{ "id": 1584538, "name": "In the Matter of the ADOPTION OF John DOE, a minor", "name_abbreviation": "In re Doe", "decision_date": "1982-12-09", "docket_number": "No. 5716", "first_page": "278", "last_page": "283", "citations": [ { "type": "official", "cite": "99 N.M. 278" }, { "type": "parallel", "cite": "657 P.2d 134" } ], "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": "96 N.M. 84", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577421 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0084-01" ] }, { "cite": "283 N.W.2d 202", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10685141 ], "opinion_index": 0, "case_paths": [ "/nw2d/283/0202-01" ] }, { "cite": "354 A.2d 667", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "372 A.2d 607", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1977, "opinion_index": 0 }, { "cite": "73 N.J. 68", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1944387 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nj/73/0068-01" ] }, { "cite": "354 A.2d 662", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1976, "opinion_index": 0 }, { "cite": "139 N.J.Super. 533", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 302901 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nj-super/139/0533-01" ] }, { "cite": "340 So.2d 654", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9682172 ], "opinion_index": 0, "case_paths": [ "/so2d/340/0654-01" ] }, { "cite": "256 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "150 Ga.App. 39", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 802868 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ga-app/150/0039-01" ] }, { "cite": "159 Cal.Rptr. 460", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1979, "opinion_index": 0 }, { "cite": "98 Cal.App.3d 412", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2000338 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/cal-app-3d/98/0412-01" ] }, { "cite": "423 N.E.2d 915", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "53 Ill.Dec. 246", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1981, "opinion_index": 0 }, { "cite": "85 Ill.2d 300", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469559 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/85/0300-01" ] }, { "cite": "165 Cal.Rptr. 61", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1980, "opinion_index": 0 }, { "cite": "106 Cal.App.3d 326", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 1973307 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/cal-app-3d/106/0326-01" ] }, { "cite": "557 P.2d 349", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1976, "opinion_index": 0 }, { "cite": "16 Wash.App. 579", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1770922 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/wash-app/16/0579-01" ] }, { "cite": "352 So.2d 957", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9726273, 9726131 ], "year": 1977, "pin_cites": [ { "parenthetical": "abandonment under adoption statute" } ], "opinion_index": 0, "case_paths": [ "/so2d/352/0957-02", "/so2d/352/0957-01" ] }, { "cite": "513 P.2d 831", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1973, "opinion_index": 0 }, { "cite": "82 Wash.2d 736", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1130140 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/wash-2d/82/0736-01" ] }, { "cite": "290 N.W.2d 498", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10684098 ], "year": 1980, "pin_cites": [ { "parenthetical": "abandonment" } ], "opinion_index": 0, "case_paths": [ "/nw2d/290/0498-01" ] }, { "cite": "309 Minn. 458", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 899211 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/minn/309/0458-01" ] }, { "cite": "475 S.W.2d 330", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10070217 ], "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/sw2d/475/0330-01" ] }, { "cite": "89 N.M. 606", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2863893 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/89/0606-01" ] } ], "analysis": { "cardinality": 799, "char_count": 15539, "ocr_confidence": 0.766, "pagerank": { "raw": 1.8359737200701153e-07, "percentile": 0.7214061514783294 }, "sha256": "6d1ccf0641d13eab56236f9b05d46b374f90e4438e2a42a5a9e7822d4cb8b21a", "simhash": "1:9542e74a1a2eff02", "word_count": 2577 }, "last_updated": "2023-07-14T20:36:40.875408+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and DONNELLY, JJ., concur." ], "parties": [ "In the Matter of the ADOPTION OF John DOE, a minor." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nThe father of a minor child murdered the mother of the child and shot the grandmother. The father appeals an order of the district court that terminated his parental rights. We affirm.\nThe trial court found that the parents of the child were married on May 3, 1979 (the wife was 17 years old). The child was born January 25, 1980. The parents separated on May 1, 1980. The child and the mother moved into the home of the maternal grandparents on May 14, 1980, and a divorce decree was entered on July 3, 1980. The custody of the child was granted to the mother with reasonable visitation rights in the father together with custody every other weekend. Support payments were $85.00 per month.\nOn October 30, 1980, after telling the mother by telephone that \u201cthe world wasn\u2019t big enough for her and him both,\u201d the father went to the home of the maternal grandparents and intentionally shot the mother five times in the chest, killing her instantly. (The mother was 18 years old and the child 9 months old.) At the same time and in the same room, he intentionally shot and injured the maternal grandmother. (Finding No. 4 \u2014 challenged.)\nOn December 16, 1980, the father was charged with first degree murder, but entered a plea of guilty to second degree murder and aggravated battery with a firearm. He was sentenced to 14 years in the State Penitentiary and fined $15,000.00.\nOn December 21, 1980, the maternal grandparents were awarded custody of the child. Due to the incarceration of the father, the child has not seen the father since October 30, 1980, the date the mother was murdered, and this condition is unlikely to change or improve. The father\u2019s earliest possible release date is in May, 1985, at which time the child will be over 5 years of age. (Finding No. 7 \u2014 challenged.)\nDue to the father\u2019s wilful act, the father abandoned the child by reason of neglect in leaving the child without proper parental care and control or subsistence necessary for the child\u2019s well-being. Because of his incarceration due to his wilful act, the father placed himself in a position of disability to discharge his responsibilities, all as defined in \u00a7\u00a7 32-1-3 and 40-7 \u2014 4, N.M.S.A. 1978 and these conditions of neglect are unlikely to change in the foreseeable future. (Finding No. 8 \u2014 challenged.)\nThe child has been in the maternal grandparents\u2019 home since he was less than 4 months old. If it ever existed, the parent-child relationship disintegrated. A psychological parent-child relationship has developed between the child and the maternal grandparents and they desire to adopt the child. (Finding No. 9 \u2014 challenged.)\nThe wilful murder of the child\u2019s mother by the father constitutes a total neglect of his parental obligations toward the child in that he permanently removed the child\u2019s mother who could have provided for the child\u2019s needs. The evidence was clear and convincing. (Findings No. 10, 11 \u2014 challenged.)\nThe court concluded: (1) it was established by clear and convincing evidence that the father abandoned and neglected the child; that the welfare and interests of the child would be served best by terminating the father\u2019s parental rights; (2) the father evidenced intentional conduct which demonstrated a conscious disregard of obligations owed the child which conduct led to the destruction of the parent-child relationship; (3) the court must give primary consideration to the physical, mental and emotional welfare and needs of the child; the act of the father was palpably hurtful to the child which demonstrated that parental obligations had been forsaken; and (4) the petition for termination of parental rights should be granted.\nThe father claims the district court erred for two reasons:\n(1) The court\u2019s findings Nos. 4, 7, 8, 9,10 and 11 are not supported by clear and convincing evidence and will not support a determination of abandonment, and\n(2) The court should have adopted all of the father\u2019s tendered requested findings and conclusions.\nThe father claims that the evidence and the law will not support a determination of abandonment. We disagree.\nThe findings of the court are supported by substantial evidence, clear and convincing. To detail all of the evidence most favorable to the decision is unnecessary. A recitation of the rules which govern the court\u2019s findings has been stated innumerable times. We need not repeat them. The father relies upon his testimony and that of his mother. The trial court listened and tested its credibility. It believes or disbelieves this testimony. We do not. Neither do we weigh the testimony.\nAfter the telephone conversation in which the father told the mother \u201cthat the world wasn\u2019t big enough for her and him both,\u201d the father walked 5, 6 or 7 blocks to a friend\u2019s home. He walked in. No one was in the home. He found a gun in a dresser drawer, put it in his pants and walked 9 blocks to the grandparents\u2019 home where the mother and the child lived. He pounded on the door and wanted to talk to the mother. He entered and grabbed the mother by the arm. The father, mother and child entered the bedroom and the father slammed the door. He shot the mother five times in the heart area which killed her. The grandmother ran to the bedroom, kicked the door open, saw the mother dead and the child at the end of the bed. She thought the father would shoot the child but he squatted, put his gun on his arm, shot the grandmother in the arm and ran out of the house.\nThe father claims the trial court erred because the petition proceeded on the basis of abandonment and not neglect; that \u201c[t]he judge, in an attempt to bolster his gut reaction decision, fished around and brought in Section 32-1-3 * * * not pled which was Section 40-7-4 B(3) * * * and * * * Section 40-7-4B(4) * * * not pled.\u201d Section 40-7-4(B) provides four bases upon which parental rights can be terminated: (1) abandonment; (2) the identity of the parents is unknown; (3) neglect as defined in \u00a7 32-1-3; and (4) foster care placement. Subsection E(2) provides that the application shall set forth \u201cthe ground for termination and the facts and circumstances supporting the ground for termination.\u201d Subsection F provides that \u201c[ajfter the filing of an application to terminate parental rights, the court shall set a time and place for a hearing on the application at least twenty days before the date of the hearing.\u201d No provision appears for any other pleadings or proceedings between the time the application is filed and the hearing. Neither does this section forbid intermediate proceedings or pleadings. Petitioners on motion obtained a court order that a guardian ad litem be appointed.\nThe petition alleged that as grounds for termination, \u201cthe minor child has been abandoned by the natural father since October 30, 1980; that the natural father has neither contacted nor contributed to the support of said child since that time.\u201d\nThe father filed no response. The case proceeded to a hearing on whether the father abandoned the child. Evidence was presented by the parties sufficient to show that the father abandoned the child by reason of neglect as defined in \u00a7 32-1-3. Section 40-7-4(B) provides:\nThe court shall terminate parental rights with respect to a minor child when:\n(1) the minor has been abandoned by his parents * * * or\n******\n(3) the child is a neglected * * * child as defined in Section 32-1-3 NMSA 1978 * * *\nSection 32-l-3(L) says:\n\u201cneglected child\u201d means a child:\n(1) who has been abandoned by the parent * * *.\n******\n(3) whose parent * * * is unable to discharge his responsibilities to and for the child because of incarceration.\n\u201cIncarceration\u201d means \u201cimprisonment; confinement in a jail or penitentiary.\u201d Black\u2019s Law Dictionary 903 (Rev. 4th ed. 1968).\nWe need not distinguish a \u201cneglected child\u201d from an \u201cabandoned child\u201d because a \u201cneglected child means a child who has been abandoned by the parent,\u201d a parent who by reason of incarceration \u201cis unable to discharge his responsibilities to and for the child.\u201d \u201cIncarceration\u201d takes on ominous tones in the parent-child relationship, especially so when a father, in the presence of a child, murders the mother of the child. Under this interpretation of \u00a7 40-7-4(B), the district court properly terminated the father\u2019s parental rights.\nAdoption of Doe, 89 N.M. 606, 555 P.2d 906 (Ct.App.1976) involved the adoption and custody of a child. It approved a definition of abandonment stated in an Alaska case:\n\u201c * * * [Abandonment consists of conduct on the part of the parent which implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship.\u201d [Emphasis added.] [Id. 618, 555 P.2d 906.]\n******\nWhat is meant by \u201cobligation owed by a parent to a child\u201d? These obligations are the obligations \u201ctoo [sic] personally care for, support, educate, give moral and spiritual guidance, and provide a home and that love and security which a home provides.\u201d [Citation omitted.] [Id. 619, 555 P.2d 906.]\nHutson v. Haggard, 475 S.W.2d 330, 333 (Tex.Civ.App.1971) said:\n[W]e are of the opinion that appellant\u2019s wilful criminal acts and course of conduct has been such as implies a conscious disregard and indifference to Melissa in respect to his parental obligations that he as a parent owed to her. Thus, we reject the contention that imprisonment does not constitute voluntary abandonment * * *. [Emphasis added.]\nThe same result occurred in other mother and non-mother-murder cases but under different statutes. See, In re Welfare of Scott, 309 Minn. 458, 244 N.W.2d 669 (1976); Matter of B.A.M., 290 N.W.2d 498 (S.D. 1980) (abandonment); In re Sego, 82 Wash.2d 736, 513 P.2d 831 (1973); Turner v. Adoption of Turner, 352 So.2d 957 (Fla.App. 1977) (abandonment under adoption statute); Adoption of Kurth, 16 Wash.App. 579, 557 P.2d 349 (1976); In re Sarah H., 106 Cal.App.3d 326, 165 Cal.Rptr. 61 (1980); In re Abdullah, 85 Ill.2d 300, 53 Ill.Dec. 246, 423 N.E.2d 915 (1981); In re Geoffrey G., 98 Cal.App.3d 412, 159 Cal.Rptr. 460 (1979); and Avera v. Rainwater, 150 Ga.App. 39, 256 S.E.2d 648 (1979); In re Brannon, 340 So.2d 654 (La.App.1976) (non-mother murder). For a strong difference of opinion see Adoption of J., 139 N.J.Super. 533, 354 A.2d 662 (1976), reversed, 73 N.J. 68, 372 A.2d 607 (1977).\nSympathy or leniency are not rules of law that protect parental rights of a father who murdered the mother of a child. We agree with Adoption of J., supra [354 A.2d 667]: \u201cIt is painfully plain that the father\u2019s killing of the mother forever deprives the child of her maternal presence and being \u2014 the essence of childhood. A more horrendous wrong to a child is difficult to conceive.\u201d The Legislature enacted this concept as a matter of public policy. Section 40-7-4(A) says in pertinent part:\nIn proceedings to terminate parental rights, the court shall give primary consideration to the physical, mental and emotional welfare and needs of the child.\n\u201cPrimary consideration\u201d means consideration that stands first in rank, importance or value, fundamental in nature. The welfare of the child is of the highest importance for the court to consider. In Interest of F.H., 283 N.W.2d 202 (N.D.1979) discusses in detail the parental rights of a prison inmate, abandonment and child welfare. North Dakota adopted the Uniform Juvenile Court Act. It makes no reference to incarceration. It does provide that parental rights may be terminated if the parent has abandoned the child. Omitting citation of authorities, with emphasis added, it said:\nWe conclude that generally incarceration alone is not a defense to abandonment. Also, and on the other hand, incarceration per se does not constituted [sic] abandonment. Abandonment, however, may rest upon confinement coupled with other factors, such as parental neglect, withholding affection, no contact, no support, financial or otherwise, and disregard for the general welfare of the child * * *.\nWe have said that in adjudicating the issue of parental rights with respect to children, the primary consideration is the welfare of the child. Certainly, the child\u2019s welfare is the purpose of the proceeding. This is so regardless if the termination proceeding is based on grounds of abandonment. * * * [Id. 213.]\n* * * * * *\nThe rights of parents are not proprietary rights but rather are in the nature of a trust reposed in them, subject to their correlative duty to care for and protect the child. The law secures their rights only so long as they shall discharge their obligations. They are not to be enforced to the detriment or destruction of the happiness and well-being of the child * *.\nWe cannot allow the welfare and happiness of the child in this case to be destroyed in the name of protecting rights which have never been exercised and of which corresponding obligations have never been fulfilled. [Id. 214]\nSee Avera v. Rainwater, supra.\nWhether \u201cabandonment\u201d has occurred during incarceration is a question of fact to be determined on a case by case basis. Not every act of a parent which results in incarceration, nor every criminal act perpetrated between parents, can be deemed to be abandonment as a matter of law. Abandonment rests upon incarceration coupled with other factors such as parental neglect, lack of affection shown toward the child, failure to contact the child, financially support the child if able to do so, as well as disregard for the general welfare of the child.\nIn the instant case, the evidence supports the trial court\u2019s findings that the father abandoned his child.\nThe murder of the mother by the father struck at the heart of the family. The conviction proved the father\u2019s inability to appreciate the impact of his actions on the child and to respect the emotional and physical needs of the child.\nThe trial court gave primary consideration to the welfare of the child. We agree.\nThe father\u2019s lawyer seeks an award of attorney fees for services rendered in this appeal.\nRule 27(b) of the Rules of Appellate Procedure in Civil Cases reads:\n[T]he appellate court may award attorneys\u2019 fees for services rendered on appeal in causes where the award of attorneys\u2019 fees is permitted by law * * *.\nThe father, a pauper, was granted free process in this appeal pursuant to \u00a7 39-3-12, N.M.S.A.1978. In the exercise of discretion, we may award attorney fees when \u201cpermitted by law.\u201d \u201cBy law\u201d appears to mean by statute or regulation. See Casillas v. S.W.I.G., 96 N.M. 84, 628 P.2d 329 (Ct. App.1981). The lawyer\u2019s briefs filed in this Court and his oral presentation were commendable. But we can find no basis upon which to render an award.\nSection 40-7-4(G) provides that:\nThe court shall, upon request, appoint counsel for any parent who is unable to obtain counsel for financial reasons, or, if in the court\u2019s discretion, appointment of counsel is required in the interest of justice.\nNo request was made of the trial court for appointment as attorney for services to be rendered in this appeal. Whether this section also covers an award of attorney fees for such services is not before us. An attorney fee for the father\u2019s lawyer is denied.\nAFFIRMED.\nIT IS SO ORDERED.\nHENDLEY and DONNELLY, JJ., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Richard M. Snell, Clovis, for appellant.", "David F. Richards, Garrett & Richards, Clovis, for petitioners.", "Randy Knudson, Doerr & Knudson, Clovis, Guardian ad litem for involved child." ], "corrections": "", "head_matter": "657 P.2d 134\nIn the Matter of the ADOPTION OF John DOE, a minor.\nNo. 5716.\nCourt of Appeals of New Mexico.\nDec. 9, 1982.\nCertiorari Denied Jan. 14, 1983.\nRichard M. Snell, Clovis, for appellant.\nDavid F. Richards, Garrett & Richards, Clovis, for petitioners.\nRandy Knudson, Doerr & Knudson, Clovis, Guardian ad litem for involved child." }, "file_name": "0278-01", "first_page_order": 310, "last_page_order": 315 }