Bourgoyne v. Bourgoyne

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 PATRICIA BOURGOYNE,
3 Petitioner-Appellee,
4 v. NO. 33,916
5 STEPHANIE BOURGOYNE n/k/a
6 STEPHANIE BALDWIN,
7 Respondent-Appellant,
8 and
9 IN THE MATTER OF THE KINSHIP
10 GUARDIANSHIP OF SEAN B. and
11 MICHAEL B.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Elizabeth E. Whitefield, District Judge
14 Atkinson & Kelsey, P.A.
15 Tatiana D. Englemann
16 Albuquerque, NM
17 for Appellee
18 Harris Law
19 Don F. Harris
20 Albuquerque, NM
21 for Appellant
1 Laura Cass
2 Albuquerque, NM
3 Guardian Ad Litem
4 MEMORANDUM OPINION
5 VANZI, Judge.
6 {1} Respondent Stephanie Bourgoyne k/n/a Stephanie Baldwin (Appellant) appeals
7 from the district court’s order adopting the guardian ad litem’s (GAL)
8 recommendations and declining to revoke guardianship. This Court’s first calendar
9 notice proposed to affirm the district court. Appellant filed a memorandum in
10 opposition. The children’s guardian, Patricia Bourgoyne (Appellee), filed a
11 memorandum in support of this Court’s proposed disposition. We are not persuaded
12 by Appellant’s arguments and affirm the district court’s order.
13 {2} Appellant continues to argue that the GAL’s report was inadmissible hearsay,
14 and the district court’s reliance on it for its judgment cannot be said to be harmless.
15 [MIO 2] To the extent Appellant argues it was predicated on inadmissible hearsay
16 statements, we disagree. See Thomas v. Thomas, 1999-NMCA-135, ¶ 25, 128 N.M.
17 177, 991 P.2d 7 (recognizing that bases of GAL’s expert opinion on whether child was
18 abused need not be admissible in evidence under Rule 11-703 NMRA and “[t]here is
19 no requirement that the trial court hear direct testimony from individuals, be they
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1 counselors, teachers, medical professionals, or others, to whom the GAL has spoken
2 in coming to her recommendations”).
3 {3} Insofar as Appellant argues it was also prejudicial, we conclude that any
4 prejudice was outweighed by the highly probative value of the GAL’s opinion in this
5 type of case. The GAL has a duty to investigate the circumstances surrounding the
6 petition for guardianship, visit the child’s home, and interview the guardian and
7 parents. NMSA 1978, § 40-10B-10(A) (2001). The GAL has direct contact with the
8 children and acts as a “‘best interests attorney’ who shall provide independent services
9 to protect the child’s best interests . . . who shall make findings and recommendations”
10 and “fil[e] the recommendations with the court.” Rule 1-053.3(C) & (F)(4) NMRA;
11 see also § 40-10B-10(C) (requiring guardian ad litem to “report to the court
12 concerning the best interests of the child”). We therefore affirm the admission of the
13 GAL report into evidence. See Dewitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 13,
14 146 N.M. 453, 212 P.3d 341 (“With respect to the admission or exclusion of evidence,
15 we generally apply an abuse of discretion standard where the application of an
16 evidentiary rule involves an exercise of discretion or judgment[.]”); Thomas,
17 1999-NMCA-135, ¶ 25 (finding no error in the court’s adoption of the GAL’s
18 recommendation, as it not uncommon since the GAL has direct contact with the
19 children).
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1 {4} Appellant continues to argue that the district court erred in denying her
2 discovery requests for the children’s medical, therapist, and school records in order
3 to rebut the GAL’s opinion. [MIO 8-9] This Court reasoned that it was not an abuse
4 of discretion because it was unlikely these records contained any information to assist
5 Appellant in showing a change of circumstances. [CN 6] Appellant asserts that she
6 wanted access to all of the records justifying the GAL’s opinion and preventing her
7 from seeing the children. [MIO 8]
8 {5} We conclude that Appellant has not met her burden of showing an abuse of
9 discretion in the district court’s ruling to limit the discovery of these records. See
10 DeTevis v. Aragon, 1986-NMCA-105, ¶ 10, 104 N.M. 793, 727 P.2d 558 (“Although
11 the rules favor allowance of liberal pretrial discovery, the trial court is vested with
12 discretion in determining whether to limit discovery.” (citation omitted)). The district
13 court reasoned that limited releases of the therapist’s records could be signed so that
14 Appellant would be aware of any therapeutic recommendations for the children. [RP
15 218] We cannot say that releasing certain records for this limited purpose was an
16 abuse of discretion. See Reaves v. Bergsrud, 1999-NMCA-075, ¶ 13, 127 N.M. 446,
17 982 P.2d 497 (stating that an abuse of discretion “occurs when the [district] court’s
18 ruling is against the facts, logic, and circumstances of the case or is untenable or
19 unjustified by reason”). Appellant has not shown how the records were demonstrably
20 relevant, in particular, to her burden of showing that her circumstances changed such
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1 termination of the guardianship was warranted. See id. ¶ 23 (stating that, where the
2 requested information is not demonstrably relevant to the proponent’s claims, a
3 district court does not abuse its discretion in denying discovery); see also Romero v.
4 Bd. of Cnty. Comm’rs, 2011-NMCA-066, ¶ 7, 150 N.M. 59, 257 P.3d 404 (“[W]e can
5 affirm if the district court was correct for any reason that was before it on the basis of
6 the presentations of the parties.”). Therefore, we conclude that Appellant has not
7 shown how she was prejudiced. See Doe v. Roman Catholic Diocese of Boise, Inc.,
8 1996-NMCA-057, ¶ 21, 121 N.M. 738, 918 P.2d 17 (stating that the party challenging
9 a limitation on discovery must show an abuse of discretion and prejudice).
10 {6} Appellant continues to assert that there was insufficient evidence to support the
11 district court’s decision. [DS 12, MIO 6, 12] It was Appellant’s burden to prove a
12 change in circumstances and that the revocation was in the children’s best interests.
13 See NMSA 1978, § 40-10B-12(B) (2001). This Court’s first notice proposed to
14 conclude that the GAL’s opinion provided justification for the conclusion that
15 Appellant failed to demonstrate that, in the seven years since the children were placed
16 in the Appellee’s care, there was a change of circumstances, or that the revocation was
17 in the children’s best interests. [CN 6-7] The children had been in Appellee’s care for
18 seven years with little contact or financial assistance from Appellant; Appellant had
19 not demonstrated an ability to parent; Appellant went approximately six (6) years
20 without consistent visits with the children; Appellant started but did not complete
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1 parenting classes; the children’s therapists had significant concerns about their contact
2 with Appellant; Appellee provided many special services for the children through
3 referrals to specialized providers to meet their emotional and basic needs; and
4 Appellee and the children were very bonded to each other. [RP 147-149] We cannot
5 say it was an abuse of discretion to rule that, based on these factual circumstances,
6 keeping the guardianship in place was in the children’s best interests. See Campbell
7 v. Alpers, 1990-NMCA-037, ¶ 20, 110 N.M. 21, 791 P.2d 472 (recognizing that “in
8 child custody modification proceedings, there is a presumption of reasonableness in
9 favor of the previous custody order, and the burden is on the party seeking a
10 modification to show that there has been a substantial change of circumstances
11 affecting the child’s welfare”).
12 {7} Appellant further argues that the district court did not properly apply the
13 parental preference presumption at the revocation hearing and instead required
14 Appellant to bear the burden of proof throughout the entire proceeding. [MIO 4] See
15 NMSA 1978, § 40-10B-2(A) (2001) (“It is the policy of the state that the interests of
16 children are best served when they are raised by their parents.”). Appellant asserts
17 that, although she bore the initial burden of proof of showing changed circumstances,
18 the statute is silent on which party bears the burden of proof after the parent has
19 demonstrated changed circumstances. [MIO 4-5] We need not address this argument
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1 because we conclude that Appellant did not meet her initial burden of demonstrating
2 changed circumstances or that revocation was in the best interests of the children.
3 {8} For all of the above reasons and those stated in this Court’s first notice of
4 proposed disposition, we affirm.
5 {9} IT IS SO ORDERED.
6 __________________________________
7 LINDA M. VANZI, Judge
8 WE CONCUR:
9 _________________________________
10 RODERICK T. KENNEDY, Judge
11 _________________________________
12 J. MILES HANISEE, Judge
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