{ "id": 1597169, "name": "STATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT. In the Matter of JACINTA M., a child, and concerning Patricia Ann McLendon, Respondent", "name_abbreviation": "State ex rel. Human Services Department", "decision_date": "1988-11-03", "docket_number": "No. 10519", "first_page": "769", "last_page": "772", "citations": [ { "type": "official", "cite": "107 N.M. 769" }, { "type": "parallel", "cite": "764 P.2d 1327" } ], "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": "669 P.2d 886", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1983, "pin_cites": [ { "parenthetical": "En Banc" } ], "opinion_index": 0 }, { "cite": "100 Wash.2d 325", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1142070 ], "year": 1983, "pin_cites": [ { "parenthetical": "En Banc" } ], "opinion_index": 0, "case_paths": [ "/wash-2d/100/0325-01" ] }, { "cite": "401 N.Y.S.2d 636", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1978, "pin_cites": [ { "parenthetical": "in custody contest, while sexual lifestyle of a parent may properly be considered in determining what is best for children, its consideration must be limited to its present or reasonably predictable effect on the children's welfare" } ], "opinion_index": 0 }, { "cite": "60 A.D.2d 976", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3068738 ], "year": 1978, "pin_cites": [ { "parenthetical": "in custody contest, while sexual lifestyle of a parent may properly be considered in determining what is best for children, its consideration must be limited to its present or reasonably predictable effect on the children's welfare" } ], "opinion_index": 0, "case_paths": [ "/ad2d/60/0976-01" ] }, { "cite": "477 N.Y.S.2d 830", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1984, "pin_cites": [ { "parenthetical": "a parent's sexual indiscretions should be a consideration in a custody dispute only if they are shown to adversely affect the child's welfare" } ], "opinion_index": 0 }, { "cite": "102 A.D.2d 963", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3376871 ], "year": 1984, "pin_cites": [ { "parenthetical": "a parent's sexual indiscretions should be a consideration in a custody dispute only if they are shown to adversely affect the child's welfare" } ], "opinion_index": 0, "case_paths": [ "/ad2d/102/0963-01" ] }, { "cite": "418 N.E.2d 286", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11059412 ], "opinion_index": 0, "case_paths": [ "/ne2d/418/0286-01" ] }, { "cite": "90 N.M. 466", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2870207 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0466-01" ] }, { "cite": "104 N.M. 420", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594953 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/104/0420-01" ] }, { "cite": "88 N.M. 632", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2836508 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/88/0632-01" ] } ], "analysis": { "cardinality": 501, "char_count": 9386, "ocr_confidence": 0.802, "pagerank": { "raw": 1.748149116592015e-07, "percentile": 0.7080856837599412 }, "sha256": "2dcbff3aec5b56f85f2df0ad891f7d7555a50171d25c578d875dca2718931f4e", "simhash": "1:c6091c56cfe48992", "word_count": 1522 }, "last_updated": "2023-07-14T22:42:54.316311+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BIVINS and MINZNER, JJ., concur." ], "parties": [ "STATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT. In the Matter of JACINTA M., a child, and concerning Patricia Ann McLendon, Respondent." ], "opinions": [ { "text": "OPINION\nAPODACA, Judge.\nThe Department of Human Services (the Department) appeals a children\u2019s court order entered after a periodic review of a dispositional judgment with respect to Jacinta M. (the child). The child had been previously adjudicated neglected and abused and placed in the legal and physical custody of the Department. The Department raises three issues: whether the children\u2019s court (1) erred in ordering that the child not be placed in the care of her brother; (2) erred in finding that the child\u2019s brother was unsuitable as a custodian solely on the basis of his alleged homosexuality; and (3) should consider at a periodic review the same factors it is required to consider in the initial disposition. We hold that the children\u2019s court exceeded its authority and therefore reverse that portion of its order prohibiting the Department from placing the child with her brother.\nThe periodic review is a proceeding to determine whether a change in an initial disposition is warranted by a change in circumstances. Periodic reviews allow a court to review the status of children who have been adjudicated neglected or abused. The court determines whether the Department has made reasonable efforts to institute a treatment plan for the parent or guardian and whether the parent or guardian has made some effort to comply with the plan. See NMSA 1978, \u00a7 32-1-38.1(0) (Cum.Supp.1988). The court then determines whether it is in the best interests of the child to continue legal custody in the Department, to return the child to the parent, to transfer legal custody, or to terminate parental rights. \u00a7 32-l-38.1(F). Here, the court determined legal custody should remain with the Department. See \u00a7 32-l-38.1(F)(4).\nIn 1984, a petition was filed alleging neglect of the child and her brother, who has since been emancipated. As a result, the children\u2019s court adjudged the child abused and neglected and placed legal custody with the Department and physical custody with the mother. Three months later, the child was removed from the mother\u2019s physical custody under an ex parte order. The children\u2019s court at that time placed physical and legal custody of the child with the Department and scheduled a review in ninety days. A treatment plan for the mother included counseling for an alcohol problem. Periodic reviews continued every six months.\nWhen physical custody was transferred, the Department filed a separate action seeking to terminate parental rights. The children\u2019s court terminated the father\u2019s rights, found that the child was neglected and abused and that the conditions were unlikely to change in the foreseeable future, despite reasonable efforts by the Department to assist the mother. The children\u2019s court, however, denied termination of the mother\u2019s parental rights.\nIn March 1987, following another periodic review, the children\u2019s court continued physical and legal custody in the Department and ordered home studies on the child\u2019s mother and brother. In October 1987, another periodic review hearing was held. It is from the order entered then that the Department has appealed.\nAt that hearing, the Department stated-its intention to place the child with her brother in California. Statements and testimony were received concerning the home study conducted on the brother by the California Social Services Department. That department\u2019s report was \u201cvery positive\u201d in recommending placement with the brother. He was living in a desirable area of Los Angeles, had completed three years toward his bachelor\u2019s degree and was a supervisor earning a good salary at his place of employment. The brother was anxious to have his sister come live with him and had shown the skills necessary to care for her.\nThe child\u2019s guardian ad litem stated he favored placing the child with the brother, since he considered placement with a family member in the child\u2019s best interests. The child\u2019s mother, although expressing concern that the child would not have a female role model in California, nevertheless stated that placement with the brother \u201cmight be the best thing\u201d for the child. After presentation by the Department and statements by the guardian ad litem and the mother, the children\u2019s court questioned the brother\u2019s sexual orientation and whether he was \u201cactively\u201d homosexual. The children\u2019s court asked about alternatives to placement with the brother. The Department indicated the only alternative was long-term foster care and that it preferred placement with a suitable relative.\nThe order entered by the children\u2019s court at this hearing found there was a negative home study on the child\u2019s mother and a positive home study on the brother. It also found the brother could not provide a proper environment for his sister due to his homosexuality and that it was not in her best interests to be placed with a homosexual brother. The children\u2019s court ordered that the child remain in the legal and physical custody of the Department and that she remain in her current foster care situation and not be placed with her brother.\nThe authority of the children\u2019s court is limited by the Children\u2019s Code. See In Re Doe, 88 N.M. 632, 545 P.2d 491 (Ct.App.1975). Although the Code authorizes the children\u2019s court to order that legal custody remain with the Department, id., it does not grant the court the power to dictate to the Department where the child should be placed. See \u00a7 32-l-38.1(F). Additionally, legal custody is a legal status created by court order that vests in a person or agency the right to determine where and with whom a child will live. NMSA 1978, \u00a7 32-l-3(J) (Cum.Supp.1988). Thus, we conclude that, once legal custody was in the Department, the children\u2019s court had no authority to prohibit the Department from placing physical custody of the child with any particular person. Although granting such authority to the children\u2019s court might serve a useful purpose, the present statute does not do so.\nAlthough our holding that the children\u2019s court exceeded its authority is dispositive of this appeal, we nonetheless feel compelled to comment on the children\u2019s court findings regarding the brother\u2019s homosexuality because the issue may resurface at a later periodic review. Findings of a trier of fact must be supported by the evidence presented. Fitzsimmons v. Fitzsimmons, 104 N.M. 420, 722 P.2d 671 (Ct.App.1986). In this case, the children\u2019s court found the brother could not provide the child with the proper environment because of his homosexuality. It also entered a finding that homosexuality is an illness. There was absolutely no testimony the brother\u2019s sexual orientation would render him unfit to care for the child. Likewise, there was no evidence presented that homosexuality is an illness. We have searched the record and conclude that it is bare of any evidence to support these findings.\nDisapproval of morals or other personal characteristics cannot be used to determine the fitness of a person to care for a child. See Boone v. Boone, 90 N.M. 466, 565 P.2d 337 (1977); Fitzsimmons v. Fitzsimmons, In so concluding, we are not suggesting that a person\u2019s associational or even sexual conduct may not be relevant in deciding custody. But there must be compelling evidence that such conduct has significant bearing on the best interests of the child. See D.H. v. J.H., 418 N.E.2d 286 (Ind.App.1981) (homosexuality, standing alone without evidence of any adverse effect upon welfare of children, would not render wife unfit as a matter of law to have custody); Guinan v. Guinan, 102 A.D.2d 963, 477 N.Y.S.2d 830 (1984) (a parent\u2019s sexual indiscretions should be a consideration in a custody dispute only if they are shown to adversely affect the child\u2019s welfare); DiStefano v. DiStefano, 60 A.D.2d 976, 401 N.Y.S.2d 636 (1978) (in custody contest, while sexual lifestyle of a parent may properly be considered in determining what is best for children, its consideration must be limited to its present or reasonably predictable effect on the children\u2019s welfare); In re Marriage of Cabalquinto, 100 Wash.2d 325, 669 P.2d 886 (1983) (En Banc) (homosexuality in and of itself not a bar to custody).\nThere is nothing in the record to indicate the brother could not provide a proper environment for the child. In fact, the evidence was to the contrary. We believe the sexual orientation of a proposed custodian, standing alone, is not enough to support a conclusion that the person cannot provide a proper environment. It follows that the children\u2019s court findings that the brother could not provide a suitable environment for the child because of his homosexuality are not supported by the evidence.\nBecause of our disposition, we find it unnecessary to discuss Issue (3). The case is remanded to the children\u2019s court with orders to vacate that portion of its order concerning physical custody of the child. No costs are awarded.\nIT IS SO ORDERED.\nBIVINS and MINZNER, JJ., concur.", "type": "majority", "author": "APODACA, Judge." } ], "attorneys": [ "Hal Stratton, Atty. Gen., Jennifer A. Salisbury, Gen. Counsel, Dale S. Morritz, Asst. Gen. Counsel, Human Services Dept., Santa Fe, for petitioner-appellant.", "Robert S. Orlick, Clovis, for respondent.", "Stephen Quinn, Clovis, Guardian Ad Litem." ], "corrections": "", "head_matter": "764 P.2d 1327\nSTATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT. In the Matter of JACINTA M., a child, and concerning Patricia Ann McLendon, Respondent.\nNo. 10519.\nCourt of Appeals of New Mexico.\nNov. 3, 1988.\nHal Stratton, Atty. Gen., Jennifer A. Salisbury, Gen. Counsel, Dale S. Morritz, Asst. Gen. Counsel, Human Services Dept., Santa Fe, for petitioner-appellant.\nRobert S. Orlick, Clovis, for respondent.\nStephen Quinn, Clovis, Guardian Ad Litem." }, "file_name": "0769-01", "first_page_order": 811, "last_page_order": 814 }