October 1, 2021- D.W. v. B.C., No. A-1-CA-37797

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
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in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________	2
Filing Date: OCTOBER 1, 2021	3
No. A-1-CA-37797	4
D.W.,	5
Petitioner-Appellant,	6
v.	7
B.C.,	8
Respondent-Appellee.	9
APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY	10
Jarod K. Hofacket, District Judge	11
Laflin, Pick & Heer, P.A.	12
C. Joseph Wiseman	13
Albuquerque, NM	14
L. Helen Bennett, P.C.	15
L. Helen Bennett	16
Albuquerque, NM	17
for Appellant	18
B. C.	19
Silver City, NM	20
Pro Se Appellee	21
Court of Appeals of New Mexico
Filed 10/1/2021 9:57 AM

OPINION	1
YOHALEM, Judge.	2
{1} 	D.W. (Grandmother) appeals the district court’s dismissal of her petition for	3
kinship guardianship of her then twelve-year-old granddaughter, M.C. (Child),	4
pursuant to the New Mexico Kinship Guardianship Act, NMSA 1978, Sections 40-	5
10B-1 to -15 (2001, as amended through 2015) (the Act).1 Grandmother sought	6
kinship guardianship pursuant to Section 40-10B-8(B)(3) of the Act after the	7
unexpected 	death 	of 	Child’s 	mother, 	alleging 	that 	there 	were 	extraordinary	8
circumstances warranting the appointment. Section 40-10B-8(B)(3) states that the	9
district court may appoint a kinship guardian when “the child has resided with the	10
petitioner without the parent for a period of ninety days or more immediately	11
preceding the date the petition is filed and a parent having legal custody of the child	12
is 	currently unwilling or unable to 	provide adequate care, 	maintenance and	13
supervision for the child or there are extraordinary circumstances.” Grandmother’s	14
petition discloses that Child had resided with her for fourteen days, less than the full	15
ninety days prior to the filing of the petition required by Section 40-10B-8(B)(3).	16
{2} 	Grandmother contends on appeal that (1) the district court erred in strictly	17
construing the ninety-day residence requirement as a mandatory prerequisite to the	18
1 All references to the Act in this opinion are to the 2001 version of the statute,
as amended through 2015. Grandmother’s petition was filed prior to the 2020
amendments to the Act.

2
filing of a kinship guardianship petition pursuant to Section 40-10B-8(B)(3), even	1
when extraordinary circumstances are alleged; and (2) the district court erred in	2
dismissing her petition on the alternative basis that the petition failed to allege facts	3
sufficient to establish “extraordinary circumstances” under the Act as a matter of	4
law. We reverse and remand for a full evidentiary hearing and a decision on the	5
merits of Grandmother’s kinship guardianship petition.	6
BACKGROUND	7
{3} 	Grandmother’s verified petition seeking appointment as Child’s kinship	8
guardian was filed days after the unexpected death of Child’s mother. Child had been	9
living with Grandmother for fourteen days, since her mother was injured, when the	10
petition was filed. Prior to her mother’s injury, Child had lived since her birth in a	11
house 	on 	the 	same 	property 	as 	Grandmother. 	Grandmother 	alleged 	a 	close	12
relationship with Child based on daily contact since Child’s birth. Grandmother	13
reported that she currently was acting as Child’s kinship caregiver, as defined by	14
Section 40-10B-3(A) of the Act.	15
{4} 	Grandmother’s petition alleged that Child suffered from severe mental and	16
emotional problems that predated her mother’s death; these symptoms had been	17
exacerbated by deep grief; B.C. (Father) had proved unwilling to engage in	18
psychotherapy and parenting instruction, which had been ordered by the court during	19
parents’ divorce; the divorce court had denied Father any contact with Child during	20

3
the year preceding Mother’s death; and the opinion of Child’s therapist and the	1
findings of the divorce court were that it would be detrimental to Child’s mental and	2
physical 	health 	to 	be 	placed 	in 	Father’s 	care. 	Grandmother 	pleaded 	that	3
extraordinary circumstances made serious detriment to Child likely if she was	4
returned immediately to Father’s custody and care. Grandmother also alleged that	5
Father “is unable to provide adequate care, maintenance[,] and supervision for the	6
child[,]” but did not rely on this as an independent basis for her petition for kinship	7
guardianship.	8
{5} 	The district court granted Father’s motion to dismiss Grandmother’s petition	9
for kinship guardianship, “[b]ecause the Petition does not meet the requirement of	10
Section 40-10B-8[(B)(3)]” that Child has resided with Grandmother without a parent	11
for a minimum of ninety days before the filing of the petition. The district court also	12
dismissed the petition on the basis that the sudden death of a parent and Child’s	13
severe 	mental 	illness 	were 	each 	too 	common 	an 	occurrence 	to 	qualify 	as	14
“extraordinary circumstances” under Section 40-10B-8(B)(3).	15
{6} 	Although the district court dismissed the petition and affirmed legal custody	16
of Child in Father, the court nonetheless refused to immediately return Child to	17
Father’s physical custody. Exercising its parens patriae authority, see Ridenour v.	18
Ridenour, 1995-NMCA-072, ¶ 8, 120 N.M. 352, 901 P.2d 770, the district court	19
retained limited jurisdiction, concluding that it was in Child’s best interest for the	20

4
court to supervise Child’s transition from Grandmother to Father. The district court	1
ordered Father to work with a reunification specialist to repair his relationship with	2
Child, set a court-ordered goal of returning Child to Father’s care within ninety days,	3
and ordered Grandmother to cooperate with Child’s transition to Father’s care.2
4
{7} 	Grandmother filed an appeal to this Court from the order of dismissal of her	5
kinship guardianship petition, together with a petition for writ of error. The appeal	6
and the writ of error have been consolidated for decision by this Court.	7
DISCUSSION	8
I. 	Our Legislature Did Not Intend the Ninety-Day Residence Requirement	9
to Be Strictly Applied When There Are Extraordinary Circumstances	10
{8} 	A district court may appoint a kinship guardian when “[u]pon hearing, . . . the	11
court finds that a qualified person seeks appointment, the venue is proper, the	12
required notices have been given, the requirements of [Section 40-10B-8(B)] . . .	13
have been proved and the best interests of the minor will be served by the requested	14
appointment[.]” Section 40-10B-8(A). In this case, there was no dispute that	15
Grandmother was a qualified person, that venue was proper, and that required	16
notices had been given. Grandmother sought kinship guardianship solely pursuant	17
to Section 40-10B-8(B)(3).	18
2 The supplemental district court record submitted to this Court, along with a
review of the district court record in Odyssey, shows that Child currently remains
with Grandmother by court order, pursuant to the district court’s general parens
patriae authority to act in the best interest of the child.

5
{9} 	The primary ground stated by the district court for dismissing the petition was	1
Grandmother’s failure to satisfy what the court concluded was a mandatory	2
prerequisite for the appointment of a kinship guardian under Section 40-10B-	3
8(B)(3)—that Child had resided with Grandmother without a parent for a period of	4
ninety days before the petition was filed.	5
{10} 	Grandmother argued in the district court, and continues to argue on appeal,	6
that Section 40-10B-8(B)(3) should be read so that the ninety-day residence	7
requirement applies only when a child’s parents are alleged to be “currently	8
unwilling or unable to provide adequate care, maintenance and supervision for the	9
child[,]” and not when the petition alleges instead that there are extraordinary	10
circumstances requiring appointment of a kinship guardian. Grandmother supports	11
her claim with a close textual analysis, contending that the word “or” divides the	12
phrase “there are extraordinary circumstances,” from all of the language preceding	13
that phrase. Grandmother reads the statute as follows:	14
the district court may appoint a kinship guardian when	15
[(a)] [C]hild has resided with the [P]etitioner without the parent for a	16
period of ninety days or more immediately preceding the date the	17
petition is filed and a parent having legal custody of . . . [C]hild is	18
currently unwilling or unable to provide adequate care, maintenance	19
and supervision for . . . [C]hild	20
or	21
[(b)] 	there are extraordinary circumstances.	22

6
{11} 	The district court rejected Grandmother’s construction of the statute, applying	1
its own close textual analysis of the statutory language. The district court read the	2
extraordinary circumstances requirement as an alternative only to a finding of	3
parental unfitness, concluding that the first clause of the statute requiring residence	4
for ninety days applied to both alternatives: when parents are unable or unwilling to	5
provide adequate care, or when there are extraordinary circumstances. The district	6
court read the statute as follows:	7
the district court may appoint a kinship guardian when	8
child has resided with the petitioner without the parent for a period of	9
ninety days or more immediately preceding the date the petition is filed	10
and	11
a parent having legal custody of the child is currently unwilling or	12
unable to provide adequate care, maintenance and supervision for the	13
child or there are extraordinary circumstances.	14
{12} 	The district court stated that it was basing its conclusion that the ninety-day	15
requirement applied to “both the provision regarding a parent who is unable to parent	16
and extraordinary circumstances” (emphasis added), on a strict reading of the text.	17
The district court relied as well, on how easy it would have been, in the court’s view,	18
for the Legislature to have created an additional subsection of Section 40-10B-8(B),	19
without the ninety-day predicate, if the Legislature had intended “extraordinary	20
circumstances,” to be an independent basis for a kinship guardianship.	21

7
{13} 	The very question raised here about the construction of Section 40-10B-	1
8(B)(3), 	whether 	the 	ninety-day residence 	requirement 	applies 	when 	kinship	2
guardianship 	is 	sought 	based 	on 	“extraordinary 	circumstances,” 	has 	arisen	3
previously in this Court. Stanley J. v. Cliff L., 2014-NMCA-029, ¶ 10 n.2, 319 P.3d	4
662 (internal quotation marks omitted). The majority in Stanley J., however, did not	5
reach this issue, instead concluding that there were no extraordinary circumstances	6
that justified the appointment of a kinship guardian. Id. ¶ 16. This remains, therefore,	7
an issue of first impression.	8
{14} 	We review questions of statutory construction de novo. State v. Smith, 2004-	9
NMSC-032, ¶ 8, 136 N.M. 372, 98 P.3d 1022. Our ultimate goal in construing a	10
statute “is to ascertain and give effect to the intent of the Legislature.” Id. Statutory	11
language must be interpreted and applied to meet the objective our Legislature	12
sought to accomplish. State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 23, 117	13
N.M. 346, 871 P.2d 1352. We analyze a statute’s function within a comprehensive	14
legislative scheme, with reference to the statute as a whole and in reference to	15
statutes dealing with the same general subject matter. See id. ¶ 26. Although we	16
begin by looking to the plain language of the statute, we cannot neglect our	17
obligation to interpret that language in light of “the purpose to be achieved and the	18
wrong to be remedied.” State ex rel. Children, Youth & Families Dep't v. Djamila	19

8
B. (In re Mahdjid B.), 2015-NMSC-003, ¶ 21, 342 P.3d 698 (internal quotation	1
marks and citation omitted).	2
{15} 	We do not agree with the district court that the language of Section 40-10B-	3
8(B)(3) is so plain that it should be applied as written, without further analysis of the	4
policies and purposes of the Act, and of Section 40-10B-8(B)(3) in particular. The	5
competing constructions suggested by Grandmother and the district court are both	6
grammatically correct, so that either reading could be the construction intended by	7
our Legislature. Nor are Grandmother’s and the district court’s conflicting readings	8
of the statute the only options: the extraordinary circumstances phrase, appended to	9
the end of Section 40-10B-8(B)(3), could also be construed to apply separately to	10
each preceding phrase of the statute.	11
{16} 	When the statutory language is “doubtful, ambiguous, or an adherence to the	12
literal use of the words would lead to injustice, absurdity or contradiction” we	13
construe the statute “according to its obvious spirit or reason.” State v. Tafoya, 2010-	14
NMSC-019, ¶ 10, 148 N.M. 391, 237 P.3d 693 (internal quotation marks and citation	15
omitted).	16
{17} 	Instead of turning to the spirit and reason of the Act, the district court turned	17
to the ease with which the Legislature might have clarified its meaning by creating	18
a separate subsection for “extraordinary circumstances,” if the Legislature had	19
intended to adopt Grandmother’s construction. The application of this rule of	20

9
statutory construction does not relieve us of the responsibility to carefully assess the	1
purpose and objectives of the statutory language our Legislature chose to use. See	2
Perea v. Baca, 1980-NMSC-079, ¶ 22, 94 N.M. 624, 627, 614 P.2d 541 (“A statute	3
must be read and given effect as it is written by the Legislature, not as the court may	4
think it should be or would have been written if the Legislature had envisaged all the	5
problems and complications which might arise in the course of its administration.”	6
(internal quotation marks and citation omitted)).	7
{18} 	Although the relationship between Section 40-10B-8(B)(3)’s “extraordinary	8
circumstances” language and the ninety-day length of residence requirement is an	9
issue of first impression, both our Supreme Court and this Court have previously	10
explored the intent of our Legislature in enacting the Act. Our Supreme Court has	11
also previously construed Section 40-10B-8(B)(3)’s “extraordinary circumstances”	12
language in relation to the requirement that the child reside with the petitioner	13
“without the parent,” and the requirement that the parent have legal custody of the	14
child. See In re Guardianship of Patrick D., 2012-NMSC-017, ¶¶ 24-30, 280 P.3d	15
909. This Court has construed “extraordinary circumstances” in relation to the	16
requirement that the parent be shown to be “unwilling or unable to care for [the	17
c]hild.” In re Guardianship of Victoria R., 2009-NMCA-007, ¶ 3, 145 N.M. 500,	18
201 P.3d 169; see Stanley J., 2014-NMCA-029, ¶¶ 10-28. We are guided in our	19
analysis by these opinions.	20

10
{19} 	In Patrick D., our Supreme Court identified the central purpose of the Act as	1
“ensur[ing] that children in New Mexico have the opportunity to be raised by their	2
relatives when both of their parents are unwilling and/or unable to care for them.”	3
2012-NMSC-017, ¶ 7; see § 40-10B-2(A). The Act establishes “procedures and	4
substantive standards for effecting legal relationships between children and adult	5
caretakers who have assumed the day-to-day responsibilities of caring for a child,”	6
authorizing kinship caregivers to make decisions for a child generally made by	7
parents, and providing legal authority to obtain medical care and make educational	8
decisions. In re Mahdjid B., 2015-NMSC-003, ¶ 21 (internal quotation marks and	9
citation omitted). The Act is intended to ensure that a child who “is not residing with	10
either parent” has “a stable and consistent relationship with a kinship caregiver, that	11
will enable the child to develop physically, mentally and emotionally to the	12
maximum extent possible when the child’s parents are not willing or able to do so.”	13
Section 40-10B-2(C). As our Supreme Court has stated, the Act should be applied,	14
in addition, “to allow the parents to maintain or rebuild their relationship with the	15
child when doing so would be in the child’s best interests.” Patrick D., 2012-NMSC-	16
017, ¶ 15.	17
{20} 	The central requirement, then, for a kinship guardianship, pursuant to Section	18
40-10B-8(B)(3), is that the child’s parents be “unwilling and/or unable to care for	19
[the child].” Patrick D., 2012-NMSC-017, ¶ 7; see § 40-10B-2(A). The Act’s	20

11
purpose is to keep the child with relatives or kinship caregivers with whom they have	1
a significant bond, which our Legislature found is the best possible alternative to	2
parental 	care. 	Section 	40-10B-2(A). 	The 	phrase 	“or 	there 	are 	extraordinary	3
circumstances,” has been construed by this Court in light of the legislative purposes	4
of a kinship guardianship to allow the creation of a kinship guardianship when a	5
parent is not currently “unwilling or unable” to provide adequate care, but where	6
there is instead “a substantial likelihood of serious physical or psychological harm	7
or serious detriment to the child,” if the child is placed with the parent. Victoria R.,	8
2009-NMCA-007, ¶ 28 (Pickard, J., specially concurring) (internal quotation marks	9
and citation omitted). This definition is drawn from our Supreme Court’s decision	10
in In re Adoption of J.J.B., 1995-NMSC-026, ¶ 68, 119 N.M. 638, 894 P.2d 994,	11
which adopted this exception to the parental preference doctrine.	12
{21} 	The construction of “extraordinary circumstances,” in 	Section 	40-10B-	13
8(B)(3), as an exception to parental unfitness, however, does not resolve the question	14
raised 	in 	this 	case 	about 	the 	relationship 	of 	the 	ninety-day 	requirement 	to	15
“extraordinary circumstances.” Our Supreme Court, in its decision in Patrick D.,	16
held that our Legislature intended the phrase “extraordinary circumstances” to apply	17
to other requirements found in Section 40-10B-8(B)(3), as well as to the parental	18
unfitness requirement. Patrick D., 2012-NMSC-017, ¶ 29 (internal quotation marks	19
omitted). Our Supreme Court has construed the phrase, “or there are extraordinary	20

12
circumstances” to demonstrate legislative intent to reject a rigid reading of the	1
threshold requirements of that section. Id. ¶¶ 10, 24. Although the length of time the	2
child had resided with the petitioner was not at issue in Patrick D., the related	3
requirement that the child reside with the petitioner “without the parent” for the	4
ninety-day period prior to filing the petition; and the requirement that the parent	5
“ha[ve] legal custody of the child” were at issue. Id. ¶¶ 24-30 (internal quotation	6
marks and citation omitted).	7
{22} 	In this context, our Supreme Court rejected a “rigid textual interpretation,” of	8
the threshold requirements of Section 40-10B-8(B)(3), holding that the phrase “or	9
there are extraordinary circumstances,” was intended by our Legislature to create a	10
“fail safe to allow courts to ensure that the Act is applied in a manner that adheres	11
to the spirit of the Act.” Patrick D., 2012-NMSC-017, ¶ 29. Recognizing that cases	12
where a kinship guardianship is sought “often involve unconventional family	13
structures and unconventional facts[,]” our Supreme Court held that a case may fall	14
within the spirit of the Act, and therefore within the intended scope of Section 40-	15
10B-8(B)(3), “even though the Legislature may have failed to contemplate [the	16
case’s] precise facts when it passed the Act.” Patrick D., 2012-NMSC-017, ¶ 29.	17
{23} 	The family circumstances in Patrick D. provide a useful example of the	18
construction by our Supreme Court of the requirements of Section 40-10B-8(B)(3).	19
One of the child’s parents in Patrick D. had consented to the kinship guardianship,	20

13
the other parent had previously been found by the district court to be unfit to care	1
for the child, resulting in legal custody of the child being vested in the child’s	2
grandparents by court order. 2012-NMSC-017, ¶ 1. At the time the petition was filed,	3
the child was residing and being cared for day-to-day by grandparents, pursuant to a	4
custody order. Id. ¶¶ 4-6. The child had lived with the petitioning grandparents for	5
more than ninety days at the time the petition was filed, so the length of residence	6
was not at issue. 	Id. 	¶ 21. The child’s mother, however, had resided with	7
grandparents during that ninety-day period, and participated in the child’s care. Id.	8
¶ 2. The father, who had been found to be “unwilling or unable” to parent child, id.	9
¶ 28, objected to the kinship guardianship, claiming that both Section 40-10B-	10
8(B)(3)’s requirement that the child had resided with the petitioner “without the	11
parent for a period of ninety days[,]” Patrick D., 2012-NMSC-017, ¶¶ 10, 24	12
(emphasis, internal quotation marks, and citation omitted), and the requirement that	13
the parents have legal custody of the child at the time the petition is filed—neither	14
of which were met—are mandatory and that the kinship guardianship petition should	15
be dismissed on that basis. See id. ¶ 29.	16
{24} 	Although recognizing that the plain language of the threshold requirements	17
for kinship guardianship was not satisfied, our Supreme Court held that the district	18
court had authority to appoint grandparents as the child’s kinship guardians because	19
the case involved “unconventional family structures and unconventional facts”	20

14
falling within the spirit of the Act. Id. ¶¶ 27-29, 32. Noting that “even though the	1
Legislature may have failed to contemplate these precise facts when it passed the	2
Act[,]” id. ¶ 29, several essential purposes of the Act were served: the mother living	3
in the grandparents’ home under the facts of this case facilitated reunification of the	4
child with the child’s parents, as intended by the Act, id. ¶¶ 33, 35, and it would be	5
an unreasonable reading of the Act to exclude a child from the benefits of the Act	6
because of the technicality that parents were subject to a court order removing legal	7
custody. Id. ¶¶ 28-29.	8
{25} 	Based then on the purposes and objectives our Legislature sought to serve,	9
and on our Supreme Court’s construction of the phrase “or there are extraordinary	10
circumstances[,]” we see no indication that our Legislature intended the ninety-day	11
requirement to be construed differently than the other threshold requirements of	12
Section 40-10B-8(B)(3). Where there is no parent who is able or willing to care for	13
child, or where placement in the care of the parent will result in significant harm or	14
deprivation to the child; where the child is living with the petitioner; and where an	15
unconventional family structure satisfies the objectives of the ninety-day residency	16
requirement, the petition adequately states a claim and dismissal without a full	17
hearing is not appropriate.	18

15
II. 	The Unusual Facts and Circumstances Alleged Here State a Claim for a	1
Kinship Guardianship, Pursuant to Section 40-10B-8(B)(3)	2
{26} 	In this case, Grandmother alleged both extraordinary circumstances satisfying	3
the 	purposes 	of 	the 	ninety-day 	residency 	requirement, 	and 	extraordinary	4
circumstances involving serious detriment to Child if returned to Father’s care, as	5
an alternative basis to unfitness of the parent. We conclude that the extraordinary	6
circumstances pleaded by Grandmother, if accepted as true, although not directly	7
included in the language of the Act, are the type of unconventional family	8
circumstances that bring Child’s situation within the spirit of the Act and that	9
Grandmother pleaded facts, which, if accepted as true, were sufficient to state a	10
claim for extraordinary circumstances based on the detriment to Child.	11
{27} 	We first discuss the standard of review applicable to the district court’s	12
decision granting Father’s motion to dismiss. We then apply that standard of review	13
to the allegations which bring this case within the policy and purposes served by the	14
ninety-day residence requirement. We next address Grandmother’s claim that	15
“extraordinary circumstances” provided an alternative to a finding that Father was	16
unable or unwilling to provide adequate care for Child under the standard established	17
by the J.J.B. decision.	18
A. 	Standard of Review	19
{28} 	We review a district court’s decision to dismiss a complaint for failure to state	20
a claim de novo. Healthsource, Inc. v. X-Ray Assocs. of N.M., P.C., 2005-NMCA-	21

16
097, ¶ 16, 138 N.M. 70, 116 P.3d 861. We test “the legal sufficiency of the	1
complaint, not the factual allegations of the pleadings which, for purposes of ruling	2
on the motion, the court must accept as true.” Herrera v. Quality Pontiac, 2003-	3
NMSC-018, ¶ 2, 134 N.M. 43, 73 P.3d 181.B.3 “[T]he motion may be granted only	4
when it appears the plaintiff cannot be entitled to relief under any state of facts	5
provable under the claim.” Runyan v. Jaramillo, 1977-NMSC-061, ¶ 21, 90 N.M.	6
629, 567 P.2d 478.	7
B. 	The 	Extraordinary 	Circumstances 	Alleged 	By 	Grandmother 	Are	8
Consistent With the Spirit and Purposes of the Ninety-Day Residence	9
Requirement	10
{29} 	When 	we 	apply 	our 	Supreme 	Court’s 	construction 	of 	“extraordinary	11
circumstances” to the facts and circumstances alleged by Grandmother, we conclude	12
that the unusual facts and circumstances and unconventional living arrangement in	13
this 	case 	are 	an 	example 	of 	“extraordinary 	circumstances” 	not 	specifically	14
contemplated by our Legislature, that nonetheless satisfy the purposes and spirit of	15
Section 40-10B-8(B)(3). Although not living with Grandmother in Grandmother’s	16
3 In its decision on Father’s motion to dismiss and for immediate custody of
Child, the district court considered evidence presented at the hearing on that motion.
To the extent that testimony supplemented and updated the petition, substituting for
an amended petition, the district court did not err in considering that testimony, and
we follow suit. We disregard, however, any findings of fact based on the evidence
at that hearing as inconsistent with the law requiring the district court to decide a
motion to dismiss treating the facts alleged as true, and drawing all inferences in
favor of Grandmother.

17
house, without her mother, for ninety days prior to the filing of the petition, Child	1
had lived on the same property as Grandmother since Child’s birth. Grandmother	2
had been involved with Child on a daily basis. Grandmother alleged that she had	3
formed the kind of close bond the ninety-day requirement was intended to ensure.	4
The sudden death of Child’s mother, who had been Child’s physical custodian, and	5
with whom Child had been living, created a crisis not anticipated by the statutory	6
language. Given the unusual living arrangement, where Grandmother had seen Child	7
daily and assisted in her care since her birth, Child’s lack of contact with Father for	8
nearly a year based on his noncompliance with an order of a domestic relations court	9
requiring him to improve his parenting skills, and Child’s fraught relationship with	10
Father, Child naturally turned to Grandmother and Grandmother stepped in to	11
provide parental care to Child.	12
{30} 	These allegations, if accepted as true, as they must be for purposes of a motion	13
to dismiss, describe unusual family circumstances that fall within the spirit of the	14
Act and satisfy the purposes of the ninety-day residence requirement; Grandmother	15
and Child have a strong bond, Grandmother has demonstrated her willingness and	16
ability to care for Child, and Grandmother is currently caring for Child. The district	17
court 	erred 	in 	dismissing 	the 	petition 	for 	failure 	to 	allege 	extraordinary	18
circumstances sufficient to meet the threshold requirements of Section 40-10B-	19
8(B)(3).	20

18
C. 	The 	Petition 	Sufficiently 	Alleged 	Facts 	Supporting 	Both 	Father’s	1
Inability 	or 	Unwillingness 	to 	Care 	for 	Child 	and 	Extraordinary	2
Circumstances Resulting in Serious Detriment to Child, as Defined in	3
J.J.B.	4
{31} 	Grandmother sufficiently alleged facts, which if accepted as true, established	5
that Father was either unable or unwilling to provide adequate care for Child.	6
Grandmother pleaded, and introduced to supplement her petition, the findings of the	7
domestic relations court that contact with Father was severely detrimental to Child’s	8
mental health, and that Father refused to comply with court-ordered therapy and	9
parenting instruction designed to remedy Father’s inability to provide parenting	10
appropriate to meet Child’s needs. Grandmother also alleged that, in the opinion of	11
Child’s therapist, Child was likely to suffer serious detriment to her physical and	12
mental health if the district court precipitously returned her to Father’s custody and	13
care. This allegation was supplemented at the hearing on Father’s motion to dismiss	14
with testimony describing Child’s severe anxiety and depression, refusal to eat if	15
forced to have contact with Father, and threats to harm herself.	16
{32} 	The allegations of the petition, as supplemented by the hearing on the motion	17
to dismiss, therefore, are sufficient to state a claim for kinship guardianship based	18
on Grandmother’s allegations of “extraordinary circumstances,” as defined in J.J.B.	19
{33} 	Where the petition states a claim for kinship guardianship, the district court	20
must conduct the evidentiary hearing required by Section 40-10B-8(A) of the Act,	21
and then, considering all of circumstances, determine whether the objectives of the	22

19
statute, and whether the best interests of child would be served by granting the	1
petition. The district court erred in failing to proceed to a hearing and decision.	2
CONCLUSION	3
{34} 	We reverse the dismissal of Grandmother’s petition for kinship guardianship	4
and remand for a hearing on whether, under the current circumstances, the	5
appointment of Grandmother as Child’s kinship guardian satisfies the requirements	6
of the Act and is in Child’s best interests.	7
{35} 	IT IS SO ORDERED.	8
_____________________________	9
JANE B. YOHALEM, Judge	10
WE CONCUR:	11
_____________________________	12
KRISTINA BOGARDUS, Judge	13
_____________________________	14
MEGAN P. DUFFY, Judge	15