Opinion
A-1-CA-40394
06-28-2023
IN THE MATTER OF THE ADOPTION PETITION OF NICHOLAS WAYNE M., v. ARTURO DEREK D., Respondent-Appellant. NICHOLAS WAYNE M., Petitioner-Appellee,
Lane Martin Carlsbad, NM for Appellee Cravens Law LLC Richard H. Cravens, IV Albuquerque, NM for Appellant
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY Jane Shuler Gray, District Court Judge
Lane Martin Carlsbad, NM for Appellee
Cravens Law LLC Richard H. Cravens, IV Albuquerque, NM for Appellant
MEMORANDUM OPINION
MEGAN P. DUFFY, JUDGE.
{¶1} Respondent appeals from an order of the district court terminating his parental rights to Child. We issued a notice of proposed summary disposition proposing to affirm, and Respondent has responded with a timely memorandum in opposition, which we have duly considered. We remain unpersuaded that our initial proposed disposition was incorrect, and we therefore affirm.
{¶2} Respondent continues to assert that the evidence was insufficient to support the district court's finding that he abandoned Child. [MIO 4-5] Specifically, Respondent argues that he rebutted the presumption of abandonment with his testimony at the hearing on the petition for adoption. [MIO 3, RP 10-11] Respondent acknowledges that he had not seen Child in five years; however, he points to his testimony that he was prevented from seeing Child by Mother and Petitioner. [MIO 3; RP 10-11] See In re Adoption of J.J.B., 1995-NMSC-026, ¶ 47, 119 N.M. 638, 894 P.2d 994 (recognizing that the presumption of abandonment may be "rebutted by showing that a parent lacks responsibility for the destruction of the parent-child relationship").
{¶3} However, the district court was not required to credit Respondent's testimony, and on appeal we do not substitute our judgment for that of the district court on matters of credibility. See State ex rel. Child., Youth & Fams. Dep't v. Vanessa C., 2000-NMCA-025, ¶ 24, 128 N.M. 701, 997 P.2d 833 (stating that we do not reweigh the evidence or substitute our judgment for that of the district court on factual matters or on matters of credibility); see also State ex rel. Child., Youth & Fams. Dep't v. Cosme V., 2009-NMCA-094, ¶ 19, 146 N.M. 809, 215 P.3d 747 ("The district court is in a better position to assess the testimony and credibility of witnesses, and our scope of review is a narrow one." (internal quotation marks and citation omitted)).
{¶4} Rather, our task is to view the evidence in the light most favorable to the district court's judgment in determining whether the State has met the clear and convincing standard. See Vanessa C., 2000-NMCA-025, ¶ 24 ("The standard of proof in cases involving the termination of parental rights is clear and convincing evidence."); State ex rel. Child., Youth & Fams. Dep't v. Patricia H., 2002-NMCA-061, ¶ 22, 132 N.M. 299, 47 P.3d 859 (stating that on review of an order terminating parental rights, "[w]e must determine whether substantial evidence supports the trial court's decision"). In this case, there was evidence contradicting Respondent's assertions, including the guardian ad litem (GAL) report and testimony from the GAL and Petitioner. [RP 39-50; 3/28/2022 Tape Log 4-8] See Patricia H., 2002-NMCA-061, ¶ 22 ("Our role is to determine whether the fact[-]finder could properly conclude that the proof requirement below was met.").
{¶5}To the extent Respondent continues to argue that the district court improperly relied on the fact of his incarceration to find that he abandoned Child, we disagree. [MIO 6-7] We recognize that a parent's incarceration alone is insufficient to support a finding of abandonment. See State ex rel. Child., Youth & Fams. Dep't v. Melvin C., 2015-NMCA-067, ¶¶ 11-15, 350 P.3d 1251 (recognizing that abandonment cannot be supported "by simply a finding that a parent was incarcerated during the period of alleged abandonment" (internal quotation marks and citation omitted)). However, in this case, there was also evidence before the district court that Respondent had only sporadic contact with Child throughout her life, owed Mother approximately $30,000 in back child support, and had not had contact with Child in the past five years. [DS 2] Additionally, there was evidence that Child had continuously resided with Petitioner and Mother since 2009, Petitioner and Child formed a parent-child relationship, and Petitioner and Child both desired that the adoption take place. [RP 70-71] See State ex rel. Child., Youth & Fams. Dep't v. Christopher B., 2014-NMCA-016, ¶ 12, 316 P.3d 918 (stating that multiple factors may indicate abandonment, including an absence of financial support and purposely declining opportunities to remain in contact with the child); In re Adoption of Doe, 1982-NMCA-183, ¶ 26, 99 N.M. 278, 657 P.2d 134 ("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 NMSA 1978, § 32A-5-15(B)(3) (2022) (listing factors that give rise to a rebuttable presumption of abandonment).
{¶6} For these reasons and those set out in our notice of proposed summary disposition, we reject Respondent's assertions of error, and we affirm the district court.
{¶7} IT IS SO ORDERED.
WE CONCUR: KRISTINA BOGARDUS, KATHERINE A. WRAY, Judge