{ "id": 1594961, "name": "STATE of New Mexico, ex rel. DEPARTMENT OF HUMAN SERVICES, Petitioner, v. Kathy Latham AVINGER, Respondent", "name_abbreviation": "State ex rel. Department of Human Services v. Avinger", "decision_date": "1986-05-19", "docket_number": "No. 16134", "first_page": "255", "last_page": "265", "citations": [ { "type": "official", "cite": "104 N.M. 255" }, { "type": "parallel", "cite": "720 P.2d 290" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "437 So.2d 122", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7619488 ], "weight": 3, "pin_cites": [ { "page": "126" }, { "page": "125" }, { "page": "126" } ], "opinion_index": 0, "case_paths": [ "/so2d/437/0122-01" ] }, { "cite": "68 L.Ed.2d 289", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1981, "pin_cites": [ { "parenthetical": "preemption may be inferred where there is a direct and positive conflict or repugnancy between state and federal laws" } ], "opinion_index": 0 }, { "cite": "101 S.Ct. 1966", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1981, "pin_cites": [ { "parenthetical": "preemption may be inferred where there is a direct and positive conflict or repugnancy between state and federal laws" } ], "opinion_index": 0 }, { "cite": "451 U.S. 901", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6192704, 6192900, 6193350, 6193574, 6193743, 6193146 ], "year": 1981, "pin_cites": [ { "parenthetical": "preemption may be inferred where there is a direct and positive conflict or repugnancy between state and federal laws" } ], "opinion_index": 0, "case_paths": [ "/us/451/0901-01", "/us/451/0901-02", "/us/451/0901-04", "/us/451/0901-05", "/us/451/0901-06", "/us/451/0901-03" ] }, { "cite": "276 N.W.2d 472", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1978, "pin_cites": [ { "page": "474-75" } ], "opinion_index": 0 }, { "cite": "87 Mich.App. 706", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2182341 ], "year": 1978, "pin_cites": [ { "page": "711-12" } ], "opinion_index": 0, "case_paths": [ "/mich-app/87/0706-01" ] }, { "cite": "620 P.2d 11", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10441889 ], "weight": 3, "pin_cites": [ { "page": "14" }, { "page": "14" }, { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/p2d/620/0011-01" ] }, { "cite": "66 Minn.L.Rev. 711", "category": "journals:journal", "reporter": "Minn. L. Rev.", "year": 1982, "pin_cites": [ { "page": "863" } ], "opinion_index": 0 }, { "cite": "76 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8500300 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0001-01" ] }, { "cite": "98 N.M. 685", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582547 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/98/0685-01" ] }, { "cite": "97 N.M. 327", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555160 ], "weight": 2, "year": 1981, "pin_cites": [ { "parenthetical": "stating that the PKPA preempts the ability of New Mexico courts to modify an out-of-state child custody decree" }, { "parenthetical": "stating that the PKPA preempts the ability of New Mexico courts to modify an out-of-state child custody decree" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0327-01" ] }, { "cite": "100 N.M. 773", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588656 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/100/0773-01" ] }, { "cite": "98 N.M. 648", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582504 ], "weight": 4, "year": 1982, "pin_cites": [ { "page": "651" }, { "page": "1295" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0648-01" ] }, { "cite": "98 N.M. 644", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582474 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/98/0644-01" ] }, { "cite": "696 P.2d 254", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10411150 ], "weight": 3, "pin_cites": [ { "page": "263" }, { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/p2d/696/0254-01" ] }, { "cite": "94 N.M. 306", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573074 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/94/0306-01" ] }, { "cite": "330 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 354099 ], "weight": 3, "year": 1947, "opinion_index": 0, "case_paths": [ "/us/330/0610-01" ] }, { "cite": "96 N.M. 155", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577300 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "198" }, { "page": "274" }, { "page": "199" }, { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0155-01" ] }, { "cite": "97 N.M. 365", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555149 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/97/0365-01" ] }, { "cite": "98 N.M. 8", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582448 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/98/0008-01" ] }, { "cite": "104 N.M. 355", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594922 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/104/0355-01" ] } ], "analysis": { "cardinality": 1118, "char_count": 36008, "ocr_confidence": 0.799, "pagerank": { "raw": 2.5846296091363927e-07, "percentile": 0.8175331843671195 }, "sha256": "3fb7023d514ec7cfddaec5b5308fb5906f958b7a21be00a3b15b15c165963b7b", "simhash": "1:3ecc179e74fa2ce0", "word_count": 5858 }, "last_updated": "2023-07-14T22:33:25.530063+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RIORDAN, C.J., SOSA, Senior J., and STOWERS, J., concur.", "WALTERS, J., concurs in part, dissents in part." ], "parties": [ "STATE of New Mexico, ex rel. DEPARTMENT OF HUMAN SERVICES, Petitioner, v. Kathy Latham AVINGER, Respondent." ], "opinions": [ { "text": "OPINION\nFEDERICI, Justice.\nThe Department of Human Services (DHS) filed a child neglect petition against Kathy Latham Avinger (Avinger) under the Children\u2019s Code, NMSA 1978, Sections 32-1-1 to -53 (Repl.Pamp.1981) on November 6, 1984. Avinger raised jurisdictional issues under New Mexico\u2019s Child Custody Jurisdiction Act (CCJA), NMSA 1978, Sections 40-10-1 to -24 (Repl.Pamp.1983), based on the fact that she had been awarded custody of the subject children under a Texas divorce decree. No party raised or briefed the application of the federal Parental Kidnaping Prevention Act (PKPA), 28 U.S.C. Section 1738A (1982) to the facts of this case. DHS had obtained custody of the children by an ex parte order on November 5, 1984. After a temporary custody hearing on the November 6, 1984 neglect petition, the children\u2019s court found probable cause for neglect and abandonment and continued custody of the children in DHS by its order of December 11, 1984. An adjudicatory hearing was held on January 4, 1985. The children\u2019s court findings and conclusions were filed on February 1, 1985. The trial court held that it had jurisdiction under Section 32-1-9 of the Children\u2019s Code.\nThe Court of Appeals reversed the children\u2019s court, 104 N.M. 355, 721 P.2d 781, notwithstanding DHS position that the lower court had jurisdiction under Section 40-10-4(A)(3) of the CCJA to act in an emergency to protect children present in New Mexico. The Court of Appeals held that the CCJA provision relating to modification of custody decrees, Section 40-10-15(A), and the definitions of \u201ccustody determination\u201d and \u201cmodification decree,\u201d Section 40-10-3(B) & (G), applied to a child neglect proceeding and therefore the children\u2019s court was required to defer to the jurisdiction of the Texas divorce court. The Court of Appeals decision upheld the children\u2019s court ex parte custody order of November 5,1984, and the temporary custody order of December 11, 1984, both of which were made under the authority of Section 40-10-4(A)(3), but vacated the adjudicatory order of February 1,1985. The Court of Appeals premised its conclusion on the basis that the PKPA (federal act) applied to this proceeding even if Section 40-10-15(A) did not apply and that the application of federal law limited the authority of the children\u2019s court. We reverse the Court of Appeals opinion on the applicability of the PKPA.\nThe questions presented for review are: (1) whether the Court of Appeals correctly extended the PKPA to cover \u201cchild neglect and dependency proceedings\u201d under the CCJA; and (2) whether the Court of Appeals misapplied the limitations of Section 40-10-15(A) to the emergency jurisdiction provision of Section 40-10-4(A)(3)(b). These are questions of first impression in New Mexico.\nI. Does the PKPA Cover and Preempt \u201cChild Neglect and Dependency Proceedings\u201d Under the CCJA.\nThis Court has held that the PKPA applies in child custody disputes across between parents across state lines and that New Mexico courts must apply the PKPA in such cases. Tufares v. Wright, 98 N.M. 8, 644 P.2d 522 (1982); Belosky v. Belosky, 97 N.M. 365, 640 P.2d 471 (1982). This Court to date has not addressed the issue of the application of the PKPA to child neglect and dependency proceedings.\nThe PKPA is largely a selective incorporation of the model Uniform Child Custody Jurisdiction Act. See Parental Kidnaping Prevention Act: Joint Hearings on S.105 Before the Subcomm. on Criminal Justice of the Senate Comm. on the Judiciary and the Subcomm. on Child and Human Development of the Senate Comm. on Labor and Human Resources, 96th Cong., 2d Sess. 48 (1980) (hereinafter PKPA Senate Hearings). New Mexico\u2019s CCJA is also derived from the model act and it is similar to the federal PKPA. A similarity exists between 28 U.S.C. Section 1738A(f) and Section 40-10-15(A) of the CCJA. However, the definitional sections of the federal act and the state act differ in a significant respect that is fundamental to the issues presented here. The state act specifically includes \u201cchild neglect and dependency proceedings\u201d as part of the definition of \u201ccustody proceeding.\u201d \u00a7 40-10-3(C). On the other hand, the PKPA definitional section does not include \u201cchild neglect and dependency proceedings.\u201d See 28 U.S.C. \u00a7\u00a7 1738A(b)(1)-(8).\nIt was error for the Court of Appeals in its preemption analysis to hold that the PKPA preempts the CCJA with respect to child neglect and dependency proceedings. There is no basis in the express language of the federal act to conclude that there is preemption of state law on this subject matter. See United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 198, 629 P.2d 231, 274 (1980). Furthermore, the legislative history of the PKPA demonstrates that the primary purpose of the PKPA is to prevent \u201cchild snatching\u201d by parents across state lines. The PKPA is meant to offer a national solution to the problems of interstate enforcement of custody decrees which are not final orders and therefore not subject to the application of full faith and credit principles. See New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947). See generally PKPA Senate Hearings at 21-51. The history of the PKPA stresses the importance of preventing \u201cchild snatching\u201d and does not contain any reference to child neglect and dependency proceedings. This legislative history demonstrates that there was an absence of Congressional intent to apply the PKPA to child neglect and dependency proceedings. See United Nuclear Corp. v. General Atomic Co.\nWe hold that the PKPA does not preempt the section of the New Mexico CCJA which specifically includes child neglect and dependency proceedings, where the PKPA is silent with reference to such child neglect and dependency proceedings. We reverse the Court of Appeals on this specific issue.\nII. Children\u2019s Court Authority Under the CCJA, Sections 40-10-4(A)(3), 40-10-15, and Section 32-1-9 Under the Children\u2019s Code.\nThe pertinent provisions of Section 32-1-9(A) state that the children\u2019s court \u201chas exclusive original jurisdiction of all proceedings under the Children\u2019s Code in which * * * a child [is] alleged to be * * * a neglected child * * *.\u201d\nSection 40-10-15(A) states:\nA. If a court of another state has made a custody decree, a district court of New Mexico shall not modify that decree unless:\n(1) it appears that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with the Child Custody Jurisdiction Act [40-10-1 to 40-10-24 NMSA 1978] or has declined to assume jurisdiction to modify the decree; and\n(2) the district court of New Mexico has jurisdiction.\nIn this case there is no distinction between \u201cchildren\u2019s court\u201d in Section 32-1-9 and \u201cdistrict court\u201d in Section 40-10-15. The children\u2019s court is a division of the district court. See \u00a7 32-l-3(C) and In re Guardianship of Arnall, 94 N.M. 306, 610 P.2d 193 (1980).\nDHS claims that the limitation on the exercise of jurisdiction stated in Section 40-10-15(A) does not apply when the state initiates proceedings under Section 32-1-9(A). We disagree. Section 40-10-15(A) refers to the modification of a custody decree of another state. The children\u2019s court proceeding in New Mexico involved the modification of a custody decree entered in the state of Texas. Section 40-10-3(B) defines a \u201ccustody determination\u201d as \u201ca court decision and court orders and instructions providing for the custody of a child * * *.\u201d Section 40-10-3(G) defines a \u201cmodification decree\u201d as \u201ca custody decree which modifies or replaces a prior custody decree * There is no merit to the claim that there has been no modification of the Texas decree where the order of February 1, 1985 continued custody in DHS. Cf. E.P. v. District Court of Garfield County, 696 P.2d 254, 263 (Colo.1985) (the Colorado court concluded that \u201cthe UCCJA requires the juvenile court to stay any further action on the dependency proceeding and to refer the case to the Wyoming court that entered the original custody decree so that the state of Wyoming can determine whether it will assume jurisdiction over the matter of custody.\u201d).\nSection 40-10-4(A) states four grounds on which a New Mexico court has jurisdiction under the CCJA. Any one of the four grounds is sufficient to grant jurisdiction to a New Mexico court. Olsen v. Olsen, 98 N.M. 644, 651 P.2d 1288 (1982).\nDHS states that the children\u2019s court had jurisdiction under Section 40-10-4(A)(3) because the children were physically present in New Mexico and because the children\u2019s court found that the children had been abandoned. The limitation on the authority of the children\u2019s court to modify another state\u2019s custody decree applies when the state seeks that modification under Section 40-10-4(A)(3). Section 40-10-15(A)(2) states that the district court may not modify a custody decree of another state unless the district court has jurisdiction. We agree that the children\u2019s court, as a division of the district court, had jurisdiction. This, however, does not meet the requirement that the New Mexico court \u201cshall not modify\u201d the decree of another state unless the requirements of Section 40-10-15(A)(l) are met. The fact that the children\u2019s court had jurisdiction does not answer the question of whether the New Mexico court had authority to modify the Texas decree.\nThe New Mexico decisions made under the CCJA have involved custody disputes between parents located in different states. Olsen v. Olsen; Serna v. Salazar, 98 N.M. 648, 651 P.2d 1292 (1982); Hester v. Hester, 100 N.M. 773, 676 P.2d 1338 (Ct.App.1984). DHS asserts that the provisions of the CCJA which are applicable to custody disputes between parents are not applicable to custody proceedings authorized by child neglect statutes where the state is a party. New Mexico, through its DHS, has obtained a court order awarding it custody of the children of a Texas resident to whom a Texas court had previously awarded custody. New Mexico obtained that order on the basis of Section 40-10-4(A)(3), which gives New Mexico district courts jurisdiction to determine custody when the child is physically present in New Mexico and the child has been abandoned or an emergency situation exists because the child, as in this case, has been neglected. When a state court proceeds under the abandonment or emergency provisions of Section 40-10-4(A)(3), the court\u2019s jurisdiction to modify another state\u2019s custody decree is limited by Section 40-10-15(A).\nAlthough the CCJA applies to the state, DHS contends that the primary purpose of the CCJA is to facilitate the orderly resolution of child custody disputes between parents located in different states. We agree that is one of the purposes. See \u00a7\u00a7 40-10-2(A) to (D). However, Section 40-10-2 does not state that resolution of disputes between parents is the primary purpose. Section 40-10-2(G) states a purpose of facilitating the enforcement of custody decrees of other states. Section 40-10-2(1) states a purpose of making the laws of New Mexico uniform with the laws of other states which enact similar laws.\nSection 40-10-15(A)(1) reflects the Legislature\u2019s intent that there be a standardized approach to the question of authority to modify another state's custody decree. DHS may dislike this legislative decision, but that dislike provides no basis for this Court to hold that the children\u2019s court could modify a Texas decree in violation of Section 40-10-15(A)(1). Cf. State ex rel. Valles v. Brown, 97 N.M. 327, 639 P.2d 1181 (1981) (stating that the PKPA preempts the ability of New Mexico courts to modify an out-of-state child custody decree).\nDHS also urges that the specific child neglect statute, the Children\u2019s Code, applies over the more general statutory statement of the CCJA. The contention is advanced that the exclusive original jurisdiction conferred upon the children\u2019s court by Section 32-1-9(A) is a specific provision which controls over both Sections 40-10-4(A)(3) and 40-10-15(A)(1) of the CCJA. Section 32-1-9(A) is specific as to the jurisdiction of the children\u2019s court in abandonment or neglect proceedings under the Children\u2019s Code. Section 40-10-4(A)(3) is similarly specific as to the jurisdiction of the district court in abandonment or neglect proceedings in an emergency situation. Because no distinction is made between the children\u2019s court, which is a division of the district court, and the district court itself, no specific-general issue arises from the grant of jurisdiction found in either Section 32-1-9 or Section 40-10-4(A)(3).\nWe further do not find that there is a conflict between Section 32-1-9(A) and Section 40-10-15(A)(1). Section 40-10-15(A)(1) neither modifies nor takes away jurisdiction of the children\u2019s court but merely limits the. ability of the children\u2019s court to modify another state\u2019s custody decree where the other state has not given up jurisdiction. There being no conflict, the specific-general rule does not apply.\nThe applicable rule of construction is that of pari materia. Section 32-1-9(A) and Section 40-10-15(A)(1) are in pari materia because both deal with jurisdiction. Livingston v. Ewing, 98 N.M. 685, 652 P.2d 235 (1982). Being in pari materia, they are to be construed together, if possible, to give effect to the provisions of both statutes. State ex rel. State Park and Recreation Commission v. New Mexico State Authority, 76 N.M. 1, 411 P.2d 984 (1966). Accord E.P. v. District Court of Garfield County, 696 P.2d 254 (Colo.1985). Our construction, that Section 32-1-9(A) gives the children\u2019s court the exclusive authority to act, and that Section 40-10-15(A) limits when that authority is to be exercised, gives effect to both statutes.\nThe foregoing disposes of DHS\u2019s claim that the limitation in the exercise of jurisdiction does not apply. Section 40-10-15(A) does apply. There is a limitation upon the children\u2019s court authority to modify the Texas court\u2019s decree.\nIII. Children\u2019s Court Authority Under the Facts.\nThis issue does not involve the authority of the children\u2019s court to issue the temporary orders of November 5, 1984, and December 11, 1984. No issue is raised as to those orders. See E.P. v. District Court of Garfield County. This issue involves the authority of the children\u2019s court to issue the order of February 1, 1985.\nThe record shows that Texas had been the children\u2019s home state within six months of the commencement of proceedings in New Mexico. The children were brought to New Mexico by relatives. The custody determination was made by a Texas court in a dissolution of marriage proceeding. Avinger was a Texas resident and there is nothing in the record which indicates that the Texas court, under Texas law, lacked jurisdiction to determine child custody. Avinger has remained a Texas resident throughout the course of the proceedings conducted in New Mexico. Under Section 40-10-15(A), the children\u2019s court lacked the authority to modify the Texas custody decree unless the Texas court no longer had jurisdiction or had declined to exercise jurisdiction to modify its custody decree. There is nothing in the record which indicates that at the time of the children\u2019s court proceeding, Texas no longer had jurisdiction or that Texas had declined to exercise such jurisdiction.\nThere being no basis upon which the children\u2019s court could modify the Texas custody decree, the children\u2019s court lacked authority to enter its order of February 1, 1985. We affirm the Court of Appeals on this issue.\nThe order of February 1, 1985 is vacated. The children\u2019s court is directed to comply with Section 40-10-15(A) as a prerequisite to further proceedings in connection with custody modification.\nIT IS SO ORDERED.\nRIORDAN, C.J., SOSA, Senior J., and STOWERS, J., concur.\nWALTERS, J., concurs in part, dissents in part.\nWALTERS, Justice\n(concurring in part,\ndissenting in part).\nI concur in that part of the majority opinion which holds that CCJA Section 40-10-15(A) limits the children\u2019s court\u2019s jurisdiction, under Sections 40-10-4(A)(3) and 32-1-9, to determine custody in child neglect and dependency proceedings, pointing out, however, that the CCJA applies only between states that have enacted the same or similar legislation, NMSA 1978, \u00a7 40-10-24 (Repl.Pamp.1983). Texas has adopted the UCCJA. See Tex.Fam.Code Annot. \u00a7\u00a7 11.51-11.75 (Vernon Supp.1986). Therefore CCJA Section 40-10-15(A) limits the children\u2019s court\u2019s authority to modify a prior Texas custody decree.\nOn the other hand, there are other considerations that should be addressed. Moreover, I do not agree that the PKPA does not apply, and my comments follow.\nI. Emergency Exception to CCJA.\nI am concerned about the scope of the \u201cemergency\u201d exception to Section 40-10-15(A) which is tacitly recognized for the first time in New Mexico by the majority\u2019s assertion that \u201c[tjhis issue does not involve the authority of the children\u2019s court to issue the temporary orders of November 5, 1984 and December 11, 1984. No issue is raised as to those orders.\u201d\nThe judicially-created emergency exception to Section 40-10-15(A) is necessarily flexible and therefore subject to abuse. R. Coombs, Interstate Child Custody: Jurisdiction, Recognition, and Enforcement, 66 Minn.L.Rev. 711, 863 (1982) [hereinafter cited as Coombs ]. I would have preferred that the majority include some specific guidelines in its opinion regarding the scope of the Section 40-10-4(A)(3) emergency parens patriae jurisdiction, perhaps adopting the following reasoning and language of the Colorado Supreme Court:\n[Wjhere an emergency exists affecting the immediate needs and welfare of the child, a court may enter appropriate orders for the protection of the child even if its orders contravene those of a sister state that still retains jurisdiction over custody. An \u201cemergency,\u201d however, is not a talisman which, by its mere inclusion in a modification petition, removes those salutory impediments to jurisdictional competition and conflict established by the UCCJA. The exercise of parens patriae jurisdiction should be limited to those cases where there is substantial evidence of a grave emergency affecting the immediate welfare of the child.\nBrock v. District Court of County of Boulder, 620 P.2d 11, 14 (Colo.1980) (emphasis added, citations omitted).\nThe instant case satisfies the Brock test for parens patriae jurisdiction in that: (1) there was substantial evidence in the form of the first-hand knowledge of the New Mexico Department of Human Services (DHS) and foster parents who had observed the children\u2019s developmental retardation and had been unsuccessful in locating the mother; and (2) the mother\u2019s subsequent attempts to remove the children from foster care in New Mexico posed a threat to the immediate welfare of the children and created a grave danger that their developmental problems and home environment might never be investigated or treated.\nOnce the test for emergency parens patriae jurisdiction has been satisfied, judicial relief should not extend beyond the issuance of temporary protective orders pending application to the court of the sister state for appropriate modification of its prior custody decree or an explicit renunciation by that state of its present jurisdiction to modify. Brock, 620 P.2d at 14; E.P. v. District Court, 696 P.2d 254, 263 (Colo.1985). Normally such application can be made by a phone consultation between the judges of the sister states, which consultation is subsequently memorialized by an order or memorandum from the forum that entered the earlier decree. Green v. Green, 87 Mich.App. 706, 711-12, 276 N.W.2d 472, 474-75 (1978). Only when there are compelling reasons, articulated in the record, that render such out-of-state application impractical, should a New Mexico court grant anything but temporary relief under its parens patriae jurisdiction. Brock, 620 P.2d at 14.\nII. Applicability of PKPA.\nI am fearful of the consequences of holding, as the majority does, that \u201cthe PKPA does not preempt the Sections of the New Mexico CCJA which include child neglect and dependency proceedings, where the PKPA is silent with reference to such child neglect and dependency proceedings.\u201d I do not read the opinion of the court of appeals as holding that the PKPA preempts the UCCJA except where New Mexico law is contrary to the PKPA. That court stated that both the CCJA and PKPA limit the children\u2019s court\u2019s jurisdiction to modify the Texas decree. See United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 199, 629 P.2d 231, 275 (1980), appeal dismissed, 451 U.S. 901, 101 S.Ct. 1966, 68 L.Ed.2d 289 (1981) (preemption may be inferred where there is a direct and positive conflict or repugnancy between state and federal laws).\nThe conclusion of this court that Congress did not intend for the PKPA to apply to child neglect and dependency proceedings appears to be based on the petitioner\u2019s characterization in its petition for certiorari of the definitional section and legislative history of the PKPA. Respondent\u2019s argument fully meets that issue.\nAlthough it is true that the PKPA does not spell out \u201cchild neglect and dependency proceedings\u201d as part of a \u201ccustody proceedings\u201d definition, neglect and dependency proceedings are not thereby removed from the purview of PKPA. Both the statutory language and explicit congressional purposes of the Act unmistakably mandate application of the PKPA to any proceeding in which modification of a foreign custody decree is at issue, regardless of how those proceedings are labeled or defined by a state.\n(a) Statutory Language\nThe PKPA does not include \u201cchild neglect and dependency proceedings\u201d within the definition of \u201ccustody proceedings\u201d for the simple reason that the PKPA contains no definition of \u201ccustody proceedings.\u201d Compare NMSA 1978, \u00a7 40-10-3 with 28 U.S.C. \u00a7 1738A(b). The CCJA, on the other hand, defines \u201ccustody proceeding\u201d as \u201cproceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and * * * child neglect and dependency proceedings.\u201d \u00a7 40-10-3(C).\nIf the absence of this language in the PKPA renders the PKPA inapplicable to \u201cchild neglect and dependency proceedings,\u201d then, logically, the PKPA is also inapplicable to an \u201caction for divorce or separation.\u201d One could take the equally untenable position that because the PKPA, unlike the CCJA, contains no explicit definition of \u201ccustody decree,\u201d see NMSA 1978, \u00a7 40-10-3(D), the PKPA does not apply to custody decrees.\nSection 40-10-3(C) identifies divorce, separation, and neglect and dependency proceedings only as examples of \u201ccustody proceedings.\u201d The operative language of the statute, however, is that \u201ccustody proceedings\u201d include any proceeding in which a \u201ccustody determination\u201d is at issue.\nBoth the CCJA and PKPA define \u201ccustody determination,\u201d in essence, as an action by a court which provides for the custody or visitation of a child. See NMSA 1978, \u00a7 40-10-3(B); 28 U.S.C. \u00a7 1738A(b)(3). Likewise, both the state and federal acts define the term \u201cmodification\u201d or \u201cmodification decree,\u201d in part, as a custody determination or decree which modifies or replaces a prior custody determination or decree. NMSA 1978, \u00a7 40-10-3(G); 28 U.S.C. \u00a7 1738A(b)(5).\nI agree that the children\u2019s court order of February 1st was both a \u201ccustody determination\u201d and a \u201cmodification decree\u201d within the meaning of Sections 40-10-3(B) and (G) of the CCJA. But the PKPA defines these terms in a manner that closely parallels the CCJA; thus, we do great damage, I think, to the PKPA\u2019s intent if we ignore the reality of the children\u2019s court order as precisely a \u201ccustody determination\u201d and \u201cmodification\u201d to which both the PKPA and the CCJA apply.\nThe language of the PKPA which binds us is explicit:\nThe appropriate authorities of every State shall enforce * * * and shall not modify * * * any child custody determination made * * * by a court of another State.\n28 U.S.C. \u00a7 1738A(a) (my emphasis).\nUnder the statutory language, then, if there are \u201ckidnapping\u201d facts which trigger the PKPA provisions, that Act must apply to any proceeding in which a state court seeks to modify a prior foreign custody determination.\n(b) Legislative Purposes\nI have no dispute with the majority\u2019s observation that the legislative history demonstrates a major purpose of the PKPA to be deterrence of \u201cchild snatching.\u201d But the federal act is not limited to child snatching solely by parents. See, e.g., 28 U.S.C. \u00a7 1738A, subsections (b)(2) (definition of \u201ccontestant\u201d) and (b)(6) (definition of \u201cperson acting as parent\u201d).\nWhile legislative history is helpful in divining congressional intent, the express Congressional Findings and Declaration of Purpose require no divinations or assumptions. Those Findings and Declaration are set forth in Pub.L. No. 96-611 \u00a7 7 (1980), which appears as a Note following 28 U.S. C.A. \u00a7 1738A (West Supp.1985). The Findings state, in part:\n(a) The Congress finds that\u2014\n(1) there is a large and growing number of cases annually involving disputes between persons claiming rights of custody and visitation of children under the laws * * * of different states * * *.\n(2) the laws and practices by which the courts of those jurisdictions determine their jurisdiction to decide such disputes * * * are often inconsistent and conflicting;\n(3) those characteristics of the law and practice in such cases * * * contribute to a tendency of parties involved in such disputes to frequently resort to the seizure, restraint, concealment, and interstate transportation of children, the disregard of court orders [and] excessive relitigation of cases * * * and\n(4) among the results of those conditions and activities are * * * harm to the welfare of children and their parents and other custodians.\n(My emphasis.) The quoted findings indicate that one of the problems sought to be addressed by the PKPA is forum shopping, i.e., the interstate transportation and concealment of children by persons (whether parents or not) who seek to obtain custody under a foreign decree inconsistent or conflicting with the initial custody decree. Regardless of the kindly motives of the persons in the instant case, there was an interstate transportation and, at least initially (as the trial court found), a concealment of Avinger\u2019s children.\nIf we assume for a moment that the children had been brought to New Mexico by their father, and that he had sought to obtain custody by alleging that his ex-wife had been abusing and neglecting the children, it is clear that under the New Mexico Children\u2019s Code he would have been required to refer his complaint to DHS. In turn, DHS would have been required to investigate. See NMSA 1978, \u00a7 32-l-14(A) and (F) (Repl.Pamp.1981). Following the investigation, DHS could then have recommended the filing of an abuse or neglect petition. \u00a7\u00a7 32-l-14(G), 32-l-17(B). Had such a petition been filed, the children would have become the subjects of a child neglect and dependency proceeding.\nUnder the majority opinion, and with such assumed facts, the children\u2019s court would then be faced with a confusing and ambiguous state of the law wherein the PKPA would not apply to child neglect and dependency proceedings, but would cover interstate child-snatching by a parent. The holding that the PKPA does not apply to the above hypothetical fact situation allows a forum-shopping parent to avoid the PKPA by simply transporting a child to New Mexico and alleging that the other parent or contestant has abandoned, abused or neglected the child. Neither the Congressional Findings nor its Declaration of Purpose support such a result.\nThe Declaration of Purpose lists six goals of the PKPA closely paralleling six of the nine purposes adopted by our legislature as part of New Mexico\u2019s CCJA. See NMSA 1978, \u00a7 4-10-2 (Repl.Pamp.1983). There is nothing in the three unlisted purposes unique to the CCJA that would intimate congressional intent to exempt child neglect and dependency proceedings from coverage of the PKPA. See \u00a7 40-10-2(C),(F),(I). On the other hand, the stated purposes common to both the state and federal acts leave no doubt that child neglect and dependency proceedings are, in fact, governed equally by the PKPA. Indeed, five of the six PKPA purposes relate expressly to the welfare or status of the child. (Compare NMSA 1978, \u00a7 40-1-2(A), (B), (D), (E), (H) and Pub.L. 96-611 \u00a7 7(c)(1), (2), (4), (5), (6).) Clearly, the overriding purpose of the PKPA is to protect children from the results of an interstate game of custodial ping-pong.\nThe majority opinion effectively removes that protection from children who are the subjects of proceedings labeled locally as \u201cneglect and dependency\u201d proceedings.\nThe absence of PKPA protection might not seem serious at first blush, in light of the fact that New Mexico has adopted the UCCJA which in some respects is akin to the PKPA and is the source from which the PKPA was derived. However, the PKPA is interstitial in nature. Coombs, 66 Minn. L.Rev. at 830. It was intended to complement state law and to apply in those instances where state law is silent, inapplicable, or contrary to the federal act. Id. at 832-34. Additionally, the state and federal statutes, although similar, are not identical, and there will be instances where the application of each produces a different result. See id. at 815-46. We have recognized that, in such cases, federal law will necessarily preempt state law which would produce a contrary result. See Serna v. Salazar, 98 N.M. 648, 651, 651 P.2d 1292, 1295 (1982).\nI would therefore affirm the Court of Appeals and hold that the PKPA applies to limit the children\u2019s court\u2019s exercise of jurisdiction under Sections 32-1-9 and 40-10-4(A)(3). I would, however, correct what I consider to be one flaw in the court of appeals\u2019 PKPA analysis.\n(c) Error in Court of Appeals\u2019 PKPA Analysis.\nThe PKPA provides that a state court shall enforce and shall not modify (except as provided in subsection (f)) a prior custody determination made consistently with the provisions of the PKPA by another state. 28 U.S.C. \u00a7 1738A(a). Thus, the first step in applying the PKPA is to determine whether the prior decree was issued consistently with the provisions of the federal act. (I would here observe, as an aside, that the fact that the CCJA does not require an analysis of the prior court\u2019s initial jurisdiction is one example of how the state and federal acts could produce different results.)\nSubsection (c) of the PKPA sets forth the test for determining whether a prior custody determination was made consistently with provisions of the PKPA. Subsection (c)(1) requires that the prior court must have had jurisdiction under its own state law. Subsection (c)(2) requires that one of four additional criteria must have been met.\nThe court of appeals indicated that there was nothing in the record to show that Texas did not initially have jurisdiction under Texas law as required by Subsection (c)(1). Cf. Mitchell v. Mitchell, 437 So.2d 122, 126 (Ala.Civ.App.1982) (party seeking to enforce judgment of another state ordinarily meets initial burden of proof by introduction of properly authenticated copy of judgment). The court of appeals, however, applied the criteria of Subsection (c)(2) as of the date that proceedings were commenced in New Mexico. If the purpose of subsection (c) is to determine whether the prior decree was made consistently with the PKPA, then the criteria of subsection (c)(2) must of course be applied as of the date the divorce and custody proceeding was filed in Texas. See Mitchell v. Mitchell, 437 So.2d at 125.\nThe record does not indicate when Avinger filed her petition for divorce, but there was evidence that the children had been lifelong residents of Texas before they were taken out of that state in 1984. It is therefore reasonable to infer that, when Avinger filed for divorce, Texas had \u201chome state\u201d jurisdiction under Texas Fam.Code Ann. Section 11.53(a)(1)(A) or (B)(Vernon Supp.1986). Consequently, the requirement of PKPA Subsection (c)(1) was met. The facts set forth above also satisfy the \u201chome state\u201d requirement of PKPA Subsection (c)(2). See 28 U.S.C. \u00a7 1738A(c)(2)(A).\nIn connection with this issue, Serna v. Salazar, wherein we stated that a New Mexico court must assume, for lack of contrary indication, that a prior foreign decree has been made consistently with the PKPA, 98 N.M. at 651, 651 P.2d at 1295, should be clarified. Serna correctly shifted the burden of proof to the party challenging the prior court's jurisdiction once the existence of a prior judgment was established. See Mitchell, 437 So.2d at 126. But there is no reason to rely on an assumption where, as here, there is uncontroverted record evidence to satisfy an inference of the \u201chome state\u201d provisions of Section 1738A(c).\nOnce it appears that a sister state has made its prior decree in conformity with the PKPA, a New Mexico court may modify that decree only as provided in subsection (f). \u00a7 1738A(a). Subsection (f) provides that the decree may be modified if the modifying court presently has jurisdiction, and the prior court no longer has jurisdiction or has declined to exercise its jurisdiction. Subsection (d) also must be considered, because it states that the prior court retains jurisdiction so long as the provisions of subsection (c)(1) (jurisdiction under its own state law) continue to be met and such state remains the residence of the child OR of any contestant.\nIf the children conceivably were not \u201cresidents\u201d of Texas as of November 5, 1984, the date when proceedings were commenced in New Mexico, it was because they had been removed without authority; but the mother (a \u201ccontestant\u201d) continued to be a Texas resident. The record contains no indication that Avinger ever ceased to be a Texas resident. Consequently, in 1984 and 1985, 'Texas still had jurisdiction under Tex.Fam.Code Ann. \u00a7 11.53(a)(1)(B). PKPA Section 1738A(f), therefore, precluded the New Mexico children\u2019s court from modifying the Texas decree unless Texas declined to exercise its jurisdiction.\nI would emphasize a final point: the PKPA, unlike the New Mexico CCJA, includes \u201ctemporary orders\u201d as part of its definition of \u201ccustody determination.\u201d Compare \u00a7 1738A(b)(3) with \u00a7 40-10-3(B). The children\u2019s court\u2019s ex parte and temporary orders of November 5 and December 11, 1984, were thus at least arguably in violation of the PKPA. See Coombs, 60 Minn.L.Rev. at 863-64. That observation makes it important to distinguish between emergency and nonemergency temporary orders, and to recognize that the earlier temporary orders were necessary to deal with an emergency. The order of February 1, 1985 was also temporary in that it granted custody to DHS for no longer than six months. It was not, however, a response to an emergent situation; it was a determination on the merits and, as such, beyond the authority of the children\u2019s court, under both the CCJA and PKPA, until the Texas court declined to exercise its jurisdiction. I am of the opinion that the February 1st order should be vacated and the matter returned to the children\u2019s court for a resolution of the Texas court\u2019s inclination to exercise its original jurisdiction. If Texas should decline, the children\u2019s court could then conduct any such proceedings as may be necessary to re-enter or reconsider its February 1985 order.\nTo the extent, then, that my views of the PKPA in relation to the New Mexico\u2019s Child Custody Jurisdiction Act differ from those of the majority, I respectfully dissent.", "type": "majority", "author": "FEDERICI, Justice. WALTERS, Justice" } ], "attorneys": [ "Richard J. Rubin, General Counsel, Ellen Souberman, John Petoskey, Asst. Attys. Gen., Santa Fe, for petitioner.", "Poole, Tinnin & Martin, Barbara L. Shapiro, Sarah Curry Smith, Albuquerque, for respondent." ], "corrections": "", "head_matter": "720 P.2d 290\nSTATE of New Mexico, ex rel. DEPARTMENT OF HUMAN SERVICES, Petitioner, v. Kathy Latham AVINGER, Respondent.\nNo. 16134.\nSupreme Court of New Mexico.\nMay 19, 1986.\nRehearing Denied June 24, 1986.\nRichard J. Rubin, General Counsel, Ellen Souberman, John Petoskey, Asst. Attys. Gen., Santa Fe, for petitioner.\nPoole, Tinnin & Martin, Barbara L. Shapiro, Sarah Curry Smith, Albuquerque, for respondent." }, "file_name": "0255-01", "first_page_order": 289, "last_page_order": 299 }