Nation v. Roybal ( 2023 )


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  • This decision of the New Mexico Court of Appeals was not selected for publication in
    the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
    citation of unpublished decisions. Electronic decisions may contain computer-
    generated errors or other deviations from the official version filed by the Court of
    Appeals.
    IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
    No. A-1-CA-41184
    ANGELA KIM NATION,
    Petitioner-Appellee,
    v.
    ISAIAH DEREK ROYBAL,
    Respondent-Appellant.
    APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
    Flora Gallegos, District Court Judge
    Angela Kim Nation
    Las Vegas, NM
    Pro Se Appellee
    Isaiah Derek Roybal
    Las Vegas, NM
    Pro Se Appellant
    MEMORANDUM OPINION
    MEDINA, Judge.
    {1}     Respondent (Father), a self-represented litigant, appeals from the district court’s
    order denying his motion to terminate his own parental rights. We issued a notice of
    summary disposition, proposing to summarily affirm. Petitioner (Mother), also filing pro
    se, filed a memorandum in support, and Father filed a memorandum in opposition
    (MIO); Mother filed a response to the memorandum in opposition, and Father filed a
    reply to Mother’s response. While we consider memoranda in support of our notice
    under Rule 12-210(D)(2) NMRA, “our [R]ules of [A]ppellate [P]rocedure do not provide
    for the filing of responses and replies back and forth between the parties to their
    memoranda in support of, or in opposition to, a calendar notice.” Landavazo v. N.M.
    Dep’t of Hum. Servs., 
    1988-NMCA-002
    , ¶ 5, 
    106 N.M. 715
    , 
    749 P.2d 538
    ; see Rule 12-
    210. Thus, we do not consider Mother’s response to Father’s MIO or Father’s reply
    thereto in deciding this appeal. See Landavazo, 
    1988-NMCA-002
    , ¶ 5 (refusing to
    consider the parties’ responses that were not contemplated by our rules). On the basis
    of Mother’s memorandum in support and Father’s memorandum in opposition, we
    remain unpersuaded that the district court erred and affirm.
    {2}     In Father’s MIO to our notice, Father now raises alternative arguments: the
    district court should restore his custody rights to Children [MIO 1-5, 8-11] or terminate
    his parental rights [MIO 5-7]. Father’s arguments related to the restoration of his
    custody rights were not raised in his docketing statement. [DS 4] New arguments raised
    in response to a calendar notice are treated as a motion to amend. See Rule 12-
    210(D)(2) (stating that “[t]he parties shall not argue issues that are not contained in
    either the docketing statement or the statement of the issues,” but permitting the
    appellant to move to amend the docketing statement upon good cause shown, which
    can be combined with a memorandum in opposition).
    {3}     In cases assigned to the summary calendar, this Court will grant a motion to
    amend the docketing statement to include additional issues if the motion (1) is timely;
    (2) states all facts material to a consideration of the new issues sought to be raised; (3)
    explains how the issues were properly preserved or why they may be raised for the first
    time on appeal; (4) demonstrates just cause by explaining why the issues were not
    originally raised in the docketing statement; and (5) complies in other respects with the
    appellate rules. See State v. Rael, 
    1983-NMCA-081
    , ¶¶ 7-8, 10-11, 14-17, 
    100 N.M. 193
    , 
    668 P.2d 309
    . This Court will deny motions to amend that raise issues that are not
    viable, even if they allege fundamental or jurisdictional error. See State v. Moore, 1989-
    NMCA-073, ¶¶ 36-51, 
    109 N.M. 119
    , 
    782 P.2d 91
    , superseded by rule on other grounds
    as recognized in State v. Salgado, 
    1991-NMCA-044
    , ¶ 2, 
    112 N.M. 537
    , 
    817 P.2d 730
    .
    {4}     Father does not explain how he preserved arguments relative to the restoration
    of his custody rights in district court or the grounds for the district court’s rulings, if any
    were made. The record suggests that Mother was granted sole and full custody of
    Children without objection from Father. [RP 134-35] And, the record before us does not
    contain any motion from Father seeking broader custody rights. [RP 172-73] We cannot
    and will not decide such custody matters for the first time on appeal. State v. Druktenis,
    
    2004-NMCA-032
    , ¶ 122, 
    135 N.M. 223
    , 
    86 P.3d 1050
     (“[G]enerally, [we will not] address
    issues not preserved below and raised for the first time on appeal.”). Father must seek
    such relief from the district court in the first instance. For these reasons, we deny the
    motion to amend the docketing statement and do not address this matter further. See
    Moore, 
    1989-NMCA-073
    , ¶¶ 36-51; Rael, 
    1983-NMCA-081
    , ¶¶ 7-8; see also Rule 12-
    208(D)(3), (4).
    {5}    Relative to Father’s alternative desire to have his own parental rights terminated,
    we remain unpersuaded that he has established district court error. Father’s admission
    to unidentified acts underlying criminal charges of child abuse not resulting in great
    bodily harm in exchange for entry into a preprosecution diversion program in a separate
    case, without further detail or reason from Father, does not demonstrate that the district
    court erred by refusing to terminate his parental rights under the Abuse and Neglect Act.
    [MIO 6] See State v. Mondragon, 
    1988-NMCA-027
    , ¶ 10, 
    107 N.M. 421
    , 
    759 P.2d 1003
    (stating that a party responding to a summary calendar notice must come forward and
    specifically point out errors of law and fact, and explaining that the repetition of earlier
    arguments does not fulfill this requirement), superseded by statute on other grounds as
    stated in State v. Harris, 
    2013-NMCA-031
    , ¶ 3, 
    297 P.3d 374
    .
    {6}   For the reasons stated above and in our notice, we affirm the district court’s order
    denying the motion to terminate Father’s parental rights.
    {7}    IT IS SO ORDERED.
    JACQUELINE R. MEDINA, Judge
    WE CONCUR:
    MEGAN P. DUFFY, Judge
    KATHERINE A. WRAY, Judge
    

Document Info

Filed Date: 9/6/2023

Precedential Status: Non-Precedential

Modified Date: 9/13/2023