July 28, 2010 – In re Guardianship of Kaitlynn Alexis Ware, a minor child, Jeamie Burris Awalt v. Eugene Knowles, No. 29,553

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:	2
Filing Date: 	July 28, 2010	3
NO. 29,553	4
IN THE MATTER OF THE GUARDIANSHIP	5
OF KAITLYNN ALEXIS WARE, a minor child,	6
JEAMIE BURRIS-AWALT,	7
Petitioner-Appellee,	8
v.	9
EUGENE KNOWLES,	10
Respondent-Appellant.	11
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY	12
Lisa C. Schultz, District Judge	13
Melissa J. Reeves, P.C., Attorney at Law	14
Melissa J. Reeves	15
Las Cruces, NM	16
for Appellee	17
Keithly & English, P.C.	18
Shane A. English	19
Anthony, NM	20
for Appellant	21

OPINION	1
BUSTAMANTE, Judge.	2
{1} 	This is an appeal from the judgment of the district court denying Respondent’s	3
request to set aside an order appointing guardian. We discuss: (1) whether the district	4
court’s judgment was a final appealable order; (2) whether the procedural provisions	5
of the Kinship Guardianship Act (KGA), NMSA 1978, §§ 40-10B-1 to -15 (2001),	6
were complied with prior to entry of the order appointing guardian; and (3) procedures	7
on remand. 	Finding no compliance with the KGA, we reverse and remand with	8
instructions.	9
{2} 	The parties also briefed whether the district court applied the correct legal	10
standard in reviewing Respondent’s motion to set aside guardianship and whether	11
there was sufficient evidence to support the district court’s decision. 	Given our	12
resolution of the case we do not address these issues.	13
BACKGROUND	14
{3} 	Kaitlynne W. (Child) was born to Tierra W. (Mother) and Eugene K. (Father)	15
on January 26, 2001. Child’s maternal grandmother (Grandmother) filed a petition	16
seeking guardianship of Child on November 26, 2002. While Grandmother’s petition	17
was pending, Mother and Father requested that Child, who had been residing with	18
Grandmother in Oklahoma, be returned to their custody. The district court agreed and	19

2
ordered Grandmother to return Child to Mother and Father in New Mexico pending	1
a final hearing on the matter.	2
{4} 	Grandmother’s petition seeking guardianship was never ruled upon, as the	3
matter was resolved when Mother, Father, and Grandmother instead reached a	4
settlement agreement on May 8, 2003. The district court approved the settlement and	5
ordered that it be implemented. Pursuant to the settlement agreement, Mother and	6
Father were to remain custodians and primary caretakers of Child, while Grandmother	7
would have reasonable visitation rights. A parenting coordinator was appointed in	8
accord with the settlement agreement. Shortly after the settlement agreement, Mother	9
and Father separated and Mother increasingly began to leave Child in the care of	10
Grandmother, in violation of the settlement agreement. 	Father, on the other hand,	11
continued to maintain parental responsibility and time-sharing with Child during this	12
time.	13
{5} 	On September 7, 2006, the district court entered an order appointing guardian	14
naming Grandmother as guardian of Child (2006 Order). 	The order also reserved	15
“liberal” visitation rights for Father, but limited Mother’s visitation rights to two	16
weekends per month. There was no new petition for guardianship filed prior to entry	17
of the 2006 Order, nor was there notice to the parties or a hearing on the matter, as	18

3
required by the KGA. Sections 40-10B-5 to -6. The 2006 Order purports to be based	1
on the recommendations of the parenting coordinator. 	However, because it was	2
Summer and school was out, the parenting coordinator had in fact recommended that	3
Child reside with Father during the week and have only weekend visitations with	4
Grandmother. It should also be noted that neither the settlement agreement, nor the	5
recommendations of the guardian ad litem discuss appointment of a guardian for	6
Child.	7
{6} 	Father filed a motion to set aside guardianship, which was denied from the	8
bench on April 1, 2009, following a hearing by the district court. The district court	9
issued a written order on April 3, 2009, which contained a list of findings reflecting	10
most but not all of its oral April 1, 2009, decision. 	Grandmother argues that the	11
written order was not final because it did not contain all of the same findings as	12
announced by the district court at the hearing. Curiously, though the district court	13
requested proposed findings of fact and conclusions of law from the parties, it entered	14
its order before the parties were scheduled to file their documents. The record proper	15
seems to reflect that the district court did not reject or accept any of the requested	16
findings and conclusions filed by the parties.	17

4
DISCUSSION	1
Finality	2
{7} 	Grandmother argues that the April 3, 2009 order appealed from is not a final,	3
appealable order. 	The basis for Grandmother’s argument is that the district court	4
made several oral findings during a hearing the April 1, 2009, some of which were not	5
subsequently reduced to writing and included in the April 3, 2009 order.	6
{8} 	Typically, a party to a civil action may appeal only final orders or judgments.	7
NMSA 1978, § 39-3-2 (1966). A district court’s decision is generally not final for the	8
purposes of appeal if it contains neither “decretal language nor provisions directing	9
the entry of judgment.” Khalsa v. Levinson, 1998-NMCA-110, ¶ 2, 125 N.M. 680,	10
964 P.2d 844. 	Additionally, the general rule is that “an order or judgment is not	11
considered final unless all issues of law and fact have been determined and the case	12
disposed of by the [district] court to the fullest extent possible.” Kelly Inn No. 102,	13
Inc. v. Kapnison, 113 N.M. 231, 236, 824 P.2d 1033, 1038 (1992) (internal quotation	14
marks and citation omitted). 	This policy is grounded in the desire to discourage	15
“piecemeal appeals” that frustrate the efficiency of the judicial process. 	See	16
Banquest/First Nat’l Bank v. LMT, Inc., 105 N.M. 583, 585, 734 P.2d 1266, 1268	17
(1987) (discussing the policy against piecemeal appeals).	18

5
{9} 	However, New Mexico has recognized a need to balance judicial economy with	1
the “equally important policy of facilitating meaningful appellate review.” Kelly Inn	2
No. 102, Inc., 113 N.M. at 240, 824 P.2d at 1042. 	Placing too much emphasis on	3
judicial economy above all else poses a “danger of denying justice by delay.”	4
Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 (1950). 	Thus, New	5
Mexico courts have acknowledged that certain circumstances counsel deviation from	6
the general rule, and “the term ‘finality’ is to be given a practical, rather than a	7
technical, construction.” Kelly Inn No. 102, Inc., 113 N.M. at 236, 824 P.2d at 1038	8
(citation omitted).	9
{10} 	Grandmother’s argument also touches on a common concern in finality	10
analysis, which is that allowing an appeal based on the notion of “practical finality”	11
may render the appellate record incomplete. This, however, is not an issue here. In	12
Peterson v. Peterson, 98 N.M. 744, 652 P.2d 1195 (1982), the Court recognized that	13
while all of a district court’s findings of fact and conclusions of law should typically	14
be reduced to writing and entered along with the final order, failure to do so is not	15
fatal if the findings and conclusions are part of the transcript on appeal. 	Id. at 746,	16
652 P.2d at 1197. 	In such situations, “little would be accomplished, other than	17
incurring additional delay and further expense.” 	Id. 	Here, the appellate record is	18

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sufficient to allow meaningful review.	1
{11} 	While the April 3, 2009 order is certainly flawed in some ways, it is sufficiently	2
final for the purposes of appeal. 	First, while the order lacks decretal language—a	3
factor that can sometimes be indicative of a non-final order—the absence of this	4
language is not inherently fatal. Grandmother has asked this Court to remand the case	5
for entry of the additional findings and conclusions that were not included in the April	6
3, 2009 order. 	A remand, however, would frustrate rather than further judicial	7
efficiency. 	While 	certain 	administrative 	loose 	ends 	remain 	unresolved 	(the	8
replacement of the parenting coordinator, the specifics of Father’s visitation, etc.), the	9
purpose and effect of the April 3, 2009 order is to deny Father’s request to have the	10
guardianship set aside.	11
{12} 	Grandmother relies on State v. Morris, 69 N.M. 89, 364 P.2d 348 (1961), to	12
bolster her argument that the April 3, 2009 order was non-final and non-appealable.	13
In Morris, the court noted that “[a]n oral ruling by the [district] judge is not a final	14
judgment.” Id. at 91, 364 P.2d at 349. However, Morris is distinguishable from the	15
case at hand. Morris involved a criminal case, and the appeal in that case was taken	16
solely from an oral statement made by the Court, which was part of the stenographic	17
record. Id. at 90, 364 P.2d at 348. No written order or judgment was entered by the	18

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court. Id. In fact, the Court specifically stated that it was not imposing a sentence at	1
that time. Id. Unlike Morris, the district court in this case did enter a written order	2
on April 3, 2009, denying Father’s motion to set aside guardianship. The April 3,	3
2009 order further contains a list of findings upon which it is based. The fact that the	4
district court made some additional findings and conclusions during the April 1, 2009	5
hearing that are not included in the April 3, 2009 order, does not render the written	6
order non-final.	7
{13} 	Finally, the delay caused by remanding this case would substantially affect	8
Father’s rights, including his right to a review of whether his custody should have	9
been removed, and would only serve to prolong a case that is already marked by	10
significant delay. In State v. Durant, 2000-NMCA-066, ¶ 8, 129 N.M. 345, 7 P.3d	11
495, this Court announced what it termed the “‘sufficiently aggrieved’ rationale for	12
the finality rule.” Under the sufficiently aggrieved rationale, a court should apply a	13
practical construction of finality if the consequences of an order “are sufficiently	14
severe that the aggrieved party should be granted a right to appeal to alleviate hardship	15
that would otherwise accrue if the appeal were delayed.” Id.; see § 39-3-2 (stating that	16
an aggrieved party may appeal an “entry of judgment which affects substantial	17
rights”). An order denying a parent the ability to set aside a guardianship and resume	18

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parenting responsibility for his child impacts fundamental rights. The gravity of this	1
consequence is only compounded by the fact that this case has already undergone a	2
series of unfortunate delays. 	Further prolonging the resolution of this case by	3
remanding it to enter additional findings and conclusions simply cannot be justified.	4
{14} 	Thus, we conclude the April 3, 2009 order denying Father’s motion to set aside	5
guardianship is a final, appealable order, and is properly before this Court. We now	6
turn to the issue of whether the proper procedures were followed, as prescribed by the	7
KGA, prior to entry of the September 7, 2006 order appointing guardian.	8
THE KINSHIP GUARDIANSHIP ACT AND DUE PROCESS	9
Procedural Due Process	10
{15} 	Father argues that his due process rights were violated when the 2006 Order	11
was entered by the district court, because of the failure to follow any of the procedural	12
requirements of the KGA. “The question of whether an individual was afforded due	13
process is a question of law that we review de novo.” State ex rel. Children, Youth &	14
Families Dep’t v. Mafin M., 2003-NMSC-015, ¶ 17, 133 N.M. 827, 70 P.3d 1266.	15
{16} 	In this case, there are statutory provisions which provide a certain level of due	16
process that must be followed. The KGA provides that a kinship caregiver may file	17
a petition seeking to be appointed guardian of a minor child. Section 40-10B-5. The	18

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KGA requires the court to schedule a hearing on the petition, Section 40-10B-6(A),	1
and the petitioner must serve notice of the hearing, along with the petition, upon all	2
concerned parties, including the parents of the minor child. 	Section 40-10B-6(B).	3
The involved parties have a statutory right to file a response to the petition. Section	4
40-10B-6(D).	5
{17} 	In 	this 	case, 	none 	of 	the 	required 	procedures 	were 	followed. 	While	6
Grandmother did file a petition for guardianship in November 2002 that complied	7
with these provisions, the matter was resolved when the parties reached a settlement	8
agreement on May 8, 2003. 	No new petition for guardianship was filed with the	9
district court prior to entry of the 2006 Order. Instead, the 2006 Order was prepared	10
by Grandmother’s attorney and signed by the district court judge in an ex parte	11
proceeding. 	No notice was ever given to Mother or Father, and no hearing was	12
scheduled or held on the matter. Although the district court later recognized that a	13
failure of process may have occurred, the court did not seem to appreciate the	14
significance 	of 	this 	failure, 	calling 	it 	merely 	a 	“technical 	violation.” 	We	15
fundamentally disagree with the district court’s assessment of the gravity of the due	16
process violation which occurred here. 	Failure to comply with the KGA stripped	17
Father of his statutory and constitutional right to file a response and of his	18

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constitutional right to be heard on a matter involving his parental rights. 	See N.M.	1
Const. art. II, § 18.	2
{18} 	Considering that neither the recommendations of the parenting coordinator, nor	3
the guardian ad litem made any mention of the need to appoint a guardian, Father had	4
no reason to anticipate that a guardian was going to be summarily appointed, or that	5
he would need to take any action to prevent this from happening. Furthermore, even	6
though Mother violated the settlement agreement, the agreement made no mention of	7
automatic appointment of a guardian in the case of a breach of condition. In fact, the	8
agreement stated that “the failure or fault of one Parent shall not be deemed the failure	9
or fault of the other unless it is shown that the Parents acted in concert.”	10
{19} 	Entry of the 2006 Order, in the absence of appropriate notice and an opportunity	11
to be heard, was simply in violation of Father’s due process rights. 	This by itself	12
argues in favor of reversal. 	There is another practical reason which impels us to	13
reverse. 	It is likely that the existence of the improperly entered order improperly	14
shifted the burden of proof in the proceedings below. 	Grandmother was never	15
required to meet the burden of proof prescribed by the KGA for establishing a	16
guardianship, 	nor 	did 	she 	make 	any 	evidentiary 	showing 	in 	support 	of 	the	17
guardianship. Once the guardianship had been put in place, and the initial impropriety	18

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of the entry brushed aside as a “technicality,” the burden improperly shifted to Father	1
to establish that the guardianship should be set aside as a factual matter. 	This	2
approach shifted the normal burden of proof improperly. For these reasons, the 2006	3
Order appointing guardian must be reversed.	4
REMAND	5
{20} 	Reversal of the district court “does not necessarily mandate a return of custody	6
to” Father. In re Guardianship of Ashleigh R., 2002-NMCA-103, ¶ 13, 132 N.M. 772,	7
55 P.3d 984. While the guardianship was improperly imposed, we cannot ignore the	8
situation on the ground. 	The record reveals that Child has lived primarily with	9
Grandmother for a number of years. Grandmother has provided a reasonably stable	10
environment and she and Child are clearly bonded. It does not require any particular	11
expertise to recognize that a sudden disruption of the status quo would have negative	12
consequences for Child.	13
{21} 	On remand, the district court’s first task should be to consider interim custody	14
arrangements in light of all extant circumstances. In re Guardianship of Sabrina Mae	15
D., 114 N.M. 133, 139, 835 P.2d 849, 855 (Ct. App. 1992) (“[T]he court may award	16
or continue custody in third parties without issuing letters of guardianship.”). Interim	17
custody arrangements should include measures aimed at re-establishing Child and	18

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Father’s relationship to the extent possible. 	See In re Adoption of J.J.B., 119 N.M.	1
638, 654, 894 P.2d 994, 1010 (1995).	2
CONCLUSION	3
{22} 	We reverse the denial by the district court of Father’s motion to set aside the	4
guardianship order entered September 7, 2006, and remand for further proceedings not	5
inconsistent with this opinion.	6
{23} 	IT IS SO ORDERED.	7
8
MICHAEL D. BUSTAMANTE, Judge	9
WE CONCUR:	10
11
MICHAEL E. VIGIL, Judge	12
13
TIMOTHY L. GARCIA, Judge	14