Huey v. Lente

HERNANDEZ, Judge

(specially concurring).

I concur in the reversal of the lower court’s decision and the order to return the child to his natural mother. I do not agree that the termination statute is unconstitutional; I believe this case should be decided on non-constitutional grounds. In the following opinion I have first set out my disagreements with Judge Sutin’s opinion and then have discussed the reasons why I think the trial court’s judgment should be reversed.

(1) The vagueness. of the termination statute.

I do not agree that § 22-2-23, supra, is vague and indefinite. Its sole purpose is to relieve unfit parents of all parental rights and responsibilities. Therefore, the phrase “has the same effect” as used in subsection E of the termination statute, in my opinion, must be construed to incorporate only the language of subsection A(l) of the adoption statute, § 22-2-33, N.M.S. A. 1953 (1971 Supp.Vol. 5). Under the statute there may well be some period of time after the natural parent’s rights are terminated and before an adoption proceeding is completed and parental rights in others created, if ever. I do not see this as a constitutional defect. In other words, a statute such as this need not create parental rights in other persons to be constitutional.

(2) The problem of consent and notice under § 22-2-23, supra.

In my opinion Judge Sutin erroneously mixes the two entirely separate concepts of notice and consent in determining that the statute “deprives a parent permanently of his child without consent, or without-notice or opportunity to be heard.” Section 22-2-23, supra, does not dispense with notice to the natural parents with respect to a termination hearing. Subsection D, § 22-2-23, supra, requires that:

“Notice of the filing of the application, and of the time and place of the hearing, accompanied by a copy of the application shall be given by the applicant to the parents of the minor, the custodian of the minor, any person appointed to represent any party and any other person the court orders. [Emphasis mine]

Notice, however, has nothing to do with parental consent. The termination statute sets out clear guidelines under which a parent’s rights in a child may be cut off. The consent of the parents is not required. Virtually every state adoption statute in this country contains some grounds under which adoption petitions may be granted without the consent of the parents.

“ . . . [M]ost jurisdictions recognize that there are some situations where express consent is not required. In those situations, consent is either implied on the basis of neglectful conduct on the part of the natural parent or dispensed with entirely on the basis of conduct or occurrences which, while involuntary, have the same consequences toward the child as neglectful conduct.” Katz, When Parents Fail: The Law’s Response to Family Breakdown, 115-116 (1971).

The New Mexico adoption statute contains certain specified grounds under which consent to the adoption petition from “a parent who has abandoned or deserted the minor to be adopted” is not required. Section 22-2-26 (A), N.M.S.A.1953 (1971 Supp.Vol. 5).

There are times when the overwhelming interests of the child require that his family situation be remedied irrespective of the consent of his natural parents. The fact that parental consent is not required under § 22-2-23, supra, does not render the statute unconstitutional on either due process or “public policy” grounds.

I agree that the decision of the lower court should be reversed; however, I would reverse solely for the reasons set out below.

This appeal is the first proceeding to be brought under the termination statute, and as such involves a number of questions of first impression. Section 22-2-23, supra, was enacted as a part of the revision of the New Mexico adoption statute and provides that upon a proper showing, certain specified parties may bring an action in district court requesting that a natural parent’s parental rights in his or her children be severed. The effect of such a termination is nothing less than complete and final extinction of a parent’s legal rights in a child.

As grounds for termination of parental rights, an applicant under § 22-2-23, supra, must show, in the alternative, that:

“(1) cause [for termination] exists under any law, other than the Adoption Act; “(2) the minor has been abandoned by the parent; or

“(3) the minor is without proper parental care and control, or subsistence, education or other care or control necessary for his physical, mental or emotional health or morals, by reason of the misconduct, faults or habits of the parent or the neglect or refusal of the parent, when able to do so, to provide them or by reason of physical or mental incapacity of the parent to provide necessary parental and other care for the minor, if the court finds that the conditions and causes of such behavior, neglect or incapacity are irremediable or will not be remedied by the parent, and that by reason thereof the minor is suffering or will probably suffer serious physical, mental or emotional harm.”

The Hueys are licensed by the New Mexico Health and Social Services Department (HSSD) as foster parents. As such they take children assigned to them under written agreement with HSSD and provide parental care for temporary periods for children whose parents are unable to do so. The record reveals that the Hueys have taken in several children under the foster parent plan including the child in question here, Jesse Lente.

Because of other medical problems which required immediate attention, Mrs. Lente remained in the hospital for a substantial period after the birth of Jesse and was unable to care for him. Under the terms of a written agreement with HSSD Mrs. Lente voluntarily gave up care of the child for “boarding < home placement in a home to be selected by the New Mexico Department of Public Welfare [HSSD].” It was apparently understood by both Mrs. Lente and representatives of HSSD at the time of the signing of this agreement that her relinquishing of custody was to be temporary until such time as her medical and financial situation permitted her to properly care for the child.

Sometime after Mrs. Lente had released Jesse to HSSD, HSSD sent Jesse to the Hueys under the standard foster parent written agreement. Except for short periods of visitation with Mrs. Lente the child has remained with the Hueys since that time.

After Mrs. Lente was released from the hospital and had regained her health and secured some financial support, she tried to get her child back. Through a series of almost incredible mixups HSSD lost track of the child, and as a consequence Jesse remained in the Huey home for over two years despite Mrs. Lente’s efforts to locate him and to regain custody. When HSSD finally relocated Jesse, a staff conference was held in which it was determined that the child should be returned to his mother. The department notified both Mrs. Lente and the Hueys of the decision and set a date for Jesse’s return. Shortly before that date, the Hueys brought this action.

The trial court found in favor of the Hueys and ordered the parental rights of Mrs. Lente terminated. I would reverse for two reasons. First, the Hueys were given temporary custody of Jesse subject to the provisions of a written agreement establishing an agency relationship between themselves, HSSD and Mrs. Lente. By bringing this action they breached the duty of loyalty to principal inherent in such situations. Second, the findings of the trial court relating to the inability of Mrs. Lente to be a fit and proper parent for Jesse are not supported by substantial evidence in the record.

(1) The written agreement between the Hueys and HSSD.

The agreement executed between the Hueys, as foster parents, and HSSD provides, in part, that:

“Applicants agree that they will:

“2. Leave to the agency the making of plans for foster children, including parental visiting, placement changes, and return to parents and relatives, and cooperate with the agency in carrying out these plans.

“3. Engage in no adoptive planning for foster children except with agency authorization.” [Emphasis mine]

Petitioners argue that this agreement is irrelevant to this action between the Hueys and Mrs. Lente. I disagree. The contract is relevant and must be read in conjunction with the agreement signed by Mrs. Lente when she voluntarily relinquished custody of Jesse to HSSD for temporary boarding purposes. Since I believe that both agreements are relevant to this action this court must characterize the relationship existing between Mrs. Lente and HSSD and, secondarily, between HSSD and the Hueys. Read together, I conclude that both documents create what is in essence an agency relationship between the parties.

“It is not necessary that the parties intend to create the legal relationship of agency or to subject themselves to the liabilities which the law imposes upon them as a result of it, but only that the principal has in some manner indicated that the agent is to act for him, and that the agent so acts or agrees to act on his behalf and subject to his control.”

Totah Drilling Company v. Abraham, 64 N.M. 380, 328 P.2d 1083 (1958). Mrs. Lente, as principal, contracted with HSSD for the temporary boarding care of her child while she remained in the hospital. The agreement was understood by both parties to mean that Mrs. Lente would resume caring for her child at such time as she was physically able. HSSD assumed the responsibility for seeing to the physical needs of the child. Since in practice HSSD does not have the facilities or personnel for actual day-to-day care of children, the department in turn entered into an agreement with the Hueys for the care of the child under an agreement expressly reserving to HSSD and to the child’s relatives the responsibility for planning for the child’s future, including the return of the child either to the agency or to the child’s parents. Thus, the Hueys were agents of HSSD for the purpose of providing the day-to-day care of the child and were sub-agents of Mrs. Lente because of her agreement with HSSD. The Restatement of Agency defines a sub-agent as:

“. . . a person appointed by an agent empowered to do so, to perform functions undertaken by the agent for the principal, but for whose conduct the agent agrees with the principal to be primarily liable.” Restatement (Second), Agency § 5(1) (1958).

If the Hueys were agents of HSSD and sub-agents of Mrs. Lente, it is clear that they occupied the position of a fiduciary with respect both to the department and to Mrs. Lente and were subject to the various duties of fiduciaries including the duty of loyalty. “The general rule is that he who undertakes to act for another in any matter of trust or confidence shall not in the same matter act for himself against the interest' of the one relying upon his integrity.” Rice v. First National Bank, 50 N.M. 99, 171 P.2d 318 (1946); Canfield v. With, 35 N.M. 420, 299 P.2d 351 (1931).

The Hueys owed a duty of loyalty both to HSSD and to Mrs. Lente and by filing this action breached that duty. That the Hueys may have initially entered into the agreement in good faith and with no intent to breach is not material. “It is of little moment whether an agreement of agency is made with fraudulent intent, or the agent succumbs to covetousness after he enters upon his duties . . .” Rice v. First National Bank, supra. Accordingly, since the initiation of this action and the attempt to terminate Mrs. Lente’s parental rights occurred while the Hueys were in a fiduciary relationship with her, they should not be permitted to prevail in the matter.

I do not believe that it is either appropriate or wise to permit persons who take children under the clear and unambiguous terms of the HSSD foster parent agreement to maintain actions to terminate the parental rights of natural parents who have turned their children over to HSSD under what they assume to be a temporary period subject to their wishes and desires. I believe that to hold otherwise would impair the HSSD .foster parent plan and would subject parents who agree to temporary boarding of their children to the possible permanent loss of their rights in their children at the wish of whoever happens to have physical custody of the child.

(2) Substantial Evidence to Support the Relevant Findings of Fact.

As a threshhold matter, a large part of the focus of the trial court’s findings and the greater part of the petitioners’ presentation of evidence involved matters which I would hold to be irrelevant as a matter of law. Findings of the trial court 50 through 59 (numbers converted from roman numerals) deal with the Huey’s suitability as adoptive parents. These findings are not relevant to a proceeding under § 22-2-23, supra. By the clear and unambiguous language of the statute, the sole consideration to be applied in termination proceedings is the relationship of “a parent with respect to a minor.” § 22-2-23, supra. A comparative analysis as to which of the parties may provide the better custody for the child is not within the scope of this proceeding. Cf. Nevelos v. Railston, 65 N.M. 250, 335 P.2d 573 (1959).

Termination .of the rights of a natural parent in a child is not a matter to be taken lightly. As our Supreme Court pointed out in Nevelos v. Railston, supra, “[t]he relationship between parent and child is a bundle of human rights of . fundamental importance” and because of this importance any statutes which purport to alter or abolish this relationship “being in derogation of common law are to be construed strictly in favor of the parent and the preservation of the relationship" [Emphasis mine]

Because of the fundamental importance of a termination action and because there is nothing in the express language of the statute which persuades me that the legislature intended a different burden I see no reason to depart from the burden of proof imposed by the Supreme Court in other actions of a similar nature which involve the severing of the parent’s rights. The burden of proof to be assumed by any party seeking termination is that unfitness of the natural parent must be demonstrated by evidence which is clear and convincing. Nevelos v. Railston, supra; Cf. Petition of Quintana, 83 N.M. 772, 497 P.2d 1404 (1972). In Nevelos the Supreme Court used the phrases “clear and satisfactory, something almost akin to proof beyond a reasonable doubt, or by ‘clear and indubitable evidence.’ ” I am convinced that what the Court in Nevelos meant was that burden of proof which is “something stronger than a mere ‘preponderance’ and yet something less than ‘beyond a reasonable doubt.’ ” In re Palmer, 72 N.M. 305, 383 P.2d 264 (1963) ; Lumpkins v. McPhee, 59 N.M. 442, 286 P.2d 299 (1955). Nothing in this record indicates that the trial court applied this stricter burden of proof.

None of the findings of fact relevant to the natural mother’s relationship to the child and her ability to properly care for the child are supported by substantial evidence in the record. Substantial evidence has been defined as “such relevant evidence as a reasonable mind might accept as adequate support for a conclusion.” Samora v. Bradford, 81 N.M. 205, 465 P.2d 88 (Ct.App.1970); McCauley v. Ray, 80 N.M. 171, 453 P.2d 192 (1968).

Findings 42 through 49 are mere recitations of the applicable statutory considerations imposed by § 22-2-23, supra, phrased in conclusory language. An appellate court is not bound to accept such conclusions as ultimate facts. Gillespie v. O’Neill, 38 N.M. 141, 28 P.2d 1040 (1934).

Findings of fact 5 through 9, 25 through 31, and 34 through 39 concern the birth of Mrs. Lente’s seven children and their illegitimacy. I am not disposed to say conclusively that illegitimacy of large numbers of children may not be a factor in an overall determination of parental fitness; but as the trial court itself noted, under the termination statute,

“. . . the important test here, evidentally [sic] is assuming you have the situation as described in the statute, the Court has to find that it either cannot be remedied or will not be remedied.”

The uncontradicted testimony of Mrs. Lente was that she submitted to a tubal ligation, an operation which renders her incapable of bearing more children, shortly after the birth of Jesse. The findings of fact relating to the illegitimate births of Mrs. Lente’s children do not support the conclusion of law that her behavior is “irremedial and will not be remedied.”

Finding of fact number 40 states in part that Jesse “visited with Respondent Mary Lente, and was compelled to sleep in the same room with Mary Lente who slept with another man. . . .” A thorough search of the transcript reveals that the only support for this finding was the assertion of the Hueys that Jesse, the five year old subject of this action, had discussed the sleeping arrangements in Mrs. Lente’s home and that he had “another daddy.” No other witness gave direct testimony as to this “other man”; the representative of HSSD, who supervised both regular and unannounced visits of the Lente home, asserted that “. . . we do make unannounced visits and we have several times and there hasn’t been a man around.” If this finding was designed to indicate sexual irresponsibility on the part of Mrs. Lente, it was contradicted by the assertion of the casework supervisor who testified that “We don’t see Mrs. Lente as being promiscuous, and I have never viewed her as promiscuous. And I don’t think my workers have viewed her as promiscuous.” I conclude that the hearsay evidence on this point provided by Mr. and Mrs. Huey as related to them by a five year old child in the face of the contradictory evidence provided by the HSSD representatives who had observed the Lente home as a part of their official duties is not “such relevant evidence as a reasonable mind might accept as adequate support for a conclusion.” Samora v. Bradford, supra.

The findings of the trial court with respect to the adequacy of the Lente home, the financial situation of Mrs. Lente, the education of the children and the present habits and conduct of Mrs. Lente have no basis in competent evidence in the record. The uncontradicted evidence of the HSSD representatives and the visiting nurse, Mrs. Pecha, lead to the conclusion that while clearly not affluent, Mrs. Lente was providing an adequate home for the children, was looking after their education, and was capable of taking proper steps to insure their .health and regulate their conduct. The mere fact that she was and had been a welfare recipient is not evidence of unfitness. Findings for which there is a total lack of support in the record may be set aside. Lumpkins v. McPhee, supra; Ortega v. Ortega, 33 N.M. 605, 273 P. 925 (1928).

To summarize briefly, in termination proceedings brought under § 22-2-23, supra, the only evidence which should properly be considered by the trial court is that evidence which is relevant to the parent’s behaviour, attitude and relationship with the child. The court may not balance the backgrounds of the parties and decide which party may provide the “better” environment for the child. If such considerations are applicable they are applicable in adoption proceedings and not in actions brought to terminate the rights of a natural parent.

The evidence as to the parent’s fitness, must be such as to clearly and convincingly persuade the fact finder that the parent is unfit. A mere preponderance of the evidence is not sufficient.

Finally, findings by the trial court must be supported by substantial evidence in the record and may not be mere conclusions drawn in the language of the termination statute.

For these reasons only, I agree that the judgment of the lower court should be reversed and that the child should be immediately returned to his natural mother.