Pillars v. Thompson , 103 N.M. 704 ( 1986 )

OPINION

WALTERS, Justice.

On December 16, 1985, this Court issued an alternative writ of prohibition ordering the Respondent to desist from further proceedings in the matter of Merrifield v. Pillars, DR 85-00792, in- Bernalillo County District Court, until the issue concerning Respondent’s jurisdiction to determine grandparental visitation with the minor Pillars children had been reviewed.

The parties have since filed briefs and presented oral argument in this matter. The issue is whether a grandparent’s visitation rights under NMSA 1978, §§ 40-9-1 through -4, are extinguished by reason of the death of the natural parent of the children and adoption of the children by the surviving parent’s new spouse, when the deceased parent is the child of the petitioning grandparent.

Section 40-9-4 provides that the Grandparent Visitation Act shall have no application “in the event of a relinquishment or termination of parental rights in cases of statutory adoption.” Sections 40-7-3 and -4 of the Adoption Act (NMSA 1978, §§ 40-7-1 to -11, 40-7-13 to -17) define “relinquishment” and “termination of parental rights.” In this case, although there was a statutory adoption, that adoption proceeding had nothing to do with relinquishment of parental rights by either natural parent, or with terminating the parental rights of either natural parent. Rather, the natural fathers’ parental rights — ordinarily considered to be the rights to care, custody, control, and services of the child, see 59 Am.Jur.2d, Parent and Child, §§ 11, 12 (1971) — ceased when, by reason of death, he was no longer able to exercise them. Section 40-9-4 simply does not apply to the facts at hand. Consequently, the alternative writ was improvidently issued. We hold that the Respondent has jurisdiction under the Grandparent Visitation Act to determine whether and under what conditions the grandparent’s request for visitation should be granted.

The alternative writ is quashed; the matter is remanded to the district court for resolution of pending proceedings.

IT IS SO ORDERED.

RIORDAN, C.J., FEDERICI, J., and SOSA, Senior Justice, concur. STOWERS, J., dissents.