State Ex Rel. Children, Youth & Families Department v. JOE R. , 122 N.M. 284 ( 1996 )

OPINION

FLORES, Judge.

1.Respondent-Appellant (Father) appeals from the children’s court’s order granting summary judgment which terminated' Father’s parental rights. The points on appeal all relate to the central issue of whether the children’s court improperly determined that Father’s act of murdering Mother established neglect, as a matter of law, thereby justifying the termination of Father’s parental rights. We reverse on the basis that termination of Father’s parental rights as a matter of law by summary judgment procedure was not appropriate and therefore remand for a hearing on the merits.

FACTS

2. On May 11,1994 Father was convicted of first degree murder and false imprisonment of Mother. Father was sentenced to life in prison plus eighteen months and will not be eligible for parole for approximately thirty years. On June 23,1994 the Children, Youth & Families Department (Department) filed a motion for termination of parental rights. Thereafter, on September 26, 1994, the Department filed a motion for summary judgment. Referring to Father’s murder of Mother and resulting incarceration, the Department alleged the child was neglected and that, as a matter of law, Father’s parental rights should be terminated.

3. On May 2, 1995 the children's court entered an order granting summary judgment in favor of the Department. The order granting summary judgment recites the children’s court’s findings that Father’s murder of Mother proves a failure by Father to appreciate the impact of his actions on the emotional and physical well-being of the child; that the child has been neglected and that the causes and conditions which led to the abuse are unlikely to change in the foreseeable future; and that it is in the child’s best interests that Father’s parental rights be terminated. In essence, the children’s court ruled that Father’s murder of Mother and subsequent incarceration constituted neglect per se, thereby justifying termination of his parental rights. It is from this order granting summary judgment that Father appeals.¹

DISCUSSION

4. The grounds for termination of parental rights must be proved by clear and convincing evidence. NMSA 1978, § 32A-4-29(J) (Repl.Pamp.1995); In re Adoption of Doe, 98 N.M. 340, 345, 648 P.2d 798, 803 (Ct.App.), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982) {Doe I). Thus, a children’s court’s decision terminating parental rights will be upheld so long as the grounds for termination are supported by clear and convincing evidence and so long as the children’s court applied the proper rule of law. In re C.P., 103 N.M. 617, 621, 711 P.2d 894, 898 (Ct.App.1985), cert. denied (N.M. Dec. 6, 1985).

5. A neglected child includes “a child: (1) who has been abandoned by the child’s parent ...; (2) who is without proper parental care ... necessary for the child’s well-being because of the faults or habits of the child’s parent ...; [or] (4) whose parent ... is unable to discharge his responsibilities to and for the child because of incarceration.” NMSA 1978, § 32A-4-2(C)(l), (2), (4) (Repl.Pamp.1995); In re Adoption of Doe, 99 N.M. 278, 281, 657 P.2d 134, 137 (Ct.App.1982), cert. denied, 99 N.M. 358, 658 P.2d 433 (1983) (Doe II). The two-part test for abandonment requires proof of parental conduct that implies a conscious disregard of parental obligation and evidence that the parent-child relationship was destroyed by the parental conduct. In re Adoption of J.J.B., 119 N.M. 638, 648, 894 P.2d 994, 1004, cert. denied, — U.S. -, 116 S.Ct. 168, 133 L.Ed.2d 110 (1995); In re C.P., 103 N.M. at 621, 711 P.2d at 898.

6. The Department contends, and the children’s court ruled, that Father’s murder of Mother constitutes neglect of the child as a matter of law in that Father’s action permanently deprived the child of her Mother and demonstrated a complete failure by Father to respect child’s developmental and emotional needs. We disagree that Father’s murder of Mother and subsequent incarceration, standing alone, establishes neglect as a matter of law for terminating Father’s parental rights. Cf. In re S.B., 742 P.2d 935, 939 (Colo.Ct.App.1987) (indicates that father’s murder of child's mother was, as a matter of law, grounds for termination of parental rights), cert. denied, 754 P.2d 1177 (1988).

7. We note that the children’s court, prior to the termination proceedings, had determined in earlier custody proceedings that the child was neglected and abused. Subsequently, in conjunction with the separate termination proceedings, the children’s court found the child to be neglected with the causes and conditions which led to the abuse unlikely to change. The State apparently argued below that the children’s court could properly take judicial notice of its prior findings in conjunction with the custody proceedings that the child was neglected. It is unclear, however, from the children’s court’s March 23, 1995 letter-decision and the May 2, 1995 order granting summary judgment whether the children’s court took judicial notice of the prior proceedings to determine that the child was neglected and that such neglect was unlikely to change.

8. Nevertheless, we hold that under the circumstances of this case, it would be improper for the children’s court to rely on its prior finding of neglect for purposes of the termination proceedings. First, custody arrangements are an entirely different matter than termination proceedings. Father’s motivation to not contest the custody arrangements would most likely be quite different from Ms motivation to fight the termination of his parental rights. Father understandably may have determined that, given Ms incarceration, the custody arrangement was in Ms child’s best interests. Further, although the children’s court also had previously found that any efforts to reurnte the child with Father would be futile, tMs finding was made in the context of a custody hearing. As stated in Father’s response to summary judgment, the child had expressed a desire to see Father. Father should have been afforded an evidentiary hearing to address, among other questions, whether tMs desire was such that the parent-child relationship was not destroyed. In short, the stakes are Mgher in termination proceedings. Second, it is unclear whether the prior neglect determination made in the custody hearings was made as a matter of law, based on the criminal acts and incarceration underlying Father’s conviction. As set forth in Doe II, 99 N.M. at 282, 657 P.2d at 138, the termination of parental rights involves questions of fact, not matter of law conclusions. Therefore, to take judicial notice in a termination proceeding of a previous determination (not involving the termination of parental rights) that was made as a matter of law would be improper.

9. Although Father does not dispute the facts of Ms conviction or subsequent incarceration, he does dispute the legality of relying on the foregoing evidence alone to support a determination that Ms parental rights should be terminated as a matter of law. We recognize that Section 32A-4-2(C)(4), provides that a neglected child consists of a child “whose parent ... is unable to discharge Ms responsibilities to and for the child because of incarceration ...,” and that NMSA 1978, Section 32A-^-28(B)(2) (Repl. Pamp.1995), states that parental rights shall be terminated when a child has been neglected and the causes and conditions of the abuse and neglect are unlikely to change in the foreseeable future. However, we do not construe these statutory provisions to mean that incarceration alone constitutes neglect as a matter of law, thus resultmg in the termination of parental rights. Further, we believe that the dissent does not acknowledge that the record is unclear as to whether the children’s court focused too much on the word incarceration in Section 32A-4-2(C)(4) without properly focusing on the first part of the section, or, more specifically, whether Father is “unable to discharge his responsibilities to and for the child because of incarceration.” (Emphasis added.) Circumstances may be present, for example, in wMeh a parent is incarcerated, yet is still able to maintain a parental relationsMp with a child.

10. Because of parents’ fundamental liberty interests in the care, custody, and management of their children, see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982), this Court is loathe to terminate a parent’s parental rights without first affording the parent an evidentiary hearing. For tMs reason, we rely on New Mexico case law that discourages per se termination as a matter of law and recognizes that the termination of parental rights often involves umque questions of fact. See Doe II, 99 N.M. at 282, 657 P.2d at 138.

11. Accordingly, we view incarceration of a parent, even when resulting from an act of murder, as only one factor to be considered in a determination of whether abandonment has occurred. Id. (“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.”); see also In re C.P., 103 N.M. at 621, 711 P.2d at 898. For example, in Doe II, similar to the facts of tMs case, the father murdered the child’s mother, as well as shooting the grandmother. 99 N.M. at 279, 657 P.2d at 135. Unlike the present case, however, in Doe II, the father’s parental rights were not terminated as a matter of law. Instead, a hearing was held wherein the parties presented evidence on their behalf, and the children’s court entered findings. The children’s court in Doe II found that “[t]he murder of the mother by the father struck at the heart of the family. The conviction proved the father’s inability to appreciate the impact of his actions on the child and to respect the emotional and physical needs of the child.” Id. at 282, 657 P.2d at 138. Contrary to the present case, the foregoing finding was not made as a matter of law, based on the father’s murder of the mother, but instead was made after an evidentiary hearing.

12. Although we hold that Father’s murder of Mother is not per se grounds for termination, we note that the nature of the underlying crime is, of course, a relevant and important factor to be considered by the children’s court on remand. See, e.g., In re Adoption of Children by L.A.S., 134 N.J. 127, 631 A.2d 928, 935 (1993) (the underlying crime giving rise to incarceration is a factor bearing on parental capacity to providé proper care and to avoid harm to the child); see also Wray v. Lenderman, 640 S.W.2d 68, 71 (Tex.Ct.App.1982) (the parent’s questioned conduct need not be directed toward child nor cause child physical harm to qualify as conduct which endangers the emotional well-being of the child).

13. Other factors for the children’s court to consider on remand include the kinds of contacts and communications between the parent and child that can be achieved; the nature of the counselling, advice, and instruction that the parent can give the child; the effects of the attempted continuation of the parental relationship on the stability and security of the child’s life; and the impact of the relationship on the child’s psychological and emotional well-being. See In re Adoption of Children by L.A.S., 631 A.2d at 936; see also In re B.H.M., 799 P.2d 1090, 1095 (Mont.1990) (following a hearing, termination of parental rights of mother who was incarcerated for her part in murder of children’s father was justified; the trial court considered the needs and whole situation of the children, the history of violence by the mother, and the long term confinement of the mother); In re Sego, 82 Wash.2d 736, 513 P.2d 831, 833 (1973) (en bane) (where father murdered the mother: “[i]t is necessary to consider each case on its own facts---- [A] parent’s inability to perform his parental obligations because of imprisonment, the nature of the crime committed, as well as the person against whom the criminal act was perpetrated are all relevant to the issue of parental fitness and child welfare, as [is] the parent’s conduct prior to imprisonment and during the period of incarceration.”) (citations omitted); In re Adoption of J., 73 N.J. 68, 372 A.2d 607 (1977) (per curiam) (the supreme court reversed the court of appeals’ decision of In re Adoption of J., 139 N. J.Super. 533, 354 A.2d 662 (App.Div.1976), and adopted the position of the dissenting judge in that case for the proposition that a court must look beyond the crime itself and examine the nature of the parent’s ongoing relationship with the child).

14.We emphasize that by holding that a factual inquiry is necessary in the present ease, we are not holding that a summary judgment proceeding may never be an appropriate procedure to terminate parental rights. To the contrary, where there are no underlying issues of fact in dispute, summary judgment may be appropriate. See State ex rel. Children, Youth, & Families Dep’t In re T.C., 118 N.M. 352, 353, 881 P.2d 712, 713 (Ct.App.1994); see also Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992) (“Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.”). As discussed above, however, the children’s court disregarded the proper factual inquiries in the present case and instead terminated Father’s rights as a matter of law based on his murder of Mother and subsequent incarceration. The focus in this ease should not be whether Father’s parental rights should be terminated as a matter of law, but whether the results of a proper factual inquiry are such that Father’s parental rights should be terminated. In this regard, we note the State’s failure to comply with SCRA 1986, 1-056(D)(2) (Repl.1992), which requires that a memorandum in support of summary judgment be filed setting forth “a concise statement of all the material facts as to which the moving party contends no genuine issue exists.” In matters regarding the termination of parental rights, we emphasize the importance of compliance with the applicable rules. Thus, in the present case, we are not holding summary judgment can never be an appropriate vehicle by which to terminate parental rights. Rather, we are holding that, pursuant to Doe II, the proper factual inquiries must be made and, as noted above, the requirements set forth in SCRA 1-056 must be scrupulously followed.

15.Lastly, we address Father’s argument that the issue of whether or not his parental rights should be terminated is premature in that his criminal conviction is pending on appeal.² Father contends that in the event his conviction was overturned on appeal, he would have been “unequivocally deprived of the opportunity to resume his parental role if his parental rights are terminated prematurely” and termination of his parental rights would not afford him the “protection and deference he deserves as a natural parent.” In the present ease, prior to our Supreme Court’s decision, there was no indication whether reversal of Father’s murder conviction was likely. To the contrary, Father’s attorney at the summary judgment hearing acknowledged that reversal of the murder conviction was unlikely. Thus, under the facts of this case, we would have disagreed with Father’s position and, instead, held that the child’s interest in some degree of permanency, stability, security, and long-term planning was paramount. See, e.g., In re T.T., 845 P.2d 539, 541 (Colo.Ct.App.1992) (mother’s parental rights could be terminated prior to determination of her appeal of her criminal conviction), cert. denied (Feb. 16, 1993). Father has been convicted for the murder of the child’s Mother. Under such circumstances, any deference accorded to Father is lessened. Moreover, in circumstances such as the present, we would be unwilling to speculate whether or not a stay of termination proceedings would or would not result in the child leaving her present environment. Nor can we say that a delay of any adoption proceedings would not hinder a feeling of stability and bonding by child in her present caretakers. Accordingly, we would have declined to stay the termination proceedings.

CONCLUSION

16. For the reasons set forth herein, we reverse and remand for a hearing on the merits addressing whether Father’s parental rights should be terminated. Father’s request for attorney fees on appeal is denied.

17. IT IS SO ORDERED.

APODACA, C.J., concurs. DONNELLY, J., dissents.

1 . We are unable to teE from the record to what extent the alternative issue of abandonment was argued by the Department and relied upon by the judge below (although Father’s counsel clearly discussed the issue at the hearing on the motion for summary judgment). However, because an appellee may argue any grounds for affirmance on appeal and we will uphold the lower court’s decision if it is legally mandated, regardless if the court’s rationale was incorrect, Bruch v. CNA Ins. Co., 117 N.M. 211, 212, 870 P.2d 749, 750 (1994), and because Father discussed the issue in the hearing as if it had been raised, cf. State v. Ramzy, 116 N.M. 748, 751, 867 P.2d 418, 421 (Ct.App.1993), cert. denied, 116 N.M. 801, 867 P.2d 1183 (1994), we address the issue of abandonment as well as that of incarceration.

2 . Following submission of the parties’ briefs and oral argument, our Supreme Court affirmed Father’s convictions for first degree murder and false imprisonment of Mother. See State v. Ross, 122 N.M. 15, 919 P.2d 1080 (1996). This would appear to make this issue moot. However, our discussion here is relevant to the extent Father files a motion for rehearing or any other action in connection with his conviction.