       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _______________

Filing Date: July 24, 2013

Docket No. 31,182

MARIA MAGDALENA AEDA, a/k/a
MAGDALENA GIRON,

       Petitioner-Appellee,

v.

OSAMAH AEDA,

       Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Michael Murphy, District Judge

Magdalena Giron
Las Cruces, NM

Pro Se Appellee

Keithly & English, P.C.
Shane A. English
Anthony, NM

for Appellant

                                        OPINION

BUSTAMANTE, Judge.

{1}     As a matter of first impression we are asked to decide whether termination of
parental rights ends a parent’s obligation to make child support payments imposed in a
divorce decree. We conclude that a termination of parental rights severs the parent-child
relationship completely—including the support obligation. As a result we reverse the district




                                             1
court’s order.1

I.     BACKGROUND

{2}    Maria Magdalena Aeda (Mother) and Osamah Aeda (Father) were married in 1984
and divorced in 1990. They had two children during the marriage. The divorce decree
ordered Father to pay $600 per month in child support until the children reached majority,
were emancipated, or until further order of the court.

{3}     In March 1993, Mother filed for termination of Father’s parental rights, alleging
failure to pay child support and physical and mental abuse of her and the children. Father
did not respond to Mother’s motion on its merits. Rather, he filed a special appearance
challenging jurisdiction. Father did nothing in the case after filing his special appearance,
failing even to appear at the hearing he requested on the issue.

{4}      The district court held a hearing on the motion accepting oral testimony and exhibits.
In its order terminating Father’s parental rights, the district court found that “the children .
. . have been abandoned as [Father had] paid no child support since entry of the [divorce
decree]” and that “[t]he children . . . have witnessed horrific violence and mayhem to those
they love; specifically, their mother and maternal grandmother, which violence was a result
of [F]ather’s conduct.” The district court also found that Father had kidnapped the children
for ten months in 1990, taking them to Texas and not permitting them any contact with
Mother during that time. Specifically with regard to the children, the district court
determined:

              5.      There will be no damage to the children if they never have
       contact with [F]ather again. In fact, the children will be relieved.

                  ....

              12.      [T]here has been extensive emotional and physical abuse of
       the minor children and it is in the best interest of these children that the
       parental rights of [F]ather be terminated forever.

The termination order of November 1, 1993, made no mention of alteration of the child
support order. Notably, neither Mother’s motion nor the district court’s order cited any
statutory authority.



       1
         Given that the events giving rise to this case occurred twenty years ago, however,
we limit the force of our ruling to the statutory provisions in effect in March 1993—the date
the petition to terminate Father’s parental rights was filed.


                                               2
{5}     In 1991, Mother applied for assistance from the New Mexico Human Services
Department, Child Support Enforcement Division (HSD), which prompted collection efforts
by HSD against Father. Using a variety of mechanisms, HSD seized approximately $7620
from Father between 1991 and 2005. In 2004, Father contested the seizure of funds from
his bank account in an administrative hearing, arguing that New Mexico did not have
jurisdiction over his divorce proceedings. The hearing officer in that proceeding determined
that New Mexico had jurisdiction, HSD had acted properly in seizing the funds, and Father
owed over $42,000 in child support at that time. There is no indication in the record that
Father ever raised termination of his rights as a defense to HSD’s collection efforts.

{6}      In October 2008, HSD moved to intervene in the proceedings between Mother and
Father (the divorce and termination proceedings were assigned the same case number) and
filed a motion to establish a payment plan for child support arrearages. Now represented by
counsel, Father moved to dismiss HSD’s motion arguing that “[b]y terminating his parental
rights, the [termination o]rder terminated [Father’s] parental relationship with the children
such that [Father] thereafter owed no legal duty or obligation to the children, including any
duty to support the children.” Father also asserted laches as an affirmative defense. In June
2009, after Father responded, Mother, through private counsel, filed her own motion to show
cause through which she sought payment of child support arrearages under the divorce
decree.

{7}     The district court held a hearing on Father’s and Mother’s motions in August 2009.
At the conclusion of the hearing the district court ruled against Father because in its view
parental rights and the duty to support are “separate and distinguishable.” The record does
not include an order reflecting this ruling until entry in February 2011 of the final order that
is the subject of this appeal.

{8}    After the district court’s oral denial of Father’s motion to dismiss, HSD withdrew as
intervenor and “permanently” waived its assignment of rights and financial interests.

{9}     In June 2010 the district court determined after a hearing that the defense of laches
did not apply to this case. And, after a final hearing, the district court ordered Father to pay
past due child support, plus interest, in the stipulated amount of $117,502.41, covering the
fourteen-year period from October 1994 through September 30, 2010. Father appealed.

II.    DISCUSSION

{10} Father first argues that the district court misconstrued the applicable statutes in ruling
that termination of his parental rights did not terminate his child support obligations. He also
argues that the district court erred in finding that the defense of laches was inapplicable.
Given our conclusion that termination of parental rights does terminate child support
obligations, there is no need to address laches.

1.     Standard of Review

                                               3
{11} Interpretation of a statute is a question of law, which an appellate court reviews de
novo. See Morgan Keegan Mortg. Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405,
951 P.2d 1066. The overriding purpose of statutory construction is to “give effect to the
Legislature’s intent.” Key v. Chrysler Motors Corp., 121 N.M. 764, 768, 918 P.2d 350, 354
(1996). “In interpreting statutes, we seek to give effect to the Legislature’s intent, and in
determining intent we look to the language used and consider the statute’s history and
background.” Id. at 768-69, 918 P.2d at 354-55. If we determine that the language of a
statute is clear and unambiguous, there is no need for additional analysis of the statute. Sims
v. Sims, 1996-NMSC-078, ¶ 17, 122 N.M. 618, 930 P.2d 153. Rather, “it is . . . the
responsibility of the judiciary to apply the statute as written.” Martinez v. Cornejo, 2009-
NMCA-011, ¶ 11, 146 N.M. 223, 208 P.3d 443 (internal quotation marks and citation
omitted); see State ex rel. Barela v. N.M. State Bd. of Educ., 80 N.M. 220, 222, 453 P.2d
583, 585 (1969) (“We are not permitted to read into a statute language which is not there,
particularly if it makes sense as written.”). When the statute’s language is not clear and
unambiguous, we rely on the history of the statute, Key, 121 N.M. 768-69, 918 P.2d at 354-
55, construction of “other statutes concerning the same subject matter,” Quantum Corp. v.
State Taxation & Revenue Department, 1998-NMCA-050, ¶ 8, 125 N.M. 49, 956 P.2d 848,
and the principles embodied in the Uniform Statute and Rule Construction Act, NMSA 1978,
Sections 12-2A-1 to -20 (1997). Unless a statute violates the Constitution, “[w]e will not
question the wisdom, policy, or justness of legislation enacted by our Legislature.” Madrid
v. St. Joseph Hosp., 1996-NMSC-064, ¶ 10, 122 N.M. 524, 928 P.2d 250. Finally, we note
that “[l]egislative silence is at best a tenuous guide to determining legislative intent[.]”
Swink v. Fingado, 115 N.M. 275, 283, 850 P.2d 978, 986 (1993).

2.     Which Statute Requires Construction

{12} Our first task is to determine which statute requires construction. Mother filed the
petition for termination of Father’s rights in March 1993 and the district court granted the
petition in November 1993. Between those two dates, the Legislature passed amendments
to the Children’s Code, which became effective on July 1, 1993. 1993 N.M. Laws, ch. 77,
§§ 234, 236. Thus, our review is focused on the construction of the Children’s Code as it
existed before those amendments were effective, not on the language of the Children’s Code
after the amendments. See § 12-2A-16(A), (B) (“A pending civil action or proceeding may
be completed and a right accrued may be enforced as if the statute or rule had not been
amended or repealed.”).

{13} Having determined the temporal focus of our inquiry, we must next determine which
statute was operative in this case. Neither Mother’s petition for termination of Father’s
rights nor the district court’s order cited a statutory basis for the termination. We conclude
that the petition and order were based on the authority granted in NMSA 1978, Sections 32-
1-54 and -55 (1985) primarily because there were no other provisions for termination of
parental rights extant at the time. In addition, Section 32-1-55 and other sections of the
Children’s Code were cited by Mother in subsequent pleadings, and the district court found
“[t]hat there ha[d] been extensive emotional and physical abuse of the . . . children and it is

                                              4
in the best interest of these children that the parental rights of [Father] be terminated
forever[,]” which are some of the required elements of termination under Sections 32-1-54
and -55. See § 32-1-54 (A), (B)(3). Our focus here, then, is on construction of Sections 32-
1-54 and -55.

3.      Sections 32-1-54 and -55 Are Not Clear and Unambiguous

{14} We next examine Sections 32-1-54 and -55 to determine if they are clear and
unambiguous. The provision describing the effect of an order of termination reads:

                 A judgment of the court terminating parental rights divests the parent
        of all legal rights and privileges, and dispenses with both the necessity for the
        consent to or receipt of notice of any subsequent adoption proceeding
        concerning the child. A child’s inheritance rights from and through its
        biological parents are terminated only by a subsequent adoption.

Section 32-1-55(J). Section 32-1-55 generally describes the process to be followed by the
district court when considering a petition to terminate parental rights. The companion
provision—Section 32-1-54—generally provides the substantive grounds upon which
parental rights may be terminated. Section 32-1-54(E) adopts by reference the definition of
“parental rights” found in the Adoption Act. See NMSA 1978, § 40-7-30(K) (1985, as
amended through 1989). That definition states: “‘parental rights’ means all rights of a
parent with reference to a minor, including parental right to control, to withhold consent to
an adoption[,] or to receive notice of a hearing on a petition for adoption[.]”). Id.

{15} Mother notes that this language “only speaks in terms of the rights of the parent.”
Mother contends that because the statutes’ terms address only a parent’s rights to his or her
child, rather than a parent’s duties toward the child, a child’s inherent right to support from
the parent persists after termination of the parent’s rights. Mother’s argument relies on the
premise, well established in New Mexico law, that a child is entitled to support from his or
her parents. See Mintz v. Zoernig, 2008-NMCA-162, ¶ 15, 145 N.M. 362, 198 P.3d 861 (“It
is well established that a natural father is required to support his children.”); In re Estate of
DeLara, 2002-NMCA-004, ¶ 10, 131 N.M. 430, 38 P.3d 198 (“Our Supreme Court has
characterized child support as a parent’s most important single obligation.” (internal
quotation marks and citation omitted)); Tedford v. Gregory, 1998-NMCA-067, ¶ 24, 125
N.M. 206, 959 P.2d 540 (“In New Mexico, . . . children are entitled to support from their
parents.”).

{16} If this were the only sentence at issue, Mother’s argument would be persuasive. The
second sentence of Section 32-1-55(J), however, reserves to a child specific inheritance
rights. Father argues that the Legislature’s explicit preservation of a child’s right to inherit
indicates that other rights were not preserved after termination. He argues, “If the Legislature
had also intended to impose a duty of continuing child support on parents whose parental
rights were terminated . . . then logically it would have done so by . . . stat[ing] that children

                                                5
retained child support rights as well as rights of inheritance.” He appears to invoke “the old
rule of statutory construction inclusio unius est exclusio alterius; the inclusion of one thing
is the exclusion of another.” State ex rel. State Eng’r v. Lewis, 1996-NMCA-019, ¶ 11, 121
N.M. 323, 326, 910 P.2d 957, 960. Like Mother’s argument, Father’s argument for
interpretation of the second sentence of Section 32-1-55(J) would be more persuasive if the
sentence stood alone, but it does not. While we might infer from the explicit preservation
of inheritance rights that other rights are not preserved, by the same token we also might
infer from the absence of reference to a parent’s obligations that termination of parental
rights extinguishes only rights, not obligations. Given no clear basis for the choice, we
conclude that Section 32-1-55(J) does not by itself answer the question posed by this case.
Thus, we turn to other principles of construction.

4.      History of the Children’s Codes and Sections 32-1-54 and -55

{17} We turn first to the history of Sections 32-1-54 and -55. That history not surprisingly
reflects an evolution of attitudes toward the parent-child relationship and the problems posed
by abused, neglected, and delinquent children. Until relatively recently, provisions for the
removal of children from unfit parents were grouped with statutes governing adoption. See
State ex rel. Children, Youth & Families Dep’t v. B.J., 1997-NMCA-021, ¶ 7, 123 N.M. 99,
934 P.2d 293; see also Theodore E. Lauer, The New Mexico Children’s Code: Some
Remaining Problems, 10 N.M. L. Rev. 341, 342 nn.4 & 5 (1980) (discussing pre-1917
history of such codes). Pre-statehood laws addressing parental rights were included in a
chapter titled “Adopting and Legitimizing” and permitted courts “to remove children from
the custody of prostitutes or inhabitants of a house of ill fame and to grant custody to another
proper person, association, or corporation” and “to permit adoption of children who had been
abandoned and were not provided for by parents or relatives.” B.J., 1997-NMCA-021, ¶ 7;
see 1897 Compiled Laws of New Mexico §§ 1503 & 1504, C.L. 1897. That chapter also
provided that “[t]he parents and relatives of an adopted child are, from the time of its
adoption, relieved of all parental duties toward and all responsibility for the child so adopted,
and shall have no right to or control over it.” 1897 Compiled Laws of New Mexico § 1508,
C.L. 1897.

{18} In 1917, a “more extensive statutory structure” was enacted that became the root of
today’s Children’s Code. B.J., 1997-NMCA-021, ¶ 8; Lauer, supra, at 342. The 1917
statute focussed on “delinquent and neglected children” and “empowered the district courts
to adjudge as wards of the court and to place under the guardianship of individuals or
associations” neglected or abused children. Lauer, supra, at 342-343. Until 1972, although
separate statutes existed governing adoptions, the “dependent and neglected children”
statutes also included provisions for adoption of a neglected child and procedures for parents
to challenge adoptions. See, e.g., NMSA 1941, §§ 25-201 to -218 (1893, as amended
through 1933); NMSA 1941, §§ 25-219, -223, -228 (1951) (Vol. 2, 1951 Cum. Pocket
Supp.); -224 (1953) (Vol. 2, 1953 Pocket Supp.); NMSA 1953, §§ 22-2-20 to -35 (1971, as
amended through 1975) (Vol. 5, 1975 Pocket Supp.); NMSA 1953, §§ 13-9-6 (1951); -6.1
(1961) (Vol. 3, 1967 Pocket Supp.) (“Freeing children for adoption—Procedure—Parental

                                               6
rights protected”). Thus, there appears to have been some overlap between the two types of
statutes. These early provisions relating to abused or neglected children remained largely
unchanged from 1917 until 1972. Lauer, supra, at 343; B.J., 1997-NMCA-021, ¶ 5; see
NMSA 1941, §§ 44-202 (1917); -206 (1951) (Vol. 3, 1951 Cum. Pocket Supp.); NMSA
1953, §§ 13-9-2 (1917); -6 (1951).

{19} In 1972, the Children’s Code was enacted and the previous provisions were repealed.
1972 N.M. Laws, ch. 97, §§ 1 to 45. The Children’s Code was based in large part on the
“Legislative Guide for Drafting Family and Juvenile Court Acts” published by the
Children’s Bureau of the Social and Rehabilitation Service of the United States Department
of Health, Education, and Welfare. Lauer, supra, at 344. The Children’s Code was
motivated partially by the United States Supreme Court’s decision in In re Gault, 387 U.S.
1 (1967), in which the Court “extended to juveniles the right to notice of charges, to counsel,
to confrontation and to cross-examination of witnesses, and to the privilege against self-
incrimination.” State v. Rudy B., 2010-NMSC-045, ¶ 55, 149 N.M. 22, 243 P.3d 726; see
Lauer, supra, at 343-44. Consequently, its focus was primarily on “strengthen[ing] the rights
of children in the juvenile court [and] advanced thinking in terms of children’s rights and
procedural safeguards.” Lauer, supra, at 344. The 1972 version of the Children’s Code did
not contain a provision specifically addressing termination of parental rights. It did include
a definition of “parent” and provided for placement of children when their parents’ rights
had been terminated. See NMSA 1953, § 13-14-3(F) (1973) (stating that a “parent” is one
whose rights have not been terminated); NMSA 1953, § 13-14-25(H) (Vol. 3, 1975 Pocket
Supp.) (specifying who may be a guardian of a child when parental rights have been
terminated).

{20} Meanwhile, in 1971, a new Adoption Act was enacted. 1971 N.M. Laws, ch. 222.
The new statute included a provision for termination of parental rights when a child had been
abandoned or “the parent . . . has repeatedly or continually neglected . . . the natural and
legal obligations of care and support[.]” NMSA 1953, § 22-2-23(3) (1971) (Vol. 5, 1975
Pocket Supp.); 1983 N.M. Laws, ch. 239, § 2. The 1971 Adoption Act defined “parental
rights” as “all rights of a parent with reference to a minor, including parental right to control,
or to withhold consent to an adoption, or to receive notice of a hearing on a petition for
adoption[.]” Section 22-2-21(I) (1971) (Vol. 5, 1975 Pocket Supp.).

{21} And, for the first time in New Mexico’s statutes, the 1971 Adoption Act provided a
description of the effect of an order terminating parental rights. Section 3(E) of the
Adoption Act provided:

                E.      The court after hearing may grant or deny a judgment
        terminating parental rights. A judgment of the court terminating parental
        rights has the same effect as an adoption judgment has in terminating the
        parent-child relationship, including terminating parental rights, dispensing
        with the consent, and with any required notice of an adoption proceeding of
        a parent whose relationship is terminated by the judgment.

                                                7
1971 N.M. Laws, ch. 222, at 754. This language was codified at Section 22-2-23(E).

{22} In 1975 the Legislature amended Section 22-2-23. 1975 N.M. Laws, ch. 185.
Relevant to our inquiry, the legislature repealed Subsection (E) and replaced it with two new
provisions:

               F.      The court after hearing may grant or deny a judgment
       terminating parental rights. If the attempted termination is based on the
       unfitness of the parent, that unfitness must be proved by clear and convincing
       evidence. The court’s judgment shall recite the findings upon which it is
       based; if the court terminates parental rights, it shall also appoint a custodian
       for the minor and shall fix responsibility for the minor’s support.

               G.     A judgment of the court terminating parental rights divests the
       parent and the child of all legal rights, privileges, duties and obligations,
       including rights of inheritance, with respect to each other, and dispenses with
       both the consent of, and the requirement of notice to, that parent whose
       relationship is terminated by the judgment for a subsequent adoption
       proceeding.

Section 22-2-23(F), (G) (Vol. 5, 1975 Pocket Supp.) (emphasis added). This section was
recompiled into NMSA 1978 as Section 40-7-4. Parallel Tables. Although Section 40-7-4
was amended several times, the language on the effect of termination of parental rights
remained constant until 1985. 1983 N.M. Laws, ch. 239, § 2. It is clear that the 1971 and
1975 termination provisions contemplate complete extinguishment of the parent-child
relationship, including a parent’s support obligation.

{23} In 1985, as part of yet another significant revision to the Adoption Act, the provisions
for termination of parental rights were essentially moved from the Adoption Act to the
Children’s Code when Section 40-7-4 was repealed and Sections 32-1-54 and -55 were
adopted instead.2 1985 N.M. Laws, ch. 194, §§ 36, 37, 39. Sections 32-1-54 and -55
incorporated Section 40-7-4’s provisions permitting termination when a child has been
abandoned, abused, or neglected and most of the procedural requirements found in Section
40-7-4. See § 32-1-54 (B)(1), (3); § 32-1-55 (A), (B), (I), (J). Section 32-1-54(E) also
provided that “[t]he definitions contained in Section 2 of the Adoption Act [40-7-30 NMSA


       2
         NMSA 1953, Sections 13-14-1 to -45 (1972, as amended through 1973), the original
Children’s Code, were recompiled into NMSA 1978, Sections 32-1-1 to -48 (1972, as
amended through 1989). Parallel Tables. Additional sections were added to the Children’s
Code in 1979 and 1981 such that the Code encompassed Sections 32-1-1 to -53, and a 1993
recompilation resulted in the Children’s Code encompassing all of Section 32A, including
modified versions of Sections 32-1-54 and -55. We understand Sections 32-1-54 and -55 to
be part of the Children’s Code at the times relevant to this case.

                                              8
1978] shall apply to the termination of parental rights under this section and Section 32-1-
55.” (Alteration in original.) The only definition that is relevant to our inquiry is that of
“parental rights” found at Section 40-7-30(K), and it is the same definition found in the 1971
version of the Adoption Act (“ ‘[P]arental rights’ means all rights of a parent with reference
to a minor, including parental right to control, to withhold consent to an adoption[,] or to
receive notice of a hearing on a petition for adoption[.]”).

{24} Most important to our purposes are the amendments to the language regarding the
effect of termination of parental rights. That language was amended to remove reference to
a parent’s “duties and obligations” to a child, as well as to a child’s rights, duties, privileges
and obligations with respect to a parent. Section 32-1-55(J). It was also amended to
preserve a child’s right to inherit from the terminated parent. Id. Thus, the 1985 amendment
resulted in the language that is at the heart of this case.

{25} The question is whether the changes in language from 1975 to 1985 reveal a
legislative intent to continue support obligations after termination of parental rights. We
conclude that they do not. We start by considering the reason for the termination provisions.
The overall purposes of the Children’s Code are to promote the best interests of the children
involved and to promote the unity of the family whenever possible. See § 32-1-54(A);
NMSA 1978, § 32-1-2(A) (1972). The unfortunate but inescapable fact, however, is that at
times these two goals are irreconcilable. Given the findings entered by the district court in
its order terminating Father’s rights here, it appears this was one of those times. When that
occurs termination of parental rights is required. See In re Adoption of J.J.B., 119 N.M. 638,
652, 894 P.2d 994, 1008 (1995). The 1971 and 1975 versions of the provisions on the effect
of termination clearly describe a complete severance of the parent-child relationship. See
1971 N.M. Laws, ch. 222 at 754 (discussing Section 22-2-23(E) (1971)); § 22-2-23(F), (G)
(1975) (Vol. 5, 1975 Pocket Supp.). They reflect that the function of termination is to
separate as completely as possible the child from a dysfunctional parent—all in the child’s
best interest. See In re Adoption of Doe, 101 N.M. 34, 37, 677 P.2d 1070, 1073 (Ct. App.
1984).

{26} Though the language used in 1985 is simpler, we perceive no intent by the
Legislature to change the purpose and function of termination; that is, severance of the
parent-child relationship. The one exception, of course, is that the Legislature explicitly
preserved the child’s right of inheritance. This change does not indicate a legislative intent
to preserve ongoing support obligations of the parent. Inheritance rights and child support
are simply too different to infer a legislative connection. If anything, the explicit treatment
of inheritance rights and silence as to ongoing support implies a legislative intent to not alter
the effect of termination on support duties.

{27} We also note that the 1985 amendments deleted reference to childrens’ “legal rights,
privileges, duties and obligations with respect to parents.” If the legislature harbored any
intent to thereby alter the effect of severance of the parent-child relationship and retain
parental responsibility for financial support, there would be no need to explicitly exclude

                                                9
inheritance rights from the effect of termination. And deleting reference to a child’s rights
and privileges is quite an odd way to preserve a right to continuing support. The
continuation of support obligations after termination—a signal change—would seemingly
require definitive action by the Legislature.

{28} Father argues that the 1985 amendment was in response to this Court’s 1978 holding
in Wasson v. Wasson, 92 N.M. 162, 164, 584 P.2d 713, 715 (Ct. App. 1978). Father argues
that the Legislature eliminated references to a parent’s “duties and obligations” from the
termination statute because they were “unnecessary” after the Wasson Court implicitly
accepted that “termination of parental rights includes both parental rights and parental
obligations” when it cited “approv[ingly]” to Anguis v. Superior Court In & For County of
Maricopa, 429 P.2d 702 (Ariz. Ct. App. 1967) and Roelfs v. Sam P. Wallingford, Inc., 486
P.2d 1371 (Kan. 1971). See Wasson, 92 N.M. at 164, 584 P.2d at 715. In Wasson, the Court
relied on the pre-1985 language, which expressly terminated a parent’s “duties and
obligations” to a child when the parent’s rights were terminated, to hold that termination of
parental rights of the father was not in the best interests of the child because termination of
the father’s rights would also terminate the child’s right to inherit from the father. Id.
According to Father, “[t]he Legislature’s . . . elimination of [the words] ‘duties and
obligations’ [after Wasson] should properly be interpreted as the removal of superfluous
language which was unnecessary in view of the judicially accepted recognition” that the
rights of parents and children are reciprocal. See State v. Cleve, 1999-NMSC-017, ¶ 14, 127
N.M. 240, 980 P.2d 23 (stating the presumption that the Legislature is aware of case law
when drafting legislation and “could have expressly taken a different approach” from the
court in amendments to a statute if it disagreed with the court’s interpretation) (internal
quotation marks and citation omitted)).

{29} Father simply pushes the Court’s mere citation to Anguis and Roelfs too far. The
reference to Anguis and Roelfs can be seen as the Court’s general agreement with the
approach evident in those cases to treat parental “rights” and “obligations” as two faces of
the same coin. But the Wasson holding was based on the explicit language of the statute in
place at the time; the Court did not have to “construe” the statute’s language at all or rely on
foreign cases to reach its ruling. Wasson, 91 N.M. at 163-64, 584 P.2d at 714-15. The
significance of the Court’s reference to Anguis and Roelfs in Wasson is thus ambiguous.
Furthermore, Roelfs was based on an examination of Kansas statutes, which are different
from those here, and is, therefore, of limited use. 486 P.2d at 1374-76. In addition, the
Anguis court’s definition of parental rights “is totally devoid of any use of the rules of
statutory construction or any other legal reasoning. It appears that the court simply decided
without any basis that the term “ ‘parental rights’ . . . means ‘both parental rights and
parental obligations.’ ” Ex parte M.D.C., 39 So. 3d 1117, 1126 (Ala. 2009) (citation
omitted). Thus, we do not agree with Father that we can assume the Legislature relied on
a seven-year-old case for a “judicially accepted” definition of parental rights in crafting




                                              10
Section 32-1-55(J)3. See Swink, 115 N.M. at 283, 850 P.2d at 986 (“Legislative silence is
at best a tenuous guide to determining legislative intent[.]”).

{30} We conclude that the changes in the statute from 1975 to 1985 cannot reasonably be
interpreted to preserve ongoing support obligations by parents after termination.

5.      Related Statutory Provisions

{31} We next examine related parts of the Children’s Code. Father argues that we can
ascertain legislative intent to extinguish a parent’s obligation to support a child after
termination from the requirement for the district court to “appoint a custodian for the
minor . . . and fix responsibility for the minor’s support” after parental rights are terminated.
Section 32-1-55(I). He notes that this provision is not specific as to who should be
responsible for supporting a child after a parent’s rights are terminated and contrasts it with
the “Parental responsibility” provision, which states that “[t]he court shall order the parent
to pay the reasonable costs of support and maintenance of the child that the parent is
financially able to pay if a child is adjudicated to be neglected, abused or in need of
supervision and the court orders the child placed with an agency or individual other than the
parent.” (emphasis added). § 32-1-47(C); see § 32-1-41(C) (permitting the court to order the
parent to pay a “reasonable sum” for the support of the child if legal custody of the child has
been “vested in someone other than the child’s parents” and permitting contempt charges if
the parent “willfully fails . . . to pay”). Father assumes that Section 32-1-47(C) applies only
when parental rights are not terminated and that “[i]f the Legislature had not intended to
distinguish between a parent’s child support responsibility when the child is placed with a
third party without termination of parental rights and when a parent’s rights are terminated,
then it logically would have likewise imposed an express duty [to pay] child support on a
parent whose rights have been terminated.”

{32} Mother argues to the contrary that Section 32-1-47(C) supports continuation of
support obligations after termination. She argues that Father’s distinction between Section
32-1-47(C) and Section 32-1-55(I) is specious because Section 32-1-47(C)’s provision
applies even when parental rights are terminated so long as the two stated conditions
(adjudication of abuse or neglect and a court-ordered placement other than with the parent)
are met, and that its silence as to termination of parental rights means that termination has
no effect on responsibilities under the provision.

{33} We do not agree with either interpretation fully, though we conclude that Father is
closer to the mark. We agree that Section 32-1-47(C) applies only to instances in which


        3
        It is much more likely that the 1985 amendments were prompted by the U.S.
Supreme Court opinion in Santosky v. Kramer, 455 U.S. 745 (1982) which explicitly
recognized a fundamental liberty interest in the right of parents to raise their children.


                                               11
parental rights have not been terminated. By its terms, Section 32-1-47(C) applies to a set
of circumstances that are broader than and separate from orders of termination. Placement
of a child with a parent is not possible after termination of that parent’s rights. See Section
32-1-3(I) (defining “custodian” as “a person, other than a parent or guardian, who exercises
physical control, care or custody of the child”). Thus, Section 32-1-47(C) cannot apply
when parental rights are terminated because it presumes the possibility that placement with
a parent is an option. This interpretation is bolstered by Section 32-1-47(A), which describes
a factual scenario—an action against the child personally in which the parents may be
joined—which can only occur pre-termination. Further, there is nothing about a finding that
a child is in need of supervision or has been neglected or abused that necessarily requires
termination. Situations that progress to termination are handled under Sections 32-1-54 and
-55. Orders of support entered prior to actual termination bear no relationship to what may
be appropriately ordered after termination. In sum, we conclude that Section 32-1-47
addresses a different problem in the course of child adjudications and is not helpful in
assessing what Section 32-1-55(J) means with regard to ongoing parental support after
termination.

{34} The definition of “parental rights” referenced in the termination provisions does not
mention parental responsibilities. Section 40-7-30(K). We acknowledge that other parts of
the Children’s Code explicitly distinguished between rights and responsibilities. For
example, the definition of “legal custody” was:

       [A] legal status created by the order of the court . . . that vests in a person or
       agency the right to determine where and with whom a child shall live; the
       right and duty to protect, train and discipline the child and to provide him
       with food, shelter, education and ordinary and emergency medical care; and
       the right to consent to his enlistment in the armed forces of the United States,
       all subject to . . . any existing parental rights and responsibilities.

Section 32-1-3(J) (emphasis added).

{35} Similarly, a “[p]ermanent guardianship vests in the guardian all rights and
responsibilities of a parent, subject to the rights and responsibilities of the natural or
adoptive parent, if any, as set forth in the decree of permanent guardianship.” NMSA 1978,
§ 32-1-58(A) (1987).

{36} This review reveals that the Legislature intentionally distinguished between parental
rights and parental responsibilities in some provisions. Of course, we “read the statute in its
entirety and construe each part in connection with every other part to produce a harmonious
whole.” Key, 121 N.M. at 769, 918 P.2d at 355. However, these provisions do not provide
any help in interpreting legislative intent as to support payments after termination.

{37} Sections 32-1-3(J) and 32-1-58(A) address circumstances that can only exist pre-
termination. This alone makes them suspect as guides to the meaning and effect of

                                              12
provisions which apply post-termination. In addition, Sections 32-1-3(J) and 32-1-58(A)
address the problems inherent to situations in that the control of and responsibility for a child
is placed in persons or agencies foreign to the child. There is an obvious need to be more
detailed as to the powers and duties vested in a non-parent over a child. In some instances
a complicating factor may be that custody—in its broadest sense—may be split between
persons and agencies and even parents. When “custody” is split there is even more need for
recognition in the controlling statute of the various roles inherent in taking care of a child.
But these considerations say nothing about these roles after termination. Termination is
meant to eliminate a parent’s connection with the child. There is no need for parsing roles
thereafter because the parent has none.

{38} We conclude that the Legislature had no intent to change the fundamental nature and
effect of an order terminating rights when it amended the Children’s Code in 1985. The
fundamental and terrible act of severing the parent-child relationship cuts off all connection
between them except as specifically excepted by the Legislature.

{39} Our analysis has relied on our interpretation of New Mexico’s statutes as they existed
as of March 1993. We have not relied on out-of-state authorities to this point—though they
are numerous. Our reluctance to rely on out-of-state cases stems primarily from the fact that
the statutory schemes they interpret are different. See, e.g., Roelfs, 486 P.2d at 1374-76.
The scope of the differences weakens their force as interpretive guides in New Mexico. In
addition, some of the cases do not engage in sufficiently independent analysis, choosing
instead to cite cases from other states and essentially say “we agree.” See, e.g., Anguis, 429
P.2d at 705; In re K.S., 515 P.2d 130, 133 (Colo. 1973); Coffey v. Vasquez, 350 S.E.2d 396,
397 (S.C. Ct. App. 1986). With those limitations in mind, we do note that the great majority
of out-of-state cases agree that almost as a matter of definition termination of parental
rights—or more accurately the parent-child relationship—works to end the parental support
obligation. An illustrative case is County of Ventura v. Gonzales, 106 Cal. Rptr. 2d 461, 464
(Cal. Ct. App. 2001), concluding that an order terminating parental rights completely severs
the parent-child relationship and implicitly terminates the parental duty of support. See also
State ex rel. Welfare Div. of Dep’t of Human Res. v. Vine, 662 P.2d 295, 297-98 (Nev. 1983)
(holding that support obligations ended with termination of parental rights since termination
of parental rights severs the parent-child relationship).

{40} We decline to follow cases such as Ex parte M.D.C. and State v. Fritz, 801 A.2d 679
(R.I. 2002) because we believe they fail to address the function, purpose, and seriousness of
a termination of parental rights. Further, their analysis relies unduly on statutory provisions
other than their termination section for definitional guidance. As we demonstrate above,
other statutory provisions designed to address pre-termination circumstances offer no useful
guidance for the post-termination world. Our view and approach to the issue is more in line
with the vigorous dissent filed by Justice Murdock in Ex parte M.D.C., 39 So. 3d at 1133-45.

CONCLUSION


                                               13
{41}   The judgment below is reversed. The matter is dismissed.

{42}   IT IS SO ORDERED.

                                           ______________________________________
                                           MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge

____________________________________
MICHAEL E. VIGIL, Judge




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