| (Cite
as: 107 N.M. 529, 760 P.2d 1295)
Court
of Appeals of New Mexico.
In
the Matter of the Termination of Parental Rights of LAURIE
R., Respondent,
and
with respect to the Child, Jean R.
LAURIE,
R., Respondent-Appellant,
v.
NEW
MEXICO HUMAN SERVICES DEPARTMENT, Petitioner-Appellee.
No.
10119.
June 14, 1988.
**1296 *530
Larry Van Eaton, Taos, for respondent-appellant.
Jennifer A. Salisbury,
Gen. Counsel, Susan K. Rehr, Asst. Gen. Counsel, Human Services Dept.,
Santa Fe, for petitioner-appellee.
Colin Alcott, Taos, Guardian
Ad Litem.
OPINION
DONNELLY, Chief Judge.
Respondent (mother) appeals from an order of the district court terminating
her parental rights to her minor daughter. We discuss: (1) whether the
trial court possessed personal and subject matter jurisdiction; (2) whether
the trial court erred in denying the mother's motion for a continuance;
(3) whether the trial court erred in admitting into evidence prior mental
health commitment records of the mother; and (4) whether the trial court's
findings are supported by proper standard of evidence. We affirm.
The child, Jean R., was
born in September, 1977. The natural father, Clifton R., was a member
of the Cheyenne-Arapahoe Tribe, and is now deceased. The child is an enrolled
member of her father's tribe; the mother, however, is a non-Indian. Since
the child was six months old, she has been moved between various foster
homes and the homes of relatives. Although the child is now approximately
eleven years old, she has resided with her mother for only approximately
three years.
In July of 1983, the
mother, while living in Montana, contacted her sister in New Mexico and
requested that she assist her in caring for the child. With the mother's
permission, the sister removed the child from Montana and brought her
to Taos. After the child had resided briefly with her aunt, the Human
Services Department (department), acting in part on information supplied
by the aunt, instituted proceedings against the mother alleging that the
child was neglected.
Following a hearing, the child was found to be neglected and legal custody
was transferred to the department. This determination was previously affirmed
on appeal by this court. See
In re Jane Doe,
Ct.App.No. 8895 (Memorandum Opinion Filed January 9, 1986).
On June 13, 1985, the
department filed a petition for termination of the mother's parental rights.
During the pendency of this action, the department sought to amend its
original petition by filing three separate amended petitions. On March
30, 1987, the mother filed a motion to dismiss, a motion for continuance
and a response to the petition. Thereafter, the department filed a motion
to consolidate the several amended petitions or, alternatively, for leave
to file a third amended petition. The court granted the department's motion
to file a third amended petition and denied the mother's motions to dismiss
and for a continuance. During the proceedings below the child was represented
by a guardian ad litem appointed by the court. Following a trial on the
merits, the court adopted findings of fact and conclusions of law and
entered a judgment terminating the mother's parental rights.
I. JURISDICTION
The mother claims that
the trial court lacked both personal and subject matter jurisdiction to
terminate her parental rights.
A. Personal
Jurisdiction
The constitutional requirement
relating to personal jurisdiction was articulated
*531
**1297
in International
Shoe Co. v. State of Washington Office of Unemployment Compensation &
Placement,
326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), wherein the
Supreme Court stated that, for due process standards to be met, the defendant
need have only "certain minimum contacts" with the forum state
"such that the maintenance of the suit does not offend 'traditional
notions of fair play and substantial justice.' " (Quoting Milliken
v. Meyer, 311
U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940).) Jurisdiction over
the person embraces due process notions of contact with the state and
sufficiency of notice of the action. In
re Doe, 99
N.M. 517, 660 P.2d 607 (Ct.App.1983). Service of process by personal delivery
of the papers within the state generally serves to indicate that defendant
has an appropriate relationship to the state and has been given notice
of the proceedings against him. Clark
v. LeBlanc,
92 N.M. 672, 593 P.2d 1075 (1979).
The mother asserts that
even though she was personally served in the state in the termination
proceedings, requisite minimum contacts were absent in order to subject
her to this state's jurisdiction. She argues that the only contacts she
had with New Mexico were involuntary and necessitated by her efforts to
regain custody of her child. Determination of whether minimum jurisdictional
contacts exist turns on the degree to which the person over whom jurisdiction
is sought has purposefully availed himself of the benefits, protections,
and privileges of the laws of the forum state. See
Fox v. Fox,
103 N.M. 155, 703 P.2d 932 (Ct.App.1985).
If the defendant is properly
served with process while physically present in the state, ordinarily
the court has in personam jurisdiction. See
M.E. Occhialino, Walden's
Civil Procedure in New Mexico
1-23 & -24 (2d ed. 1988). Respondent in effect contends that an exception
should be recognized on these facts, because she was in New Mexico solely
for the purpose of regaining custody of her child. We assume but need
not decide that a due process inquiry is relevant. But
cf. Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) ("Personal
service of written notice within the jurisdiction is the classic form
of notice always adequate in any type of proceeding").
The mother initially
agreed that the child come to New Mexico to reside with her sister. The
mother came to New Mexico twice to regain custody of the child. The record
indicates that she was not able to care for the child, that her sister
refused to relinquish physical custody each time, and that her sister
ultimately asked the Department for assistance. After the Department took
custody of the child, respondent consented to an order giving the Department
custody, but later contested custody and the validity of her consent.
After the child was adjudicated neglected, the mother remained in New
Mexico and participated in a local treatment plan ordered by the court.
On these facts, New Mexico had sufficient contacts with the mother to
justify the assertion of personal jurisdiction for purposes of terminating
parental rights. Respondent has not demonstrated that the assertion of
jurisdiction is unreasonable, and we are not persuaded that it is unfair.
We conclude that if a due process inquiry is appropriate, due process
was provided.
The mother has lived
in this jurisdiction since 1984, has attended college here, and has been
employed in New Mexico. Moreover, she was personally served with process
in this state in the present proceeding. The record amply supports the
trial court's finding that the court obtained personal jurisdiction over
both the child and her mother. See
United Nuclear Corp. v. General Atomic Co.,
91 N.M. 41, 570 P.2d 305 (1977).
B. Subject
Matter Jurisdiction
The mother also challenges
the trial court's subject matter jurisdiction. She argues *532
**1298
that the department failed to file a verified petition seeking termination
of parental rights within the time limits proscribed by statute, thereby
depriving the trial court of jurisdiction. The mother also claims that
the district court erroneously denied her oral request that termination
proceedings be transferred to a tribal court.
An action for termination
of parental rights is initiated by filing an application for termination,
signed and verified by the applicant. NMSA 1978, § 32-1-55(B) (Repl.1986).
In this case, a series of petitions and amended
petitions were filed by the department.
[FN1]
FN1.
The initial petition required amendment to include the facts and circumstances
supporting the grounds for termination. A second amended petition was
filed November 20, 1985, to include allegations concerning the tribal
affiliations of the child and her father, the specific actions taken by
the department to notify the tribe of the termination proceedings, and
the tribe's response concerning the issuance of a waiver of participation
in these proceedings. Still another petition was filed March 10, 1987,
to include the issues of disintegration of the parent-child relationship
and foster family-child bonding. The last amended petition was filed April
6, 1987, to encompass the information contained in the prior petitions
and to verify the petition.
The mother argues that because the department's initial petitions were
unverified, the action must be dismissed because this omission deprived
the court of subject matter jurisdiction. See
Dinwiddie v. Board of County Comm'rs,
103 N.M. 442, 708 P.2d 1043 (1985), cert.
denied, 476
U.S. 1117, 106 S.Ct. 1974, 90 L.Ed.2d 658 (1986) (involving an unverified
petition in an action challenging the validity of a bond election). The
rule articulated in Dinwiddie,
however, is not controlling here because in the present action there
is no statutory mandatory time limit prescribed for the department to
file its petition for termination of parental rights.
[FN2]
FN2.
Where a child has been in substitute care for eighteen months or longer
and it is determined that the child cannot be returned to his parents,
the department is required to initiate proceedings seeking termination
of parental rights. See
NMSA 1978, §§ 32-1-38.1(F)(5) & - 38.2(B) (Supp.1987). The
time factors contained in the statute, although directory in nature, do
not mandate that a petition for termination of parental rights must be
filed within eighteen months after the adjudication of neglect or the
action will be barred.
The Children's Code,
NMSA 1978, Sections 32-1-1 to -55 (Repl.1986 & Supp.1987) and the
Children's Court Rules, SCRA 1986, 10-101 to -311, do not expressly delineate
whether the Children's Court Rules apply to proceedings for the termination
of parental rights, or whether procedural amendments in such actions are
controlled by the Rules of Civil Procedure for the District Courts, SCRA
1986, 1-001 to -102. The Children's Court Rules state that "[t]hese
rules govern the procedure in the children's courts of New Mexico in all
matters involving children alleged to be delinquent, in need of supervision,
abused or neglected. * * *" Rule 10-101(A). The committee commentary
following this provision states that these rules are specifically limited
to such proceedings and that they are not intended to establish procedures
for other proceedings under the Children's Code. Additionally, the statute
governing termination proceedings refers expressly to the Rules of Civil
Procedure. See
§ 32-1-55(C) & (D). Thus, we conclude that the Rules of Civil
Procedure for the District Courts apply to proceedings for the termination
of parental rights.
Under SCRA 1986, 1-015(A),
a party may amend his pleadings once as a matter of course at any time
before a responsive pleading is served; otherwise, a party may amend his
pleading only by leave of the court. Amendments to pleadings are favored
and should be freely allowed in the interests of justice. See
First Nat'l Bank of Santa Fe v. Southwest Yacht & Marine Supply Corp.,
101 N.M. 431, 684 P.2d 517 (1984); Hambaugh
v. Peoples,
75 N.M. 144, 401 P.2d 777 (1965). The decision to grant **1299
*533
or deny a proposed amendment rests within the sound discretion of the
trial court. State
for Use & Benefit of Pennsylvania Transformer Div., McGraw-Edison
Co. v. Electric City Supply Co.,
74 N.M. 295, 393 P.2d 325 (1964); Beyale
v. Arizona Pub. Serv. Co.,
105 N.M. 112, 729 P.2d 1366 (Ct.App.1986). This court will not reverse
a trial court's allowance of amendment to the pleadings, except where
an abuse of discretion has been shown. Hambaugh
v. Peoples; Camp v. Bernalillo County Medical Center,
96 N.M. 611, 633 P.2d 719 (Ct.App.1981).
The key factor in the exercise of discretion is whether prejudice resulted
to the opposing party. Beyale
v. Arizona Pub. Serv. Co.
The
trial court heard the arguments of counsel concerning the department's
motion to amend and determined that the mother was aware of the nature
of the proceedings, the proposed amendments, and that she would not be
prejudiced by the amendment. See
Camp v. Bernalillo County Medical Center.
Although the department failed to obtain the trial court's permission
prior to filing its amended petitions, the court granted permission to
file the final amended petition and verification prior to the commencement
of trial. Allowance of the amendment rectified any insufficiency in the
pleadings.
See Bombach v. Battershell,
105 N.M. 625, 735 P.2d 1131 (1987). On the record before us, the mother
has not established any prejudice; thus, we find no error in the trial
court's order.
The mother also argues that the trial court lacked subject matter jurisdiction
to terminate her parental rights because this case is governed by the
Indian Child Welfare Act of 1978 (ICWA). See
25 U.S.C.A. §§ 1901 to - 63 (1983). The mother contends the
proceeding should have been transferred at her request by the Taos district
court to the Cheyenne-Arapahoe tribal court. The federal statute governing
transfer of jurisdiction over termination proceedings involving Indian
children provides, in applicable part:
In
any State court proceeding for * * * termination of parental rights to,
an Indian
child not domiciled or residing within the reservation of the Indian child's
tribe, the court,
in the absence of good cause to the contrary, shall transfer such proceeding
to the jurisdiction of the tribe
* * * upon the
petition of either parent
* * * [p]rovided, [t]hat such transfer shall be subject to declination
by the tribal court of such tribe.
25 U.S.C.A. § 1911(b) (emphasis added).
The mother orally requested
at trial that the proceeding be transferred. The trial court found that
neither the tribe nor the mother filed a written petition to transfer
this case to the tribal court. Section 1911(b) does not specify whether
the petition must be oral or written. Guidelines drafted by the Bureau
of Indian Affairs for implementation of the Act state that a parent may
request, orally or in writing, that the proceeding be transferred to the
tribal court. See
Guidelines for State Courts; Indian Child Custody Proceedings (Guidelines),
44 Fed.Reg. 67584 (1979). The Guidelines
further provide that upon receipt of the petition, the court should transfer
jurisdiction unless either parent objects, the tribal court declines jurisdiction,
or the court determines that good cause exists for denying the transfer.
Id.
After hearing arguments of counsel, the trial court determined that good
cause existed to proceed and to deny a transfer. We find no error in this
determination. The record indicates that the tribe executed a written
waiver of participation in the proceeding. See
In re J.M.,
718 P.2d
150 (Alaska 1986).
The Guidelines
further provide that good cause may exist to deny a transfer if the proceedings
are at an advanced stage when the petition to transfer is received. See
44 Fed.Reg. 67584. In this case, the petition was received after trial
had commenced. Under these circumstances, good cause existed to deny the
requested transfer, and the trial court's denial of the motion to transfer
was not an abuse of discretion and did not constitute error.
**1300
*534
II. CONTINUANCE
The mother asserts that the trial court erroneously denied her motion
for a continuance after allowing the department to amend its petition,
and that this denial resulted in a violation of her right to due process.
Specifically, she claims that because the March 10, 1987 petition was
invalid, the first legal notice she received of the department's intent
to raise the issue as to bonding between the child and her foster parents
was after the trial began. We disagree.
Procedural due process
requires notice to each of the parties of the issues to be determined
and opportunity to prepare and present a case on the material issues.
See In re Guardianship
of Arnall,
94 N.M. 306, 610 P.2d 193 (1980). The granting or denial of a continuance
is within the sound discretion of the trial court and will be reviewed
only for plain abuse. Albuquerque
Nat'l Bank v. Albuquerque Ranch Estates, Inc.,
99 N.M. 95, 654 P.2d
548 (1982); see
El Paso Elec. v. Real Estate Mart, Inc.,
98 N.M. 490, 650 P.2d 12 (Ct.App.1982). Here, the mother was placed on
notice as early as August, 1986, that the department intended to raise
the bonding issue.
[FN3] Based on a review of the record and the pleadings herein, the mother
was given advance notice of the issues to be tried and had a reasonable
opportunity to prepare her case. We find no error in the trial court's
denial of the motion for continuance. See
New Mexico Feeding Co. v. Keck,
95 N.M. 615, 624 P.2d 1012 (1981).
FN3.
In James M. Brandenburg's motion to withdraw as counsel for mother, he
stated that "[o]n or about August 5, 1986, Harold Breen, Attorney
for the * * * Department advised me that he was going to amend the Petition
for Termination filed herein, to bring into the action Juan and Mary Frances
Aragon, the foster parents of Jean * * * a minor."
III. EVIDENCE OF PRIOR
COMMITMENTS
The mother argues that
the trial court erred in admitting into evidence Exhibit No. 1, consisting
of a letter of transmittal and a case narrative of a Stearns County, Minnesota
social worker's contracts with the mother in 1980. The exhibit also contains
a written chronological summary of social service contacts with the mother
while she was hospitalized in St. Paul, Minnesota for mental
problems in 1980. The mother's docketing statement, however, raises the
issue of records regarding prior commitments in 1974 and 1975 at a Montana
state hospital, which are said to have been admitted during the testimony
of a psychiatrist. The docketing statement does not raise the issue of
whether the trial court erred in admitting into evidence of prior commitments
in 1980. Issues not raised in the docketing statement may not be raised
for the first time in the brief in chief and will not be considered by
the court when they do not fall within any exceptions to this rule. Romero
v. Romero,
101 N.M. 345, 682 P.2d 201 (Ct.App.1984).
IV. SUFFICIENCY OF EVIDENCE
The mother's final point
on appeal challenges the propriety of the trial court's decision terminating
her parental rights and asserts that the court's findings as to this issue
were not supported by evidence beyond a reasonable doubt. At trial, the
guardian ad litem argued that the best interests of the child necessitated
termination of the mother's parental rights.
In any proceeding involving
a child subject to the ICWA, a trial court's decision to terminate parental
rights will be upheld if its findings are in accord with applicable law
and are supported by evidence establishing a basis for termination of
parental rights beyond a reasonable doubt. See
In re Doe,
98 N.M. 198, 647 P.2d 400 (1982). Reasonable doubt is such doubt as would
cause a reasonable and prudent man to pause and hesitate to act in the
graver
and more important affairs of life. State
v. Ellison,
19 N.M. 428, 144 P. 10 (1914). Reasonable doubt does not mean absolute
certainty. See
State v. Cranford,
83 N.M. **1301
*535
294, 491 P.2d 511 (1971), cert.
denied, 409
U.S. 854, 93 S.Ct. 190, 34 L.Ed.2d 98 (1972).
Section 32-1-55(H) specifies
the standard of proof required in order to terminate parental rights.
The statute provides, in applicable part:
The
grounds for termination * * * [of parental rights] shall be proved by
clear and convincing evidence; provided, however, the grounds for any
attempted termination must be proved beyond a reasonable doubt and meet
the requirements of 25 U.S.C. Section 1912(f) in any proceeding involving
a child subject to the Indian Child Welfare Act, 25 U.S.C. Sections 1901
et seq.
Section 1912(f) of the
ICWA provides that "[n]o termination of parental rights may be ordered
in such proceeding in the absence of a determination, supported by evidence
beyond a reasonable doubt * * * that the continued custody of the child
by the parent * * * is likely to result in serious emotional or physical
damage to the child." In proceedings seeking termination of parental
rights wherein the matter is not controlled by the ICWA, the grounds for
any attempted termination need only be proved by clear and convincing
evidence. § 32-1-55(H); Santosky
v. Kramer,
455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599, on
remand, In re John AA,
89 A.D.2d 738,
453 N.Y.S.2d 942 (1982). We apply the higher standard of proof because
the ICWA imposes this standard on state courts properly exercising jurisdiction
over custody cases involving Indian children. See
In re Jason Y.,
106 N.M. 406, 744 P.2d 181 (Ct.App.1987); Wamser, Child
Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus,
10 N.M.L.Rev. 413 (1980).
In determining whether
the evidence supports the findings and decision of the trial court, we
view the evidence in the light most favorable to the prevailing party,
and resolve all conflicts and indulge in all permissible inferences therefrom
in favor of the decision of the trial court. See
State v. Lankford,
92 N.M. 1, 582 P.2d 378 (1978). An appellate court will not substitute
its judgment for that of the trial court. Id.;
In re Adoption of John Doe,
98 N.M. 340, 648 P.2d 798 (Ct.App.1982). It is for the trier of fact to
weigh the evidence, determine credibility of witnesses, reconcile inconsistent
or contradictory statements of witnesses and determine where the truth
lies. Lewis
v. Bloom, 96
N.M. 63, 628 P.2d 308 (1981).
Parental rights may be
terminated under the statutes that exist in New Mexico if any of the following
grounds are established: (1) abandonment of the child; (2) the child has
been left with others and its parents are unknown and cannot be ascertained;
(3) the child is neglected or abused; or (4) the child has remained for
an extended period of time in the care of third persons, the parent-child
relationship has disintegrated, and a psychological parent-child relationship
has developed between the child and a substitute family who desires to
adopt the child. In this case, the trial court determined that the department
had met its burden of proof in establishing the criteria for termination
of parental rights under both the third and fourth grounds. See
§ 32-1-54(B).
The mother argues that
the department failed to prove the basis for terminating parental rights
pursuant to the fourth ground because it did not show that the parent-child
relationship had disintegrated. We disagree.
Dr. Elizabeth Dinsmore,
a clinical psychologist, testified that there had never been a strong
parent-child bond existing between the mother and child. Another clinical
psychologist, Dr. Geoffrey Sutton, also agreed that the mother-child relationship
was weak. At trial, the child was interviewed by the court and expressed
a desire to live with her foster parents. Moreover, the trial court's
findings detail the series of custodial settings in which the child has
been placed since an early age.
Based on the record before
us, we conclude that there is substantial evidence beyond a reasonable
doubt to support the **1302
*536
trial court's termination of the mother's parental rights under Section
32-1-54(B)(4). Because each ground is an independent basis for termination
of parental rights, we do not address whether the department failed to
prove the basis for termination pursuant to the third ground of the statute.
See In re Doe,
98 N.M.
442, 649 P.2d 510 (Ct.App.1982).
V. APPLICABILITY OF OTHER
ACTS
The mother's motion to
amend her docketing statement was granted by this court. The amendment
alleged that the New Mexico Child Custody Jurisdiction Act, Sections 40-10-1
to -24 (Repl.1986), and the Parental Kidnapping Prevention Act, 28 U.S.C.A.
§ 1738A (Cum.P.P.1988), require the New Mexico courts to defer to
the jurisdiction of the Oklahoma or Montana courts concerning this cause.
At oral argument the mother withdrew her contention as to the applicability
of the Parental Kidnapping Prevention Act. The mother concedes that a
copy of the alleged Oklahoma child custody decree was not tendered to
the trial court nor did she request to have the decree judicially noticed.
Under these facts the mother has failed to establish error or lack of
jurisdiction on the part of the district court herein. Moreover, under
the facts as shown by the record before us, we conclude that the New Mexico
Child Custody Jurisdiction Act did not supersede or invalidate the termination
proceeding brought under Section 32-1-54.
The mother also relies
upon State ex
rel. Department of Human Services v. Avinger,
104 N.M. 355, 721 P.2d 781 (Ct.App.1985), as supporting her contention
that the district court herein lacked jurisdiction to terminate her parental
rights, and arguing that New Mexico must defer to the courts of either
Oklahoma or Montana. Avinger
is not dispositive of the present case, however, because
the mother has failed to indicate a factual basis for her claims that
New Mexico lacked personal or subject matter jurisdiction over the parties.
Neither has she shown that the child was subject to the provisions of
a foreign decree, requiring that this state defer to jurisdiction of another
forum.
CONCLUSION
We have considered each
of the other issues raised by the mother on appeal and find them without
merit. The mother's court-appointed counsel seeks an award of attorney
fees and costs incident to this appeal. After entry of the mandate herein,
the trial court is directed to determine an award of attorney fees for
these services and for the Guardian Ad Litem on appeal. See
Termination of Parental Rights of Reuben & Elizabeth O. v. Department
of Human Servs.,
104 N.M. 644, 725 P.2d 844 (Ct.App.1986).
The order terminating
parental rights is affirmed. The department's motion to supplement the
record proper is denied.
IT IS SO ORDERED.
MINZNER and APODACA,
JJ., concur.
107 N.M. 529, 760 P.2d
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