{ "id": 1568751, "name": "STATE of New Mexico ex rel. HEALTH AND SOCIAL SERVICES DEPARTMENT, Petitioner-Appellee, v. NATURAL FATHER and Natural Mother, Respondents-Appellants. In the Matter of John DOE, Jane Doe, and Tom Doe, Children", "name_abbreviation": "State ex rel. Health & Social Services Department v. Natural Father", "decision_date": "1979-07-24", "docket_number": "No. 3789", "first_page": "222", "last_page": "228", "citations": [ { "type": "official", "cite": "93 N.M. 222" }, { "type": "parallel", "cite": "598 P.2d 1182" } ], "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": "56 L.Ed.2d 772", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1978, "opinion_index": 0 }, { "cite": "98 S.Ct. 2826", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1978, "opinion_index": 0 }, { "cite": "436 U.S. 928", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1490656, 1490498, 1490470, 1490312, 1490505, 1490539, 1490157, 1490480, 1490448, 1490548, 1490487, 1490392, 1490590 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/us/436/0928-07", "/us/436/0928-06", "/us/436/0928-09", "/us/436/0928-12", "/us/436/0928-01", "/us/436/0928-05", "/us/436/0928-04", "/us/436/0928-08", "/us/436/0928-13", "/us/436/0928-10", "/us/436/0928-11", "/us/436/0928-03", "/us/436/0928-02" ] }, { "cite": "91 N.M. 320", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571049 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0320-01" ] }, { "cite": "92 N.M. 381", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557166 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0381-01" ] }, { "cite": "92 N.M. 490", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557038 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0490-01" ] }, { "cite": "84 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770542 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/84/0789-01" ] }, { "cite": "88 N.M. 338", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839119 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0338-01" ] }, { "cite": "85 N.M. 753", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771435 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0753-01" ] }, { "cite": "78 N.M. 218", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326226 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0218-01" ] }, { "cite": "228 P. 601", "category": "reporters:state_regional", "reporter": "P.", "year": 1924, "opinion_index": 0 }, { "cite": "30 N.M. 150", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841435 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/nm/30/0150-01" ] }, { "cite": "83 N.M. 800", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5341678 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0800-01" ] }, { "cite": "297 So.2d 458", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9628057 ], "opinion_index": 0, "case_paths": [ "/so2d/297/0458-01" ] }, { "cite": "130 Vt. 525", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4671156 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/vt/130/0525-01" ] }, { "cite": "237 N.W.2d 166", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 4730704, 10692639 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/sd/89/0590-01", "/nw2d/237/0166-01" ] }, { "cite": "89 S.D. 590", "category": "reporters:state", "reporter": "S.D.", "case_ids": [ 4730704 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/sd/89/0590-01" ] }, { "cite": "323 S.W.2d 397", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10164279 ], "opinion_index": 0, "case_paths": [ "/sw2d/323/0397-01" ] }, { "cite": "90 N.M. 87", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872642 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/90/0087-01" ] }, { "cite": "89 N.M. 522", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868024 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/89/0522-01" ] }, { "cite": "31 N.M. 7", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1551459 ], "weight": 2, "year": 1925, "opinion_index": 0, "case_paths": [ "/nm/31/0007-01" ] }, { "cite": "71 A.L.R.3d 1", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1973, "pin_cites": [ { "page": "1" } ], "opinion_index": 0 }, { "cite": "84 N.M. 776", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765063 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/84/0776-01" ] }, { "cite": "85 N.M. 597", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2776921 ], "weight": 5, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0597-01" ] }, { "cite": "85 N.M. 585", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2774295 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/85/0585-01" ] } ], "analysis": { "cardinality": 705, "char_count": 14593, "ocr_confidence": 0.803, "pagerank": { "raw": 2.502070011870518e-07, "percentile": 0.8096595593024921 }, "sha256": "e778b0e009e23ae243cf6999c96d6a65815a4997c5c19623457b5574d75e4a52", "simhash": "1:f6a57651e57c85b0", "word_count": 2320 }, "last_updated": "2023-07-14T15:53:36.909287+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SUTIN and HERNANDEZ, JJ., concur." ], "parties": [ "STATE of New Mexico ex rel. HEALTH AND SOCIAL SERVICES DEPARTMENT, Petitioner-Appellee, v. NATURAL FATHER and Natural Mother, Respondents-Appellants. In the Matter of John DOE, Jane Doe, and Tom Doe, Children." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThe children\u2019s court ruled that the three children were neglected; legal and physical custody of the children was awarded to the Department of Human Services. The parents appeal. There are (1) three constitutional issues, (2) one issue of statutory interpretation, and (3) two evidentiary issues. Constitutional Issues\n(a) Title of the Children\u2019s Code\nThe Children\u2019s Code defines a \u201cneglected child\u201d and provides for disposition of the neglected child. Sections 32-l-3(L) and 32-l-34(A), N.M.S.A.1978. It is not claimed that transfer of legal and physical custody is unauthorized by the Code. Such a transfer removes the custody from the previous custodians, in this case, the natural parents.\nThe relationship of parent and child is of fundamental importance, opinion of Judge Hernandez in Huey v. Lente, 85 N.M. 585, 514 P.2d 1081 (App.1973), approved by the Supreme Court, 85 N.M. 597, 514 P.2d 1093 (1973). That relationship is affected by the change in custody. The parents contend that legislation authorizing an alteration in the parent-child relationship is unconstitutional unless the title to the authorizing legislation gives reasonable notice that the legislation affects parental rights.\nThe parents\u2019 claim is based on N.M. Const., art. IV, \u00a7 16 which states that the \u201csubject of every bill shall be clearly expressed in its title . . The title to the Children\u2019s Code is: \u201cAN ACT RELATING TO CHILDREN; ENACTING A CHILDREN\u2019S CODE; AND AMENDING AND REPEALING CERTAIN SECTIONS OF NMSA 1953.\u201d\nThe \u201csubject\u201d of the Code is children, and that subject is clearly expressed. Provisions within the Code authorizing a change in the custody of a neglected child is a detail provided for accomplishing the legislative purpose of protecting children. This detail need not be set forth in the title. There was no violation of N.M.Const., art. IV, \u00a7 16. City of Albuquerque v. Garcia, 84 N.M. 776, 508 P.2d 585, 71 A.L.R.3d 1 1 (1973); Davy v. McNeill et al., 31 N.M. 7, 240 P. 482 (1925). Compare Huey v. Lente, 85 N.M. 597, 514 P.2d 1081, supra.\n(b) Vagueness\nThe definitions of neglected child pertinent in this appeal read:\nL. \u201cneglected child\u201d or \u201cabused child\u201d means a child:\n******\n(2) who is without proper parental care and control or subsistence, education, medical or other care or control necessary for his well-being because of the faults or habits of his parents, guardian or custodian or their neglect or refusal, when able to do so, to provide them; or\n(3) whose parents, guardian or custodian are unable to discharge their responsibilities to and for the child because of their incarceration, hospitalization or other physical or mental incapacity; or .\nA statute may violate due process if it is so vague that persons of common intelligence must necessarily guess at its meaning. State v. Najera, 89 N.M. 522, 554 P.2d 983 (App.1976).\nThe parents contend that the words \u201cother care or control\u201d in subparagraph 2 and \u201cmental incapacity\u201d in subparagraph 3 are unconstitutionally vague. This claim goes to the words \u201cas written.\u201d See State v. Gurule, 90 N.M. 87, 559 P.2d 1214 (App.1977). We do not agree that the words are unconstitutionally vague.\nIn determining vagueness, we consider the words in the context in which they are used. State v. Najera, supra. The \u201cother care or control,\u201d according to the statute, is care and control other than subsistence, education and medical attention, but is care or control necessary for the child\u2019s well-being. Similarly, \u201cincapacity\u201d includes either a physical or mental incapacity other than an incapacity resulting from incarceration or hospitalization. The statute gives notice that a child is neglected if the parents lack the mental capacity to provide the care or control necessary for the child\u2019s well-being. There will be differences of opinion, as in this case, as to what is \u201cnecessary,\u201d but such a difference of opinion does not make the statutory words unconstitutionally vague. The vagueness doctrine is based on notice. State v. Najera, supra. The statute gives fair warning of what amounts to neglect of a child.\nMinor Children of F.B. v. Caruthers, 323 S.W.2d 397 (Mo.App.1959) held that \u201c \u2018otherwise without proper care, custody or support\u2019 \u201d was not unconstitutionally vague. Matter of D.T., 89 S.D. 590, 237 N.W.2d 166 (1975) held that the phrases \u201c \u2018lacks proper parental care,\u2019 \u201d and \u201c \u2018whose environment is injurious to his welfare\u2019 \u201d were not unconstitutionally vague. In re Neglected Child, 130 Vt. 525, 296 A.2d 250 (1972) held the phrase \u201c \u2018is without proper parental care or control, or subsistence, education, medical or other care or control necessary for his well-being\u2019 \u201d was not unconstitutionally vague. Note the similarity between this last phrase and our statutory language. Concerning mental incapacity, In re Williams, 297 So.2d 458 (La.App.1974) held that the phrase \u201c \u2018incapable of caring for himself or his personal safety\u2019 \u201d was not unconstitutionally vague. These decisions support our holding of no unconstitutional vagueness.\n(c) Unconstitutional Delegation\nThe parents assert that the statutory definitions, quoted above, are an unconstitutional delegation of legislative power because of an absence of standards within the definitions by which \u201cproper parental control\u201d and \u201cmental incapacity\u201d can be determined. See State v. Jaramillo, 83 N.M. 800, 498 P.2d 687 (App.1972). This issue is not a vagueness argument based on the above-quoted words. The contention is that absent a legislative provision defining the quoted words, the Department of Human Services makes the law by its determination of the meaning of the quoted words. The answer is that the meaning and application of the statute is not left to the Department of Human Services. The meaning and application is determined by a court, there is no missing standard. State v. Gurule, supra.\nStatutory Interpretation\nThe trial court concluded that each of the three children was a neglected child \u201cby reason of the conduct and mental incapacity\u201d of the parents. The conclusion as to \u201cmental incapacity\u201d is based on findings of mental retardation. The conclusion as to \u201cconduct\u201d is based on findings concerning living conditions, the lack of improvement in living conditions after \u201c[n]umerous attempts\u201d to help by various government agencies, the lack of \u201cproper parenting\u201d and the limited ability of the parents to learn \u201cproper parenting skills.\u201d\nThe parents assert that these findings and conclusions are based on a meaning of \u201cother care or control\u201d and \u201cmental incapacity\u201d which is contrary to the meaning of those phrases, as used in the statute.\nThe parents contend that \u201cother care or control\u201d is a general phrase, limited in meaning by the enumeration which precede the phrase in the statute. That enumeration is \u201csubsistence, education, medical The parents also contend that \u201cmental incapacity\u201d is a general phrase, limited in meaning by the words \u201cincarceration, hospitalization . .The parents assert such a limited meaning is required by the doctrine of ejusdem generis. On the basis that the two phrases have limited meanings, the parents contend the conclusion of \u201cneglect\u201d is unsupported by the findings because the findings failed to use the limited meanings of the two phrases. The parents\u2019 contention is incorrect because the doctrine of ejusdem generis is not applicable.-\nGrafe v. Delgado, Sheriff, 30 N.M. 150, 228 P. 601 (1924) states that under the doctrine\ngeneral words in a statute, which follow a designation or enumeration of particular subjects, objects, things, or classes of persons, will ordinarily be presumed to be restricted so as to embrace only subjects, objects, things, or classes of the same general character, sort or kind, to the exclusion of all others.\nThis doctrine, however, is no more than a rule of construction, Grafe v. Delgado, Sheriff, supra, which \u201cis resorted to merely as an aid in determining legislative intent.\u201d State v. Gonzales, 78 N.M. 218, 430 P.2d 376 (1967). When the statutory words are unambiguous, there is no basis for utilizing a rule of construction to determine legislative intent; rather, intent is determined from the statutory language. State v. McHorse, 85 N.M. 753, 517 P.2d 75 (App.1973).\n\u201cOther care or control\u201d appears in the phrase \u201cwithout proper parental care and control or subsistence, education, medical or other care or control necessary for his well-being .Section 32-1-3(L)(2), supra. \u201cMental incapacity\u201d appears in the phrase \u201cunable to discharge their responsibilities to and for the child because of their incarceration, hospitalization or other physical or mental incapacity . . Section 32-l-3(L)(3), supra. Both phrases unambiguously use \u201cother\u201d in the sense of \u201cdistinct from . . those first mentioned\u201d; \u201cdifferent.\u201d Webster\u2019s Third New International Dictionary (1966). There being no ambiguity, there is no basis for application of the doctrine of ejusdem generis.\nThe trial court did not err in failing to apply a limited meaning to the two phrases.\nEvidentiary Issues\n(a) Propriety of the Findings\nThe trial court found:\n6. When the children were living with the respondents, MOTHER failed to properly maintain the home, resulting in filthy living conditions and a continuous stench.\n7. FATHER realized that the living conditions in the home were very bad, but did nothing to improve the situation.\n8. MOTHER and FATHER failed to provide a proper home environment conducive to the normal mental, emotional and social development of the children.\n9. Numerous attempts were made to help the family by agents from several different agencies including Peanut Butter and Jelly Therapeutic Pre-School, the Family Resource Center, and the Family Health Center, but the family made no progress while the children were living in the respondents\u2019 home.\n10. MOTHER is retarded mentally, emotionally and socially.\n11. MOTHER is retarded in her ability to exercise good judgment, in understanding the consequences of her actions, in understanding the needs of her children, in controlling her impulses, and in her capability for providing a minimally adequate home for the children.\n12. FATHER is retarded mentally and emotionally.\n13. FATHER has poor judgment and cannot directly provide the day-to-day care and supervision that the children need.\n14. FATHER cannot provide the supervision of MOTHER which is necessary for the maintenance of a minimally adequate home for the children.\n15. Psychological evaluations establish that the ability of MOTHER and FATHER to learn proper parenting skills is poor.\n16. JOHN DOE, JANE DOE and TOM DOE are all severally retarded mentally, emotionally and socially.\n17. The cause of the children\u2019s retardation is a continuing lack of proper parenting by MOTHER and FATHER.\n18. The children would suffer further and more severe emotional and mental harm if returned to the custody of either or both their parents. The respondents\u2019 lack of proper parenting for the children has caused the disintegration of the parent-child relationship.\n19. Since the children have been removed from the respondents\u2019 care and custody and placed in foster care, they have all dramatically improved mentally, emotionally, and socially.\nThe parents challenge most of these findings either as irrelevant, as evidentiary rather than ultimate facts, or not based on evidence that is clear and convincing. The parents also complain of the failure of the children\u2019s court to adopt their requested findings to the contrary.\nWe comment on one of the findings. As to the other findings, whether evidentiary or ultimate, they support the conclusion that the three children were neglected. The trial court ruled that the evidence was clear and convincing; we agree. Huey v. Lente, 85 N.M. 597, 514 P.2d 1093, supra; see Matter of Valdez, 88 N.M. 338, 540 P.2d 818 (1975). The evidence being sufficient to support the findings made, the children\u2019s court did not err in refusing the contrary findings requested by the parents. Seven Rivers Farm, Inc. v. Reynolds, 84 N.M. 789, 508 P.2d 1276 (1973).\nFinding No. 16 states that each of the three children was severely retarded mentally, emotionally and socially. The evidence is sufficient to support this finding as to John. The evidence as to Jane and Tom (the younger two) was that they were developmentally retarded and that Jane was showing signs of developing the same mental and emotional problems as John; however, there is no clear and convincing evidence to support Finding No. 16 as to Jane or Tom. This does not aid the parents, however, because Finding No. 16 is superfluous. As defined in \u00a7 32-l-3(L)(2) and (3), supra, evidence that the child is severely retarded is not required for a ruling that the child is neglected. Compare Matter of Pernell, 92 N.M. 490, 590 P.2d 638 (App.1979). An erroneous finding, unnecessary to support the conclusion of neglect, is not grounds for reversal. Mathieson v. Hubler, 92 N.M. 381, 588 P.2d 1056 (App.1978).\n(b) Limiting the Parents\u2019 Evidence\nThe \u201cneglect\u201d proceedings involved three of five children in the family. The parents\u2019 theory was that the developmental problems of the three children were not because of their care or because of their environment. In support of this theory, evidence was introduced that the other two children \u201cwere healthy, normal, bright children for their age, and that their care and environment was the same as the other children.\u201d The parents contend the children\u2019s court erred in not allowing them to \u201cfully and completely\u201d develop this evidence.\nThe children\u2019s court limited this evidence, remarking: \u201c[I]f you\u2019re trying to show they have two children that are still there and they apparently have been able to maintain the home for the children, you\u2019ve had that established about fifteen times.\u201d\nIt was not an abuse of discretion and, therefore not error, to restrict the submission of cumulative evidence. Evidence Rule 403; State v. Brown, 91 N.M. 320, 573 P.2d 675 (App.1977), cert. denied, 436 U.S. 928, 98 S.Ct. 2826, 56 L.Ed.2d 772 (1978).\nThe amended judgment and disposition is affirmed.\nSUTIN and HERNANDEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Emmett C. Hart, Albuquerque, for respondents-appellants.", "Jeff Bingaman, Atty. Gen., Santa Fe, Elaine Watson, Asst. Atty. Gen., Albuquerque, for petitioner-appellee." ], "corrections": "", "head_matter": "598 P.2d 1182\nSTATE of New Mexico ex rel. HEALTH AND SOCIAL SERVICES DEPARTMENT, Petitioner-Appellee, v. NATURAL FATHER and Natural Mother, Respondents-Appellants. In the Matter of John DOE, Jane Doe, and Tom Doe, Children.\nNo. 3789.\nCourt of Appeals of New Mexico.\nJuly 24, 1979.\nEmmett C. Hart, Albuquerque, for respondents-appellants.\nJeff Bingaman, Atty. Gen., Santa Fe, Elaine Watson, Asst. Atty. Gen., Albuquerque, for petitioner-appellee." }, "file_name": "0222-01", "first_page_order": 268, "last_page_order": 274 }