that fully satisfy the prerequisites upon which a kinship guardianship can

be established. Nor is there evidence that Grandparents met any of those prerequisites. In

addition, the intent and purpose of the Act were not served by its application. The district

court did not offer any rationale as to why the Act needed to be applied in lieu of the

continuation of its existing order placing Child’s interim physical and legal custody in

Grandparents.

{23} We hold that Grandparents failed to establish any prerequisite for application of the

Act, that the district court’s findings did not support the grant of Grandparents’ petition for

kinship guardianship under the Act, and that the court erred in granting the petition. We

therefore reverse the district court’s grant of Grandparents’ petition under the Act. We see

no need to address Father’s argument in regard to the prematurity of the district court’s

determination. We also see no need to address the issue of conditioning Father’s visitation

on his signing the appropriate documents for release of his entire immigration records to

Mother or Grandparents. However, we express our concern about the breadth of the order

as well as an invasion into a privacy interest Father may well have in disclosure of the

records, given that the record fails to indicate why Father’s entire immigration record is

needed at this stage of the proceeding and why, even assuming that the record might contain

information relevant to the question of the Child’s best interests, the record could not be

reviewed by the district court in camera and restricted as necessary in order to assure that

whatever privacy right Father may have is not unnecessarily or improperly invaded. During

the oral argument before this Court, Father indicated that an in camera review might be a

satisfactory way to resolve this issue. 

CONCLUSION

{24} We reverse the district court’s order granting Grandparents’ petition for a kinship

guardianship under the Act and the order establishing the kinship guardianship. We remand

for further proceedings in regard to the issues relating to custody of Child, without regard

to kinship guardianship. 

{25} IT IS SO ORDERED.

______________________________________

JONATHAN B. SUTIN, Judge

WE CONCUR:

______________________________________

CYNTHIA A. FRY, Judge

______________________________________

TIMOTHY L. GARCIA, Judge

Topic Index for Freedom C. v. Julie Ann D., Docket No. 30,041 
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AE APPEAL AND ERROR

AE-SR Standard of Review 

CD CHILDREN

CD-CS Custody

CD-KG Kinship Guardianship

ST STATUTES

ST-IP Interpretation

ST-LI Legislative Intent