{
  "id": 1573074,
  "name": "In the Matter of the GUARDIANSHIP of Travis Eugene ARNALL, a minor: Rebecca THATCHER, aka Becky Thatcher, Plaintiff-Appellant, v. Charles Eugene ARNALL, Defendant-Appellee",
  "name_abbreviation": "Thatcher v. Arnall",
  "decision_date": "1980-04-29",
  "docket_number": "No. 12714",
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  "casebody": {
    "judges": [
      "EASLEY and PAYNE, JJ., concur."
    ],
    "parties": [
      "In the Matter of the GUARDIANSHIP of Travis Eugene ARNALL, a minor: Rebecca THATCHER, aka Becky Thatcher, Plaintiff-Appellant, v. Charles Eugene ARNALL, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "OPINION\nSOSA, Chief Justice.\nThe former opinion in this case, filed March 5, 1980, is withdrawn and this opinion is substituted therefor.\nThis case was certified to this Court by the Court of Appeals pursuant to Section 34-5-14(C)(2), N.M.S.A.1978. The Court of Appeals was unable to concur in any one opinion, so we are asked to finally determine the issues presented. The issues are: (1) whether the district court, not sitting as children\u2019s court, has jurisdiction over disputes concerning guardianship, paternity, and termination of parental rights, and (2) whether the trial court\u2019s termination of the parental rights of the natural mother violated procedural due process. We decide that the court had jurisdiction, but that the procedural due process rights of the natural mother were violated when her parental rights were terminated.\nThe maternal grandparents of Travis Eugene Arnall, an infant, filed a petition in the District Court of Bernalillo County, seeking guardianship of the infant. Rebecca Thatcher, the natural mother, consented to the action. The putative father, Charles Eugene Arnall, filed a petition in the same court for custody and guardianship of the child. The mother responded by denying his paternity. After trial, the court found paternity, granted guardianship to the father, and terminated the parental rights of the mother in accordance with Section 40-7-4(A)(2) and (3), N.M.S.A.1978, of the Adoption Act (current version at \u00a7 40-7-4(B), N.M.S.A.1978 (Cum.Supp.1979)).\nThe appellant, Rebecca Thatcher, now challenges the jurisdiction of the district court to determine issues concerning parental rights and the guardianship of minors. She contends that the Legislature has given the children\u2019s court division of the district court exclusive jurisdiction over termination proceedings and guardianship of minors, and therefore the district court, not sitting as children\u2019s court, cannot determine these issues.\nSection 32-l-9(B), N.M.S.A.1978, of the Children\u2019s Code, Sections 32-1-1 et seq., N.M.S.A.1978, provides:\nThe court has exclusive original jurisdiction of the following proceedings under other laws which will be controlled by the provisions of the other laws without regard to provisions of the Children\u2019s Code:\n(1) for the termination of parental rights;\n(2) for the adoption of a minor;\n(5) to determine the custody of, or to appoint a custodian or a guardian for a minor. (Emphasis added.)\n\u201cCourt\u201d is defined as the \u201cchildren\u2019s court division of the district court . . .\u201d \u00a7 32-l-3(C), N.M.S.A.1978 (current version at \u00a7 32-l-3(C), N.M.S.A.1978 (Cum.Supp. 1979)).\nThe father argues that Section 32-l-9(B) is unconstitutional under the New Mexico Constitution, and therefore the district court, not sitting as children\u2019s court, did have jurisdiction run in.\nN.M.Const. Art. VI, \u00a7 1 provides:\nThe judicial power of the state shall be vested in ... a supreme court, a court of appeals, district courts; probate courts, magistrate courts and such other courts inferior to the district courts as may be established by law from time to time in any district, county or municipality of the state.\nN.M.Const. Art. VI, \u00a7 13 provides:\nThe district court shall have original jurisdiction in all matters and causes not excepted in this constitution, and such jurisdiction of special cases and proceedings as may be conferred by law . . . (Emphasis added.)\nThe question we must decide, therefore, is whether the Legislature can constitutionally limit the power of the district court in some matters to a particular division of the court. We decide that it cannot.\nThough the district court as a whole still retains \u201coriginal jurisdiction\u201d over these matters, particular divisions of the court would be left with a more limited jurisdiction. Such an interference in the original jurisdiction of a court of general jurisdiction is constitutionally impermissible. In order to construe the statutory language in a constitutional manner, State ex rel. Norvell v. Credit Bur. of Albuquerque, Inc., 85 N.M. 521, 514 P.2d 40 (1973), we find that the words \u201cexclusive original jurisdiction\u201d used in Section 32-l-9(B) were not intended to limit or abrogate the jurisdiction of the district court. See In re Santillanes, 47 N.M. 140, 138 P.2d 503 (1943). District courts thus have subject matter jurisdiction to decide matters concerning paternity, guardianship of minors and termination of parental rights. It is, of course, proper and preferable that guardianships of minors, termination proceedings and other matters enumerated in Section 32-l-9(B) be brought in children\u2019s or family court. But the failure to do so does not constitute a jurisdictional defect.\nAfter a hearing, the trial court terminated the parental rights of the natural mother in accordance with Section 40-7-4(A)(2) and (3). This was error. The issue of termination of parental rights was not raised in the pleadings, nor was it properly tried. The first time it was mentioned was after closing arguments, when counsel for the father made an oral motion that the parental rights of the mother be terminated. Although an objection was not made by the mother\u2019s counsel at that time, we nonetheless consider the issue because it is necessary to do so in order to protect her fundamental rights. DesGeorges v. Grainger, 76 N.M. 52, 412 P.2d 6 (1966). The mother was never given notice that the continuation of her parental rights were at issue; she did not have a full opportunity to prepare her case and consequently was not given a full and fair hearing. Tuttle v. Tuttle, 66 N.M. 134, 343 P.2d 838 (1959).\nIn Tuttle, the husband filed a motion asking that the wife be held in contempt for removing their children from the state contrary to the terms of their divorce decree. The wife then filed a motion to have the divorce decree amended to allow her to remove the children to her home in Texas during the months when she had custody. The court, after a hearing, awarded exclusive custody to the father. This Court reversed, because the parties were not given a full opportunity to be heard on the issue of custody, which was not raised by the pleadings. The same considerations apply to this case. The court must afford the parties proper procedural protection.\nThis case is reversed and remanded to the district court for further proceedings consistent with this opinion.\nEASLEY and PAYNE, JJ., concur.",
        "type": "majority",
        "author": "SOSA, Chief Justice."
      }
    ],
    "attorneys": [
      "Ellen Souberman, Mark Dauner, Leo C. Kelly, Albuquerque, for plaintiff-appellant.",
      "Pickard & Singleton, Lynn Pickard, Santa Pe, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "610 P.2d 193\nIn the Matter of the GUARDIANSHIP of Travis Eugene ARNALL, a minor: Rebecca THATCHER, aka Becky Thatcher, Plaintiff-Appellant, v. Charles Eugene ARNALL, Defendant-Appellee.\nNo. 12714.\nSupreme Court of New Mexico.\nApril 29, 1980.\nEllen Souberman, Mark Dauner, Leo C. Kelly, Albuquerque, for plaintiff-appellant.\nPickard & Singleton, Lynn Pickard, Santa Pe, for defendant-appellee."
  },
  "file_name": "0306-01",
  "first_page_order": 342,
  "last_page_order": 344
}