{ "id": 4078352, "name": "CHRIS and CHRISTINE L., Petitioners-Appellees, v. VANESSA O., Respondent-Appellant, and ADON F., Respondent, IN THE MATTER OF NATALIA O., Child", "name_abbreviation": "Chris & Christine L. v. Vanessa O.", "decision_date": "2013-08-20", "docket_number": "Docket No. 32,193", "first_page": "146", "last_page": "153", "citations": [ { "type": "official", "cite": "2013-NMCA-107" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "121 N.M. 258", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566672 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0258-01" ] }, { "cite": "1996-NMCA-009", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0 }, { "cite": "519 U.S. 102", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11594972 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/519/0102-01" ] }, { "cite": "1999-NMCA-035", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827392 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0670-01" ] }, { "cite": "1999-NMCA-077", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257714 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0492-01" ] }, { "cite": "2011-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249607 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 36" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0435-01" ] }, { "cite": "2009-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244404 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0473-01" ] }, { "cite": "285 N.E.2d 288", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "pin_cites": [ { "page": "290", "parenthetical": "explaining that if a parent were not advised of the right to counsel, \"there could be no assurance either that he knew he had such a right or that he had waived it\"" } ], "opinion_index": 0 }, { "cite": "96 N.M. 779", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577319 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0779-01" ] }, { "cite": "1981-NMCA-076", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0 }, { "cite": "2009-NMCA-025", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243080 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 27" }, { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0636-01" ] }, { "cite": "106 N.M. 184", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708108 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/106/0184-01" ] }, { "cite": "1987-NMCA-082", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0 }, { "cite": "281 P.3d 1242", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "pin_cites": [ { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "2012-NMCA-065", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4188642 ], "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0099-01" ] } ], "analysis": { "cardinality": 900, "char_count": 20575, "ocr_confidence": 0.763, "pagerank": { "raw": 6.341819822313591e-08, "percentile": 0.3893188367352691 }, "sha256": "aa2fefb7f3c253c78ad8e51df73aa752d2f88fb40d90a7b48158b437e7b8418d", "simhash": "1:13de6e23641f2e97", "word_count": 3302 }, "last_updated": "2023-07-14T21:28:15.201030+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CYNTHIA A. FRY, Judge", "JONATHAN B. SUTIN, Judge", "M. MONICA ZAMORA, Judge" ], "parties": [ "CHRIS and CHRISTINE L., Petitioners-Appellees, v. VANESSA O., Respondent-Appellant, and ADON F., Respondent, IN THE MATTER OF NATALIA O., Child." ], "opinions": [ { "text": "OPINION\nFRY, Judge.\n{1} In this adoption proceeding, Petitioners Chris and Christine L. (Adoptive Parents) sought and the district court ordered termination of the parental rights of Child\u2019s biological mother (Mother). Although the adoption provisions of the Children\u2019s Code provide that the district court shall appoint counsel for an indigent parent upon request, the district court in this case failed to advise Mother of this right. We conclude that this failure to advise constituted fundamental error. We reverse the final decree of adoption and remand for a determination of whether Mother was indigent at the time the adoption proceeding was initiated.\nBACKGROUND\nThe Guardianship Proceeding\n{2} Although this case is an adoption proceeding, it was preceded by a guardianship proceeding that we summarize here in order to provide context. Following a referral to the Department of Children, Youth and Families, Mother agreed to place Child with Adoptive Parents while undertaking a family plan created by the Department\u2019s child protective services division. Adoptive Parents sought appointment as permanent guardians under the Kinship Guardianship Act. Pending a hearing on the petition for permanent guardianship, the district court entered an order appointing Adoptive Parents as temporary guardians of Child with the idea that Child would be transitioned back to Mother. The order recited that Mother consented to the appointment and that she should have a minimum of two supervised visits (presumably per week) with Child. Mother was not represented by counsel at any time during the guardianship proceedings.\n{3} Relations between Mother and Adoptive Parents soon became strained. Four days after the order was filed, Mother filed a response opposing Adoptive Parents\u2019 petition for permanent guardianship alleging that Adoptive Parents had stopped communicating with Mother and requesting reunification with Child. Adoptive Parents then filed a motion seeking termination of Child\u2019s visits with Mother, and Mother moved for unlimited visits and to revoke the guardianship.\n{4} The parties finally reached an agreement whereby Mother agreed to Adoptive Parents becoming Child\u2019s permanent guardians while Adoptive Parents agreed to work with Mother toward the goal of transitioning Child back to Mother. However, relations again became strained, and Adoptive Parents filed a motion to terminate the guardianship. Following a hearing and a change of Child\u2019s therapist, Adoptive Parents withdrew their motion to terminate the guardianship. Litigation continued, but relations between the parties remained contentious.\nThe Termination/Adoption Proceeding\n{5} Adoptive Parents then filed a new proceeding seeking termination of Mother\u2019s parental rights and adoption of Child. This appeal is from the district court\u2019s judgment in that termination/adoption proceeding.\n{6} At no time from the inception of the adoption proceeding through entry of the final decree did the district court inform Mother that, according to NMSA 1978, Section 32A-5-16(E) (2009), the court would appoint counsel for Mother if she was indigent and requested counsel. The question of Mother\u2019s pro se status arose at the first hearing in the adoption case, and the district court told Mother, \u201c[Yjou are here pro se, so notwithstanding the fact that you are not represented by [an] attorney[], you\u2019re going to be held to the standard of following the rules[.] ... At any time during these proceedings you may hire an attorney. You\u2019re not precluded from doing that because you appear here pro se.\u201d\n{7} Mother faced a challenging proceeding. The court entered a pre-trial order, which listed twenty-one witnesses Adoptive Parents intended to call, including six identified as doctors. The court later appointed a Rule 11-706 NMRA expert to perform a bonding study.\n{8} The trial, scheduled for three days, was held seven months after the termination/adoption petition was filed. Adoptive Parents\u2019 counsel announced that he would be calling about sixteen witnesses to testify, including four doctors.\n{9} During the trial, Mother demonstrated uncertainty about how to conduct herself. Adoptive Parents called the guardian ad litem (GAL) as their first witness. When Adoptive Parents\u2019 counsel offered exhibits identified by the GAL, the district court asked Mother if she had any objection, to which Mother replied, \u201cI\u2019m not sure[,]\u201d and, later, \u201cI really don\u2019t know what that means, honestly.\u201d Mother tried to cross-examine the GAL, but she declined to cross-examine any of the five other witnesses called by Adoptive Parents.\n{10} Following the lunch break on the first day of trial, Mother announced, \u201cI just want to let you know that I won\u2019t be continuing with this hearing today.\u201d She continued, \u201cI can\u2019t take hearing all this. It\u2019s false. People want to be false under oath, that\u2019s fine, but I am excusing myself, and I will appeal.\u201d The district court advised Mother that it was against her best interests to leave the hearing, but Mother left anyway. Adoptive Parents then moved for a directed verdict, which the district court granted. The court then entered a final decree granting Adoptive Parents\u2019 petition for adoption.\n{11} Prior to filing a notice of appeal, a legal aid attorney filed a limited entry of appearance, a certificate supporting Mother\u2019s indigency, and a motion for appointment of an appellate attorney for Mother. The district court appointed appellate counsel for Mother, and this appeal followed.\nDISCUSSION\nIssue and Standard of Review\n{12} Section32A-5-16 (E) provides that in an adoption proceeding where termination of parental rights is sought, a district court \u201cshall, upon request, appoint counsel for an indigent parent who is unable to obtain counsel or if, in the court\u2019s discretion, appointment of counsel for an indigent parent is required in the interest of justice.\u201d If the court appoints counsel, payment \u201cshall be made by the petitioner pursuant to the rate determined by the [SJupreme [Cjourt of New Mexico for court-appointed attorneys.\u201d Id. The question we must answer is whether a district court in such a proceeding must advise the parent of the right to counsel set out in Section 32A-5-16(E).\n{13} Interpretation of a statute is a question of law that we review de novo. State ex rel. Children, Youth & Families Dep\u2019t v. Carl C., 2012-NMCA-065, \u00b6 8, 281 P.3d 1242. \u201cIn interpreting statutes, we seek to give effect to the Legislature\u2019s intent, and in determining intent we look to the language used and consider the statute\u2019s history and background.\u201d Id. (internal quotation marks and citation omitted).\nOverview of the Children\u2019s Code and Termination of Parental Rights\n{14} In determining the meaning of Section 32A-5-16(E), we must read all provisions of the statutory scheme in order to ascertain legislative intent. In re Samantha D., 1987-NMCA-082, \u00b6 12, 106 N.M. 184, 740 P.2d 1168. There are two methods of terminating parental rights under our Children\u2019s Code: one under the child abuse and neglect provisions of the Code and one under the adoption provisions of the Code. Under the abuse and neglect provisions, termination may be sought after the Children, Youth and Families Department (the Department) has taken custody of an allegedly abused and/or neglected child and either the parent has abandoned the child or the Department establishes that \u201cthe conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts by the [Department or other appropriate agency to assist the parent in adjusting\u201d those conditions and causes. NMSA 1978, \u00a7 32A-4-28(B)(2) (2005). Under the adoption provisions of the Code \u2014 applicable in the present case \u2014 Department, an agency, or \u201cany other person having a legitimate interest in the matter, including a petitioner for adoption, the child\u2019s guardian, the child\u2019s guardian ad litem or attorney in another action, a foster parent, a relative of the child or the child\u201d may initiate a proceeding to terminate parental rights on grounds similar to those stated in the abuse and neglect provisions. NMSA 1978, \u00a7\u00a7 32A-5-15(B) (1995), -16(A)(3).\n{15} ' While a parent has a right to counsel under both types of termination proceedings, the statutes express the right differently. Under the abuse and neglect provisions, \u201c[a]t the inception of an abuse and neglect proceeding, counsel shall be appointed for the parent, guardian[J or custodian of the child[,]\u201d and the appointed counsel shall represent the person \u201cnamed as a party until an indigency determination is made at the custody hearing.\u201d NMSA 1978, \u00a7 32A-4-10(B) (2005) (emphasis added). In addition, \u201c[cjounsel shall also be appointed if, in the court\u2019s discretion, appointment of counsel is required in the interest of justice.\u201d Id. Nothing in this statute requires the parent (or guardian or custodian) to request the appointment of counsel.\n{16} In contrast, language in the adoption provisions of the Code suggests that a parent must request the appointment of counsel. That provision states that \u201c[t]he court shall, upon request, appoint counsel for an indigent parent who is unable to obtain counsel or if, in the court\u2019s discretion, appointment of counsel for an indigent parent is required in the interest of justice.\u201d Section 32A-5-16(E). Thus, it is possible to read these two statutes as providing that, while both types of proceedings require a showing of indigency in order to obtain counsel for the termination proceedings, only a parent whose rights may be terminated in an adoption proceeding must request the appointment of counsel.\nLegislature\u2019s Intent\n{17} It does not make sense that the Legislature would draw a distinction between a parent in an abuse and neglect proceeding and a parent in an adoption proceeding, each of whom faces potential termination of the fundamental right to the care and custody of their children. See State ex rel. Children, Youth & Families Dep\u2019t v. John R., 2009-NMCA-025, \u00b6 27, 145 N.M. 636, 203 P.3d 167 (explaining that \u201ca parent has a fundamental interest in the care, custody, and control of his or her children\u201d). In both types of proceedings, the result is the same: the parent\u2019s rights to a relationship with his or her child(ren) are permanently severed. Consequently, in both types of proceedings, the appointment and assistance of counsel is equally important to an indigent parent. It follows that in both types of proceedings the court should advise the parent of the right to have counsel appointed if the parent is indigent. Having the right is meaningless if the parent is unaware of the right. See State ex rel. Dep\u2019t of Human Svcs. v. Perlman, 1981-NMCA-076, \u00b6 10, 96 N.M. 779, 635 P.2d 588 (analyzing provision in prior version of the Children\u2019s Code and stating that \u201c[sjince [the mother] was not informed that she was entitled to an attorney and that one might be obtained for her if she could not afford to pay for one, she hardly could intelligently waive rights of which she was not aware\u201d); In re B., 285 N.E.2d 288, 290 (N.Y. 1972) (explaining that if a parent were not advised of the right to counsel, \u201cthere could be no assurance either that he knew he had such a right or that he had waived it\u201d). Indeed, the colloquy in this case between the district court and Mother may have even suggested to Mother that she had no choice but to pay for an attorney out of her own funds. The court told Mother, \u201cAt any time during these proceedings you may hire an attorney.\u201d\n{18} We conclude that a court must advise a parent in termination proceedings under the adoption provisions of the Children\u2019s Code that he or she is entitled to have counsel appointed if indigency can be established. It makes sense that in any circumstance where an indigent litigant has the right to appointed counsel the court first advises the person of the right, and the person then requests the appointment. Thus, the fact that Section 32A-5-16(E) emphasizes the request for an attorney does not obviate the necessity of first telling the parent that such a request may be honored as a matter of right. See Bishop v. Evangelical Good Samaritan Soc\u2019y, 2009-NMSC-036, \u00b6 11, 146 N.M. 473, 212 P.3d 361 (stating that \u201c[w]e must also consider the practical implications and the legislative purpose of the statute, and when the literal meaning of a statute would be absurd, unreasonable, or otherwise inappropriate in application, we go beyond the mere text of the statute\u201d).\nPreservation\n{19} Adoptive Parents argue that Mother failed to preserve her argument that the district court should have advised her that she had a right to counsel. Adoptive Parents maintain that Mother never stated to the district court that she was indigent, and she never asked for counsel to be appointed. Because she never raised the issue, Adoptive Parents argue that they did not have the opportunity to respond to it in the district court. See State v. Leyva, 2011-NMSC-009, \u00b6 36, 149 N.M. 435, 250 P.3d 861 (explaining that parties are required to preserve their arguments in the district court \u201c(1) to alert the trial court to a claim of error so that it has an opportunity to correct any mistake, and (2) to give the opposing party a fair opportunity to respond and show why the court should rule against the objector\u201d (internal quotation marks, and citation omitted)).\n{20} While it is true that we generally require preservation of issues raised on appeal, we may consider questions involving fundamental error, which \u201cgo[es] to the foundation of the case, and which deprive[s] the [party] of rights essential to his defense.\u201d State ex rel. Children, Youth & Families Dep\u2019t v. Paul P., Jr., 1999-NMCA-077, \u00b6 14, 127 N.M. 492, 983 P.2d 1011 (internal quotation marks and citation omitted). \u201c[Termination of parental rights cases can be candidates for fundamental error analysis.\u201d Id.\n{21} It is well established that \u201ca parent has a fundamental interest in the care, custody, and control of his or her children.\u201d John R., 2009-NMCA-025, \u00b6 27. Thus, actions to terminate a parent\u2019s rights in this regard \u201cmust be conducted with scrupulous fairness.\u201d State ex rel. Children, Youth & Families Dep\u2019t v. Ruth Anne E., 1999-NMCA-035, \u00b6 19, 126 N.M. 670, 974 P.2d 164 (alteration, internal quotation marks, and citation omitted). Here, the district court failed to advise Mother of the statutorily mandated right to counsel provided to an indigent parent, which impacted Mother\u2019s due process rights. See NMSA 1978, \u00a7 32A-5-2(C) (1993) (stating that one purpose of the Adoption Act is to \u201censure due process protections\u201d); Paul P., Jr., 1999-NMCA-077,^ 15 (stating that \u201cthe procedures set out in the Children\u2019s Code for termination of parental rights suffice to insure a parent\u2019s due process rights\u201d). Mother\u2019s clear discomfort with trial procedure and her reluctance to cross-examine witnesses, which included one doctor, a dentist, and the Rule 11-706 expert, underscore the reasons why the Legislature mandated the appointment of counsel for indigentparents facing destruction of the parent-child relationship. Thus, the court\u2019s failure to advise Mother that she would be entitled to appointed counsel if she could establish indigency constituted fundamental error.\n{22} While Adoptive Parents argue that due process protections are not triggered in this private adoption case because there is no state action, we are not persuaded. Parental rights cannot be terminated in the absence of a state action inherent in the statutory schemes set out in the Children\u2019s Code. The Legislature has established two ways of terminating parental rights, one of which may be initiated by a private party, as in this case. And, as the United States Supreme Court has stated, termination cases initiated by private parties involve \u201cthe imposition of an official decree extinguishing, as no power other than the [s]tate can, [the] parent-child relationships.\u201d M.L.B. v. S.L.J., 519 U.S. 102, 116 n.8 (1996). Our Legislature recognized this fact by expressly stating that one of the purposes of the adoption provisions of the Children\u2019s Code is to \u201censure due process protections.\u201d Section 32A-5-2(C).\nAdoptive Parents\u2019 Additional Arguments\n{23} Adoptive Parents make several additional arguments, including the contention that if the district court erred in failing to advise Mother of her right to counsel, either the error was harmless or Mother invited the error; and that even if Mother is entitled to relief, further factual development is necessary. We agree that further factual development is necessary to determine whether Mother was indigent at the relevant times, but we are not persuaded by Adoptive Parents\u2019 remaining arguments. We address these remaining arguments first and then discuss the need for further factual development.\nHarmless Error and Invited Error\n{24} Adoptive Parents argue that Mother made no showing that she was indigent, which is a prerequisite for the appointment of counsel. In addition, they claim that Mother had no real rebuttal to Adoptive Parents\u2019 showing that Mother abandoned Child and, as a result, they maintain that any error resulting from the court\u2019s failure to advise Mother of her right to counsel was harmless.\n{25} We do not agree. We have already determined that the district court\u2019s failure to advise Mother of her right to counsel constituted fundamental error. Fundamental error can hardly be considered harmless. And if Mother did not know that indigency would entitle her to appointed counsel, she could not know that she had to establish that she was indigent. In addition, it is entirely possible that Mother could have rebutted Adoptive Parents\u2019 showing of abandonment if Mother had been represented by counsel.\n{26} We are equally unpersuaded by Adoptive Parents\u2019 argument that Mother invited any error by implying in her first pleading in the adoption case that she had recovered from financial difficulties \u201cduring [a] three[-]month period\u201d and by detailing expenditures she had made during the guardianship proceedings.\n{27} Invited error occurs where \u201c[a] party . . . has contributed, at least in part, to perceived shortcomings in a trial court\u2019s ruling,\u201d and, as a result, the party \u201cshould hardly be heard to complain about those shortcomings on appeal.\u201d Cordova v. Taos Ski Valley, Inc., 1996-NMCA-009, \u00b6 13, 121 N.M. 258, 910 P.2d 334. Adoptive Parents imply that Mother\u2019s vague statements in her initial pleading misled the district court into concluding that Mother was not indigent. The fact that Mother referred to financial difficulties in the past tense and that she had been able to pay some costs of litigation does not rise to the level of an affirmative assertion that she was not indigent. Because Mother did not know that indigency could result in the appointment of counsel, we cannot attribute any significance to the statements in her pleading, nor can we say that it constituted invited error.\nRemand for Indigency Determination\n{28} Because the district court erred in failing to advise Mother of her statutory right to counsel upon a showing of indigency, we reverse the district court\u2019s final decree of adoption and remand for a determination of whether Mother was indigent at the initiation of the adoption proceedings. If Mother can establish indigency, then she is entitled to a new trial with counsel representing her. If she cannot establish that she was indigent at that time, then the district court may re-enter the final decree.\nCONCLUSION\n{29} Forthe foregoing reasons, we reverse the district court\u2019s final decree of adoption and remand for proceedings consistent with this Opinion.\n{30} IT IS SO ORDERED.\nCYNTHIA A. FRY, Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nM. MONICA ZAMORA, Judge\nChild\u2019s biological father was a party to both the guardianship and adoption proceedings, but he is not a party to this appeal. Therefore, while the father also jointly filed papers with Mother, we refer only to Mother\u2019s participation in the proceedings.", "type": "majority", "author": "FRY, Judge." } ], "attorneys": [ "Justice Legal Group, P.C. David A. Standridge, Jr. Albuquerque, NM for Appellees", "Law Offices of Jane B. Yohalem Jane B. Yohalem Santa Fe, NM for Appellant", "Administrative Office of the Courts Elizabeth A. Collard, Guardian Ad Litem Santa Fe, NM for Child" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-107\nFiling Date: August 20, 2013\nDocket No. 32,193\nCHRIS and CHRISTINE L., Petitioners-Appellees, v. VANESSA O., Respondent-Appellant, and ADON F., Respondent, IN THE MATTER OF NATALIA O., Child.\nJustice Legal Group, P.C. David A. Standridge, Jr. Albuquerque, NM for Appellees\nLaw Offices of Jane B. Yohalem Jane B. Yohalem Santa Fe, NM for Appellant\nAdministrative Office of the Courts Elizabeth A. Collard, Guardian Ad Litem Santa Fe, NM for Child" }, "file_name": "0146-01", "first_page_order": 162, "last_page_order": 169 }