Wasson v. Wasson

HERNANDEZ, Judge

(dissenting).

I respectfully dissent.

I recognize that the use of the word “may” in the opening sentence of § 22-2-23, supra, clearly indicates a legislative intention that the termination of parental^ rights under this section should rest in the sound discretion of the trial court. However, it is my opinion that there was an abuse of that discretion in this instance.

For point of emphasis, I wish to repeat the following findings and conclusions of the trial court:

“2. Since the time of the divorce, Respondent has willfully failed to support the children or to provide for their financial, emotional, educational or spiritual needs.

“3. Since the time of the divorce Respondent has not maintained a parental relationship with the children and has performed none of the duties normally performed by a father.”

The following, although entitled findings, are in fact conclusions:

“4. No parent-child relationship exists between Respondent and the children.

“5. Respondent has abandoned the children.”

These findings were supported by clear and convincing evidence.

Section 22-2-23, supra, is the statutory embodiment of a long standing rule of law in New Mexico, namely; that parental rights although entitled to considerable legal deference are not absolute and are subject to control or termination by legislative or judicial action. See Focks v. Munger, 20 N.M. 335, 149 P. 300 (1915); Shorty v. Scott, 87 N.M. 490, 535 P.2d 1341 (1975). I also recognize that there is another long standing rule, and that is, in all matters involving child-parent relationships, principle consideration should be given to what the best interests and welfare of the child are. Pra v. Gherardini, 34 N.M. 587, 286 P. 828 (1930). The trial court gave as its reason for refusing to terminate respondent’s parental rights “was concern with the property rights of the children.” There is nothing in the record to indicate that the respondent has or will possibly ever have anything to leave to his children. To continue the child-parent relationship upon the vague possibility that the children might receive some benefits upon respondent’s death in light of the trial court’s own findings that respondent has not fulfilled one of his duties of parenthood is an abuse of discretion, in my opinion. Accordingly, I would reverse the order of the trial court.