{ "id": 4077657, "name": "STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. DJAMILA B., Respondent-Appellant, and ANGELA C., ABDEL MAHDJID B., and CHARLES A., Respondents, and In the Matter of MAHDJID B. and ALIAH B., Children", "name_abbreviation": "State ex rel. Children, Youth & Families Department v. Djamila B.", "decision_date": "2014-04-09", "docket_number": "No. 34,583; Docket No. 32,333", "first_page": "708", "last_page": "721", "citations": [ { "type": "official", "cite": "2014-NMCA-045" } ], "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": "320 P.3d 16", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2013, "pin_cites": [ { "parenthetical": "holding that remand for a new tidal under abuse and neglect act might be required to correct deprivation of party's rights" } ], "opinion_index": 0 }, { "cite": "2013-NMCA-107", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4078352 ], "year": 2013, "pin_cites": [ { "parenthetical": "holding that remand for a new tidal under abuse and neglect act might be required to correct deprivation of party's rights" } ], "opinion_index": 0, "case_paths": [ "/nm-app/5/0146-01" ] }, { "cite": "1998-NMCA-050", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834155 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0049-01" ] }, { "cite": "2011-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249871 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0315-01" ] }, { "cite": "302 P.3d 761", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 1 }, { "cite": "2013-NMCA-062", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4334952 ], "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 1, "case_paths": [ "/nm-app/4/0150-01" ] }, { "cite": "2009-NMCA-007", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242132 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 1, "case_paths": [ "/nm/145/0500-01" ] }, { "cite": "314 P.3d 698", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 1 }, { "cite": "2013-NMCA-112", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4077829 ], "opinion_index": 1, "case_paths": [ "/nm-app/5/0187-01" ] }, { "cite": "2003-NMSC-015", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 15530 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 24" }, { "page": "\u00b6\u00b6 17, 19" } ], "opinion_index": 1, "case_paths": [ "/nm/133/0827-01" ] }, { "cite": "96 N.M. 138", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577298 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/96/0138-01" ] }, { "cite": "1981-NMCA-053", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 1 }, { "cite": "1999-NMCA-035", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827392 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 10" } ], "opinion_index": 1, "case_paths": [ "/nm/126/0670-01" ] } ], "analysis": { "cardinality": 1239, "char_count": 42797, "ocr_confidence": 0.76, "pagerank": { "raw": 7.031324996443159e-08, "percentile": 0.4242652756975407 }, "sha256": "bc0397485ad38948ad86e19d336475deacd148b7e84ad812c11d4ee3167f8f46", "simhash": "1:332b7f07d9548c71", "word_count": 6819 }, "last_updated": "2023-07-14T21:28:15.201030+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RODERICK T. KENNEDY, Chief Judge", "MICHAEL E. VIGIL, Judge", "JONATHAN B. SUTIN, Judge (dissenting)", "JONATHAN B. SUTIN, Judge" ], "parties": [ "STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. DJAMILA B., Respondent-Appellant, and ANGELA C., ABDEL MAHDJID B., and CHARLES A., Respondents, and In the Matter of MAHDJID B. and ALIAH B., Children." ], "opinions": [ { "text": "OPINION\nKENNEDY, Chief Judge.\n{1} In this case of first impression, we hold that a kinship guardian (Guardian), under the Kinship Guardianship Act (the KGA), NMSA 1978, \u00a7\u00a7 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.\n{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.\nI. BACKGROUND\n{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.\n{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, \u00a7\u00a7 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\u2019s 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.\n{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\u2019s parent with no parental rights to terminate, she was not an appropriate party to the termination of parental rights proceedings. CYFD further asserted that \u201c[p]er CYFD policy,\u201d Guardian was not eligible to adopt children or for foster placement. The district court approved CYFD\u2019s proposed change to the permanency plan in its order filed on April 17, 2012.\n{6} Guardian opposed CYFD\u2019s 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 \u201ctemporary\u201d and determined that \u201cit does not divest the parents of . . . rights, [and] it does not vest parental rights in that individual who has been granted temporary kinship guardianship.\u201d 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.\n{7} The record shows that CYFD then filed a motion to terminate the parental rights of Children\u2019s 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.\nII. DISCUSSION\n{8} Guardian\u2019s 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\u2019s kinship guardian, Guardian insists she should be afforded the same or similar due process rights as a biological parent which, in Guardian\u2019s view, meant that she could not be dismissed from the abuse and neglect proceedings without first terminating her rights or revoking her kinship guardianship.\n{9} We first- note that the Act explicitly provides for terminating parental rights, but not kinship guardianships. Section 32A-4-28; NMSA 1978, \u00a7 3.2A-4-29 (2009). Consequently, we hold that, because Guardian\u2019s kinship guardianship cannot be terminated under the Act, and it had not been revoked pursuant to the KGA, Guardian\u2019s 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.\nA. Guardian Possessed Statutory Rights\n{10} Guardian\u2019s 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\u2019t v. Marlene C., 2011-NMSC-005, \u00b6 14, 149 N.M. 315, 248 P.3d 863. The statute or statutes, whose construction is in question, are to \u201cbe read in connection with other statutes concerning the same subject matter}.]\u201d Quantum Corp. v. State Taxation & Revenue Dep\u2019t, 1998-NMCA-050, \u00b6 8, 125 N.M. 49, 956 P.2d 848.\n{11} \u201cThe [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.\u201d Section 40-10B-2(B). Thus, the purposes of the KGA are to:\n(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\n(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\u2019s parents are not willing or able to do so.\nSection 40-10B-2(C). In keeping with its purpose, the KGA provides that \u201c[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.\u201d Section 40-10B-13(A) (emphasis added).\n{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, \u00a7 32A-4-3(B) (2005). Guardians then progress through the case in the same manner as parents. NMSA 1978, \u00a7 32A-4-2 (2009) (definitions); NMSA 1978, \u00a7 32A-4-6 (2009) (including \u201cguardians\u201d when discussing taking children into custody); NMSA 1978, \u00a7 32A-4-7(A) (2009) (release from custody); NMSA 1978, \u00a7 32A-4-22(A)(5), (B)(1), (D) (2009) (dispositional hearings); NMSA 1978, \u00a7 32A-4-25(H)(7) (2009) (treatmentplans); \u00a7 32A-4-25.1(E) (permanency placement). These sections are all concerned with determining whether the child was abused or neglected by his or her caretaker and whether CYFD can reunify the family. However, the Act drops the term \u201cguardian\u201d when dealing with termination of parental rights. Section 32A-4-28; Section 32A-4-29 (mentioning only parents). We presume the term \u201cguardian\u201d was dropped because guardians are not parents, and there are separate, specific statutes for terminating a guardian\u2019s rights.\n{13} A kinship guardian has the statutory \u201clegal rights and duties of a parent except the right to consent to adoption\u201d or any \u201crights and duties that the court orders retained by a parent.\u201d Section 40-10B-13(A). A kinship guardian is therefore entitled to the statutory benefits of the Act, including the right that \u201c[Reasonable efforts shall be made to preserve and reunify the family, with the paramount concern being the child\u2019s health and safety.\u201d Section 32A-4-22(C). Because a kinship guardian may have custody of a child taken away and returned through the Act in the same way as a parent and because of the kinship guardian\u2019s legal status, the kinship guardian has the same right as a parent to be a party in a proceeding to terminate parental rights and to advocate or object to the termination of parental rights based on the best interest of the child until the kinship guardianship is properly terminated. See \u00a7 40-10B-13. In this case, the district court disregarded Guardian\u2019s legal relationship with Children. The record shows the district court assumed that, without any evidence before it, the kinship guardianship was \u201ctemporary\u201d and concluded that \u201cit does not divest the parents of parental rights, [and] it does not vest parental rights in that individual who has been granted temporary kinship guardianship.\u201d While this may be true as to parental rights, Guardian was vested with clearly delineated statutory rights that were not terminated by the Act. The district court erred in concluding that because CYFD had custody of Children and Guardian had no parental rights, she could be dismissed from the case. Its conclusion as to the guardianship\u2019s \u201ctemporary\u201d nature is not supported by either evidence or the KGA.\n{14} The district court recognized that it could not terminate a kinship guardianship that was ordered by another district court judge. The dissent does not presume to create such an ability for the children\u2019s court either. Section 40-1 OB-14 specifically provides that \u201c[t]he court appointing a guardian pursuant to the [KGA] . . . retains continuing jurisdiction of the matter.\u201d One district court judge cannot set aside the order of another district court judge. N.M. Const, art. VI, \u00a7'13 (providing that a district court may not issue an order to a judge or court of equal or superior jurisdiction). If Guardian was somehow unfit to continue, the KGA termination procedure was the sole available route to end her status.\n{15} Without termination, the kinship guardianship continued. Without evidence of any limitations or revocations regarding the kinship guardianship, the district, court\u2019s assumption that any existed was unfounded. CYFD filed its motion to dismiss Guardian and changed the permanency plan to adoption on February 16, 2012. The district court entered a permanency hearing order changing the permanency plan from reunification to adoption on April 17, 2012. Guardian was dismissed from the case on July 2, 2012, and the order of dismissal references hearings in March and May 2012. We presume that CYFD was capable of moving to revoke the kinship guardianship under the KGA when it first took custody of Children two years previously, up to and including when it changed its plan to termination of parental rights and adoption of Children. Section 40-10B-12(A), (B) (establishing the basis upon which kinship guardianships might be terminated). CYFD failed to do so, and the district court specifically declined to alter Guardian\u2019s status under the KGA. Throughout all this time, Guardian remained a kinship guardian to Children and an indispensable and necessary party to the proceedings. The dissent promotes an ad hoc and unauthorized resolution. Here, CYFD bears responsibility for the delay. If the best interests of Children are not met by Guardian, early attention to the KGA is requisite, both for the abuse and neglect case and, as we note below, with regard to later adoption proceedings.\nB. Failure to Terminate Kinship Guardianship Prevents Adoption\n{16} By the court\u2019s order of April 17, 2012, directing that the permanency plan for Children change to adoption, Guardian remained a necessary and indispensable party. An adoption cannot take place while the kinship guardianship still exists. A petition for adoption must allege \u201cthe existence of any court orders, including placement orders, that are known to the petitioner and that regulate custody, visitation},] or access to the adoptee, copies of which shall accompany and be attached to the petition as exhibits}.]\u201d NMSA 1978, \u00a7 32A-5-26(G) (2003). Moreover, the petition must be served upon \u201cthe legally appointed custodian or guardian of the adoptee\u201d unless service \u201chas been previously waived in writing}.]\u201d NMSA 1978, \u00a7 32A-5-27(A)(4) (2001).\nThe notice shall state that the person served shall respond to the petition within twenty days if the person intends to contest the adoption and shall state that the failure to so respond shall be treated as a default and the person\u2019s consent to the adoption shall not be required.\nSection 32A-5-27(E). The response must allege:\n(1) the existence of any court orders known to the respondent that regulate custody, visitation},] or access to the adoptee but have not been filed with the court at the time the response is filed and copies of which shall be attached to the response;\n(2) the relationship, if any, of the respondent to the adoptee[.]\nNMSA 1978, \u00a7 32A-5-28(B) (1993). So long as Guardian\u2019s kinship guardianship was not terminated, she was a necessary and indispensable party to the pending adoption proceeding. Absent termination of the kinship guardianship, we conclude that these statutes give Guardian a right to be heard about whether adoption is in the best interest of Children.\n{17} We conclude that termination of the kinship guardianship must be one of the prerequisites to a valid adoption because of the guardian\u2019s legal relationship to the child. A central purpose of the KGA is \u201cto effect a legal relationship between a child and a kinship caregiver.\u201d Section 40-10B-2(C)(l). The KGA then explicitly states what the relationship is \u2014 a guardian appointed by the district court pursuant to the KGA who has the legal rights and duties of a parent with exceptions that are not applicable here. Since the result of an adoption is the creation of the legal relationship of parent and child, NMSA 1978, \u00a7 32A-5-37(B) (2005), any existing kinship guardianship relation with children must necessarily be terminated before the adoption can be completed. Hence, the proscription that an adoption can only be granted if \u201call necessary consents, relinquishments, terminations},] or waivers have been obtained}.]\u201d NMSA 1978, \u00a7 32A-5-36(F)(3) (2003).\n{18} Even if the adoption takes place under the authority of the Act, the foregoing requirements must be satisfied. Section 32A-4-28(F) states, in part:\nIf the court finds that parental rights should be terminated; that the requirements for the adoption of a child have been satisfied; that the prospective adoptive parent is a party to the action; and that good cause exists to waive the filing of a separate petition for adoption, the court may proceed to grant adoption of the child, absent an appeal of the termination of parental rights.\n(Emphasis added.) Thus, we conclude that, because the permanency plan included a proposed adoption, Guardian remained a necessary and indispensable party to the abuse and neglect case, so long as her kinship guardianship remained in effect. Termination of a kinship guardianship under the KGA is equally necessary as termination of parental rights under the Act. Under the existing statutory scheme, the kinship guardianship must be terminated in accordance with the procedure set forth urSection 40-10B-12(B). The KGA is specific when it states that \u201c}t]he court appointing a guardian pursuant to the [KGA] retains continuing jurisdiction of the matter.\u201d Section 40-1 OB-14. The district court erred in this case when Guardian was involuntarily dismissed from the case without the kinship guardianship first being terminated as provided in the KG A.\nC. Due Process\n{19} Guardian\u2019s second argument is that CYFD\u2019s policy of not considering her as an adoptive or foster parent based on her plea of no contest at the abuse and neglect proceeding violates due process principles. As we are reversing on other grounds favorable to Guardian, we need not and do not consider this argument.\nIII. CONCLUSION\n{20} The district court erred in dismissing Guardian from the proceedings while she remained the kinship guardian of Children because she was a necessary and indispensable party to the pending case. We therefore reverse the district court\u2019s dismissal of her as a party respondent in the abuse and neglect act and reverse all subsequent orders entered in the case in proceedings that took place without notice first having been provided to Guardian. We remand this matter to the district court to reinstate Guardian as a party respondent in the matter and for further proceedings in accordance with law. See Chris & Christine L. v. Vanessa O., 2013-NMCA-107, 320 P.3d 16 (No. 32,193, Aug. 20, 2013) (holding that remand for a new tidal under abuse and neglect act might be required to correct deprivation of party\u2019s rights).\n{21} IT IS SO ORDERED.\nRODERICK T. KENNEDY, Chief Judge\nI CONCUR:\nMICHAEL E. VIGIL, Judge\nJONATHAN B. SUTIN, Judge (dissenting)\nWe note that this policy, though irrelevant to the proceedings at hand, was not asserted to bo based on any external authority.", "type": "majority", "author": "KENNEDY, Chief Judge." }, { "text": "SUTIN, Judge\n(dissenting).\n{22} I respectfully dissent. I would affirm the district court\u2019s order dismissing Guardian from the abuse and neglect proceedings.\n1. Introductory Clarifications\n{23} Two divisions of the Second Judicial District Court are at play in regard to the dismissal issue on appeal. See LR2103(A)(1), (4) (stating that the Second Judicial District Court judges and clerks are divided into four courts, two of which are the children\u2019s court and the domestic relations court, and enumerating the cases within the purview of each court). The children\u2019s court division handles Children\u2019s Code abuse and neglect proceedings. See \u00a7 32A-1-4(C) (stating that within the context of the Children\u2019s Code, \u201ccourt\u201d means the children\u2019s court division of the district court); \u00a7 32A-1-8(C) (stating that the children\u2019s court shall have jurisdiction to decide all matters incident to the children\u2019s court proceedings). The domestic relations division of the district court handles, with enumerated exceptions not relevant here, \u201call cases of a domestic relations nature}.]\u201d LR2-103(A)(4) NMRA. Chapter 40 of New Mexico\u2019s statutes, entitled Domestic Affairs, includes the KG A within Article 10B. Thus, the domestic relations division of the district court handles guardianship proceedings, including appointment of a guardian under the KG A. See \u00a7 40-1 OB-7 (governing the appointment of a kinship guardian); \u00a7 40-10B-14 (\u201cThe court appointing a guardian pursuant to the [KGA] retains continuing jurisdiction ofthe matter.\u201d). In Abuse and Neglect Act proceedings, the children\u2019s court has jurisdiction over guardians appointed under the KGA. See \u00a7 32A-1 -8(A)(3), (4) (stating that the children\u2019s court has exclusive original jurisdiction of all proceedings under the Children\u2019s Code in which a child is alleged to be abused or neglected); \u00a7 32A-1-8(C) (stating that in abuse and neglect proceedings, the children\u2019s court has \u201cjurisdiction over both parents to determine the best interest of the child and to decide all matters incident to the court proceedings\u201d); \u00a7 32A-1-4(I) (defining \u201cguardian\u201d within the context of the Children\u2019s Code, in relevant part, as \u201ca person appointed as a guardian by a court\u201d).\n2. Clarification Regarding Guardian\u2019s Appeal\n{24} In the proceedings under the Act, on September 3, 2010, Guardian pleaded no contest to the allegations against her in the abuse and neglect petition. On September 17, 2010, the children\u2019s court entered a stipulated judgment and disposition holding that as to Guardian, Children were neglected children as defined in the Children\u2019s Code. Guardian did not then and does not now appeal that order.\n{25} On April 17, 2012, the children\u2019s court ordered the permanency plan for Children to be changed from reunification to adoption. In its April 17, 2012, order, the children\u2019s court found, among other things, that Guardian had \u201cnot made diligent sufficient efforts to comply with and cooperate in the treatment plan ordered by the [cjourt\u201d; she had \u201cnot made sufficient progress toward alleviating the causes necessitating the removal of. . . [CJhildren\u201d; Children\u2019s \u201cbest interests will be served by maintaining custody with [CYFD] and implementing a further treatment plan to promote the possible adoption of... [CJhildren\u201d; and \u201c[t]here is no evidence to indicate that [Guardian was] . . . equipped to take custody of. . . [C]hildren.\u201d Guardian was a party to the abuse and neglect case when this order was entered; however, Guardian did not then and does not now appeal that order.\n{26} On July 2, 2012, the children\u2019s court entered an order dismissing Gixardian from the abuse and neglect case. Guardian appeals exclusively from this order.\n{27} On July 26, 2012, CYFD filed a motion for open adoption mediation. In this appeal, Guardian does not raise any argument in regard to the motion for open adoption mediation. Nor does Guardian base her appeal on any alleged deprivation of her rights under the Adoption Act. See generally NMSA 1978, \u00a7\u00a7 32A-5-1 to -45 (1993, as amended through 2012).\n{28} Guardian raises two issues on appeal. First, Guardian argues that the children\u2019s court erred in dismissing her from the abuse and neglect case without first affording her the process due a parent under Sections 32A-4-28 and 32A-4-29, governing the termination of parental rights or, alternatively, without first revoking her guardianship relationship under Section 40-10B-12, governing the revocation of a kinship guardianship. Second, Guardian argues that because she \u201cserved as Children\u2019s parent for more than three years before the filing of the petition\u201d she \u201cshould be afforded the same or similar due process rights as a biological parent.\u201d\n3. The Termination of Parental Rights Laws Do Not Apply to Guardian\n{29} The Children\u2019s Code defines a \u201cguardian\u201d as \u201ca person appointed as a guardian by a court or Indian tribal authority or a person authorized to care for the child by a parental power of attorney as permitted by law[.]\u201d Section 32A-1-4(I). The Children\u2019s Code defines a \u201cparent\u201d as \u201ca biological or adoptive parent if the biological or adoptive parent has a constitutionally protected liberty interest in the care and custody ofthe child[.]\u201d Section 32A-1-4(P); see State ex rel. Children, Youth & Families Dep\u2019t v. Ruth Anne E., 1999-NMCA-035, \u00b6 10, 126 N.M. 670, 974 P.2d 164 (recognizing that natural parents have a \u201cfundamental liberty interest. . . in the care, custody, and management of their child[ren]\u201d (internal quotation marks and citation omitted)). Thus, under the Children\u2019s Code, a guardianship is a legally cognizable relationship; however, it is controlled and delimited by a court or by the child\u2019s parent(s). Unlike a parent-child or adoptive parent-child relationship, nothing in the Kinship Guardianship Act, the Children\u2019s Code, or our case law provides that a guardian has a constitutionally protected liberty interest in regard to the children to whom she is guardian. Nor, in this case, does Guardian provide any authority to support a conclusion that she had a constitutionally protected liberty interest in Children.\n{30} Because aparenthas ajudicially and legislatively recognized constitutionally protected liberty interest in his or her child, the children\u2019s court cannot terminate the parent-child relationship without affording the parent due process. Ruth Anne E., 1999-NMCA-035, \u00b6 10. The process due a parent in terms of terminating parental rights to a child is outlined in Sections 32A-4-28 and - 29. Sections 32A-4-28 and -29 do not apply to guardians. That Sections 32A-4-28 and-29 apply to parents but not to guardians may be fairly construed as an implicit statement by the Legislature that the process due a parent is not due a guardian because a guardian has no constitutionally protected interest in the child. Thus, Guardian\u2019s argument, in this case, that she should not have been dismissed from the case without first having had her rights terminated pursuant to Sections 32A-4-28 and -29, is legally unfounded.\n4. Guardian\u2019s Rights as to Children Were Adjudicated by the Children\u2019s Court\n{31} I disagree with Guardian and the majority that the children\u2019s court could not dismiss Guardian from the case until the kinship guardianship was formally revoked pursuant to Section 40-1 OB-12 by the district court that appointed Guardian. Opinion \u00b6 9. See \u00a7 40-10B-12 (authorizing the court to revoke a guardianship created under the KGA); \u00a7 40-1 OB-14 (stating that \u201c[t]he court appointing a guardian pursuant to the [KGA] retains continuing jurisdiction of the matter\u201d). Pursuant to Section 40-10B-13(A), Guardian had the \u201clegal rights and duties of a parent except the right to consent to adoption of the child[.]\u201d Thus, Guardian had the legal right to care and custody of Children. Cf. \u00a7 32A-1-4(P) (stating that a parent\u2019s interest in a child is one of care and custody). Yet the right of a parent to the care and custody-of his or her children is not absolute; it is subject to the district courts\u2019 authority, pursuant to the Abuse and Neglect Act, of being interrupted and, under certain circumstances, terminated. See State v. Sanders, 1981-NMCA-053, \u00b6 12, 96 N.M. 138, 628 P.2d 1134 (stating that parents do not have an absolute right to the custody of their children); see also \u00a7 32A-4-6 (permitting the CYFD to take custody of a child); \u00a7\u00a7 32A-4-28, -29 (permitting district courts to terminate parental rights). By extension, neither does a guardian have an absolute right to care and custody of a child.\n{32} Guardian was stripped of her right to custody of Children when she was adjudicated to have neglected Children, and Children were ordered to remain in the legal custody of CYFD. See \u00a7 32A-l-4(0) (stating that \u201clegal custody\u201d includes, among other things, \u201cthe right to determine where and with whom a child shall live[,] the right and duty to protect, train},] and discipline the child and to provide the child with food, shelter, personal care, education},] and ordinary and emergency medical care\u201d). Thereafter, CYFD, in its capacity as Children\u2019s legal custodian, worked with Guardian toward reunification with Guardian; however, in spite of CYFD\u2019s efforts, reunification of Children with Guardian was ultimately determined by CYFD and by the court not to be in Children\u2019s best interests. As such, the children\u2019s court determined that adoption was the most appropriate permanency plan for Children. The children\u2019s court\u2019s adjudications in regard to Guardian\u2019s neglect and custody rights, together with changing Children\u2019s permanency plan to adoption, rather than reunification with Guardian, was not only authorized under the Act, it effectively and lawfully terminated Guardian\u2019s kinship guardianship rights of custody and care and was tantamount to a revocation of those care and custody rights, because it constituted formal recognition of the fact that Guardian, by her own actions and failures, no longer had a right to care and custody of Children. Thus, whether or not the children\u2019s court could formally revoke the kinship guardianship, absent the right to care and custody of Children, the kinship guardianship was lawfully reduced to a nominal relationship, to be revoked, if necessary, in an ancillary proceeding before the domestic relations division of the district court.\n{33} The permanency plan having been changed from reunification to adoption, CYFD moved to dismiss Guardian from the abuse and neglect proceedings. In its dismissal motion, CYFD stated, in part, that it was \u201cfiling a motion for [termination of [pjarental [rjights and [Guardian] does not have parental rights to terminate and will not benefit from following a treatment plan and whether she follows a treatment plan does not affect the final permanency for . . . [Cjhildren\u201d because \u201c[Cjhildren cannot be safe with [Guardian].\u201d Children\u2019s guardian ad litem concurred in CYFD\u2019s motion. After taking evidence and hearing testimony over the course of a two-day hearing on CYFD\u2019s motion to dismiss, the children\u2019s court granted the motion.\n{34} The practical effect of the dismissal of Guardian was to alleviate CYFD of any obligation to provide Guardian with a treatment plan and the related assistance in achieving the treatment goals. Guardian has not shown any further practical effect of her dismissal from the abuse and neglect proceedings, nor has the majority done so. Having ultimately determined that reunification with Guardian was not a viable permanency plan, a determination that Guardian has not appealed or shown to be error, requiring CYFD to continue to implement a treatment plan for Guardian would be of no benefit to Children, and it would require CYFD to expend time and other resources on Guardian to no avail. There no longer existed any question as to Guardian\u2019s right to continue care and custody of Children.\n{35} Further, as CYFD moved toward its next step, which was to terminate the parental rights of Children\u2019s biological parents,1 see no rational or practical legal basis on which to hold that Guardian had a right to continue as a party to that proceeding. As demonstrated earlier, Sections 32A-4-28 and -29, governing the termination of parental rights, did not apply to Guardian. Guardian became superfluous in the proceedings to terminate the biological parents\u2019 parental rights to Children and to move into a permanency plan for adoption. Any care and custody rights Guardian may have had were lawfully eliminated pursuant to the children\u2019s court\u2019s authority under the Act.\n5. The Children\u2019s Court\u2019s Ruling Prevented Unnecessary, Undesirable Delay\n{36} The parties and Children will be adversely affected by the majority\u2019s holding that \u201cthe order dismissing Guardian and all subsequent orders entered without notice to her must be reversed.\u201d Opinion \u00b6 2. To hold that Guardian may not be dismissed from the case until the guardianship is revoked will result in further delay, indefinite limbo for Children, and inappropriate further proceedings, all to Children\u2019s detriment. Children will be adversely affected by the delay that results from the pendency of the children\u2019s court proceedings awaiting a revocation proceeding in the domestic relations court. One must also consider the delay that could result from a potential appeal from the revocation determination. While these court proceedings are ongoing, Children will be haunted with uncertainty and deprived of permanency and stability. See State ex rel. Children, Youth & Families Dep't v. Mafin M., 2003-NMSC-015, \u00b6 24, 133 N.M. 827, 70 P.3d 1266 (\u201c[I]t is important for children to have permanency and stability in their lives, [therefore] termination proceedings should not continue indefinitely.\u201d). In weighing the potential harm to the dismissed Guardian versus the indeterminant, in-limbo status of Children, the scale dips heavily in favor of Children. The children\u2019s court\u2019s adjudications regarding Guardian stand. They cannot be ignored. Their factual and legal validity has not been attacked on appeal. As a matter of policy, if not res judicata, the adjudications put an end to Guardian\u2019s right to custody of and to provide care to Children. Cf. Pielhau v. State Farm Mut. Auto. Ins. Co., 2013-NMCA-112, \u00b6\u00b6 7 n.1, 8, 314 P.3d 698 (stating that res judicata, which term encompasses both issue and claim preclusion, bars re-litigation of claims or issues that were finally adjudicated on the merits in an earlier action, involve the same parties, and involve the same cause of action). There exists little, if any, reason to dwell on a formal KGA revocation process at this point, particularly in light of the facts that Guardian has been adjudicated neglectful of Children and that the children\u2019s court has determined that Children\u2019s best interests will be served by continued departmental custody and potential future adoption. These un-appealed adjudications may be judicially noticed by and should be binding on the domestic relations court, causing and, if necessary, requiring that court to revoke the kinship guardianship. The majority opinion gives no reason other than form or technicality over substance to reverse every order entered by the children\u2019s court after Guardian was dismissed, returning the abuse and neglect proceedings to a preparental rights termination status, merely to force CYFD to pursue a formal revocation in the domestic relations court of the guardianship pursuant to the KGA.\n6. Guardian\u2019s Due Process Contention Has No Merit\n{37} Guardian argues that having \u201cserved as Children\u2019s parent for more than three years\u201d before the abuse and neglect petition was filed, she \u201cshould be afforded the same or similar due process rights as a biological parent.\u201d Further, Guardian observes that the non-precedential lead opinion in In re Guardianship of Victoria R. recognized that \u201ca growing number of jurisdictions . . . provide legal recognition and protection to psychological parent-child (or equivalent) relationships.\u201d 2009-NMCA-007, \u00b6 15, 145 N.M. 500, 201 P.3d 169; see id. \u00b6 23 (Pickard, J., special concurrence). Guardian concludes her due process argument by stating that \u201cdue process requires any dismissal of Guardian from the abuse/neglect proceedings comport with the procedures set forth in the [Kinship Guardianship Act] and in the [Abuse and Neglect] Act.\u201d\n{38} For the reasons set out earlier in this dissent, Guardian\u2019s contention that she could not be dismissed from this case unless she was afforded a termination of parental rights hearing or until her guardianship was revoked, is unavailing. So too is Guardian\u2019s observation that some courts have recognized \u201cpsychological parent-child\u201d relationships. It is not accompanied by an argument demonstrating how the notion of a psychological parent-child relationship applies here, or how the argument has constitutional significance. Nor is it accompanied by \u00e1 citation to evidence in the record demonstrating that such a relationship was established between her and Children in this case. Finally, although Guardian cites the due process balancing factors applicable to the question whether a parent\u2019s due process rights were protected in the termination of parental rights proceedings, she does not develop an argument demonstrating how those factors apply here. See Mafin M., 2003-NMSC-015, \u00b6\u00b6 17, 19 (stating that, in determining whether due process was satisfied in a termination proceeding, the appellate courts consider (1) the parent\u2019s interest; (2) \u201cthe risk to [the parent] of an erroneous deprivation through the procedures used\u201d; (3) \u201cthe probable value, if any, of additional or substitute procedural safeguards\u201d; and (4) \u201cthe government\u2019s interest\u201d). Guardian\u2019s undeveloped arguments provide no basis for reversal. State ex rel. Children, Youth & Families Dep\u2019t v. Marsalee P., 2013-NMCA-062, \u00b6 20, 302 P.3d 761 (recognizing that this Court does not review unclear or undeveloped arguments).\n7. The Majority Opinion\u2019s Holding in Regard to Adoption\n{39} As the case moves forward, assuming that CYFD succeeds in its motion to terminate the rights of both of Children\u2019s biological parents, and further assuming CYFD succeeds in finding potential adoptive parents, CYFD will, pursuant to the court-approved permanency plan, move toward adoption proceedings. See \u00a7\u00a7 32A-5-17(A)(2), (4)-(5), 32A-5-19(A) (stating that as a prerequisite to adoption, a child\u2019s mother and father must consent to the adoption or relinquish their parental rights to a child, but consent or relinquishment is not required when the parents\u2019 rights in regard to the child have been terminated). The record does not reflect the stage of any adoption-related proceedings. The majority\u2019s discussion of the prospective adoption is hypothetical and goes not only beyond the issues raised by Guardian but also beyond the issues in this case.\n{40} Adoption proceedings are governed by the Adoption Act. See \u00a7\u00a7 32A-5-1 to -45; see also \u00a7 32A-4-28(F) (stating that pursuant to the Act, if a parent\u2019s parental rights are terminated, there is no appeal from that termination, and the requirements of the Adoption Act are satisfied, the children\u2019s court may enter an adoption decree to take effect sixty days after the termination of parental rights). Here, the adoption process will presumably begin with CYFD placing Children in the home of the prospective adoptive parent(s). Section 32A-5-12(A)(l) (\u201cNo petition for adoption shall be granted by the [domestic relations] court unless the adoptee was placed in the home of the petitioner for the purpose of adoption ... by [CYFD.]\u201d). Within 120 days of the placement, the prospective adoptive parent(s) must petition the domestic relations court for adoption. Section 32A-5-25(A) (governing the time for filing a petition for adoption); \u00a7 32A-5-26 (stating the required contents of the petition for adoption).\n{41} The petition for adoption must be served on a number of people, including \u201cthe legally appointed . . . guardian of the adoptee[.]\u201d Section 32A-5-27(A)(4). Proof of service of the notice on all persons for whom notice is required, including a legally appointed guardian, shall be filed with the court before any hearing adjudicating the rights of that person. Section 32A-5-27(I). A person who has been served with a petition for adoption and wishes to respond to it by contesting the adoption has twenty days to do so. Section 32A-5-27(E). The children\u2019s court \u201cshall conduct hearings on the petition for adoption so as to determine the rights of the parties}.]\u201d Section 32A-5-36(A). \u201cThe court shall grant a decree of adoption if it finds that the petitioner has proved by clear and convincing evidence that[, among other things,] all necessary consents, relinquishments, terminations[,] or waivers have been obtained[.]\u201d Section 32A-5-36(F)(3).\n{42} In this case, the majority holds that \u201c[a]n adoption cannot take place while the kinship guardianship still exists.\u201d Opinion \u00b6 16. In my view, this holding is problematic for three reasons. First, the holding addresses a legal issue of first impression that was not raised or considered in the children\u2019s court, nor was it briefed by the parties, and is, therefore, not properly before this Court. Second, the holding is not clearly supported by the Adoption Act, nor is it clearly supported by the KGA.\n{43} The KGA provides that a kinship guardian does not have the right to consent to adoption of a child. Section 40-10B-13(A). Whether this provision should be interpreted as standing for the converse proposition that a kinship guardian does not have the right to contest an adoption is not at issue in this appeal and is not analyzed by the majority. Thus, I leave this question of legislative intent for another day when it may be properly preserved, researched, and analyzed. Further, although the Adoption Act gives a guardian a right to contest an adoption, there is no indication in that Act that the court would be prohibited by the guardian\u2019s contestation from granting a decree of adoption. Nor is there any clear indication in the Adoption Act that the legal relationship created by a kinship guardianship order must be revoked prior to an adoption decree. Relying on Section 32A-5-36(F)(3), the majority observes that \u201call necessary consents, relinquishments, terminations},] or waivers\u201d must be obtained before an adoption decree may be entered; however, the majority\u2019s assumption that the revocation of a kinship guardianship comes within this category is unsupported by authority or analysis. Without more, I do not assume that the kinship guardianship stands in the way of an adoption that is in the best interests of the adoptees. See \u00a7 32A-5-36(F)(7) (stating that the court shall grant a decree of adoption if it finds that the petitioner has proved by clear and convincing evidence that \u201cthe petitioner is a suitable adoptive parent and the best interests of the adoptee are served by the adoption\u201d).\n{44} Third, I see no basis on which to reverse any of the children\u2019s court\u2019s orders in the abuse and neglect case on the basis of the court\u2019s order changing Children\u2019s permanency plan from reunification to adoption. Guardian did not appeal the children\u2019s court\u2019s order in that regard, and it has no bearing on the yet-to-occur adoption proceedings. As stated earlier in this dissent, adoptions are governed by the Adoption Act. The Adoption Act requires the prospective adoptive parents to serve notice of the adoption petition upon guardians, including those appointed under the KGA, and to file proof of service with the court demonstrating that the guardian was served with the notice. Sections 32A-5-27(A)(4), (I). A court-appointed guardian is not precluded in a separate Adoption Act proceeding to state his or her views in regard to adoption. When and if CYFD succeeds in finding adoptive parents for Children, if the strictures of the Adoption Act are not followed, Guardian may take steps to remedy that illegality. We should not assume, without any evidence to the effect, that Guardian\u2019s rights under the Adoption Act will be overlooked or violated or that her dismissal from the abuse and neglect proceedings has any effect on the future adoption proceedings.\nCONCLUSION\n{45} I would affirm the children\u2019s court\u2019s order.\nJONATHAN B. SUTIN, Judge\nAt the time that this Opinion was filed, the parental rights of Children\u2019s biological father had been terminated by the district court. The majority\u2019s holding will cause the district court\u2019s order in that regard to be reversed. Opinion \u00b6 2.\nGuardian does not cite the Adoption Act in either of her briefs, nor does she develop an argument regarding the implications of dismissal from the abuse and neglect case as it relates to the adoption issue.", "type": "dissent", "author": "SUTIN, Judge" } ], "attorneys": [ "Children, Youth and Families Department Charles E. Neelley, Chief Children\u2019s Court Attorney Rebecca J. Liggett, Children\u2019s Court Attorney Santa Fe, NM for Appellee", "Lopez & Salcura, LLP Julie Salcura Santa Fe, NM for Appellant", "Patricia Anderson Bosque Farms, NM Guardian ad Litem" ], "corrections": "", "head_matter": "Certiorari Granted, April 9, 2014,\nNo. 34,583\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-045\nFiling Date: February 10, 2014\nDocket No. 32,333\nSTATE OF NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Appellee, v. DJAMILA B., Respondent-Appellant, and ANGELA C., ABDEL MAHDJID B., and CHARLES A., Respondents, and In the Matter of MAHDJID B. and ALIAH B., Children.\nChildren, Youth and Families Department Charles E. Neelley, Chief Children\u2019s Court Attorney Rebecca J. Liggett, Children\u2019s Court Attorney Santa Fe, NM for Appellee\nLopez & Salcura, LLP Julie Salcura Santa Fe, NM for Appellant\nPatricia Anderson Bosque Farms, NM Guardian ad Litem" }, "file_name": "0708-01", "first_page_order": 724, "last_page_order": 737 }