NEW MEXICO COURT OF APPEALS DECLARES A KINSHIP GUARDIANSHIP - BY: NICOLE L.

NEW MEXICO COURT OF APPEALS DECLARES A KINSHIP GUARDIANSHIP CANNOT BE TERMINATED UNDER THE KINSHIP GUARDIAN ACT State ex rel. Children, Youth and Families Dept. v. Djamila B. 322 P.3d 444 N.M.App.,2014. February 10, 2014 Facts: In June 2010, Children, Youth and Families Department (CYFD) took custody of Children and filed a neglect/abuse petition against mother, father, stepfather, and Guardian (Djamila B.) pursuant to the Abuse and Neglect Act. After a few hearings, the district court adopted CYFD’s reunification plan and the children began to transition back to living with Guardian as long as she continued with the treatment plan. Approximately six months later, on February 16, 2012, CYFD filed a motion to dismiss Guardian from the proceedings, stating that it was changing its permanency plan for Children from reunification with Guardian to adoption and would pursue termination of parental rights. CYFD alleged that, since Guardian is not Children’s parent with no parental rights to terminate, she was not an appropriate party to the termination of parental rights proceedings. CYFD further asserted that per CYFD policy,” Guardian was not eligible to adopt children or for foster placement. CYFD then filed a motion to terminate the parental rights of Children’s natural parents, and a motion for open adoption mediation on July 26, 2012, three weeks after Guardian was dismissed. Guardian filed an appeal. However, CYFD never terminated the guardianship; therefore the kinship guardianship continued. In addition, CYFD never served Respondent with any of the open adoption paperwork. Procedure: District Court agreed with CYFD’s policy and motion to terminate parental right and its motion for open adoption. Issue: Did the District Court err in this case when Guardian was involuntarily dismissed from the case without the kinship guardianship first being terminated as provided in the Kinship Guardian Act (KGA)? Holding: Yes, the Court of Appeals found that District Court did error because Guardian’s kinship guardianship cannot be terminated under the Act, and it had not been revoked pursuant to the KGA, Guardian’s status has not been terminated. As such, it was error for the district court to dismiss Guardian from the abuse and neglect case. The judgment of the District Court is reversed and remanded. Reasoning: Guardian remained a necessary and indispensable party. An adoption cannot take place while the kinship guardianship still exists. A petition for adoption must allege “the existence of any court orders, including placement orders, that are known to the petitioner and that regulate custody, visitation, or access to the adoptee, copies of which shall accompany and be attached to the petition as exhibits. The petition must be served upon “the legally appointed custodian or guardian of the adoptee” unless service “has been previously waived in writing”. Link: http://web2.westlaw.com/result/default.wl?cfid=1&mt=Westlaw&origin=Search&sskey=CLID_SSSA37865124820185&query=%22LEGAL+CUSTODY%22+%22PARENTAL+RIGHTS%22+%22BEST+INTERESTS%22&db=NM-CS&cnt=DOC&rlt=CLID_QRYRLT8199134820185&method=TNC&service=Search&eq=search&rp=%2fsearch%2fdefault.wl&srch=TRUE&vr=2.0&action=Search&rlti=1&rltdb=CLID_DB33865124820185&fmqv=s&sv=Split&n=-1&fn=_top&rs=WLW14.04