October 07, 2009 – Lynda R. Vescio v. Shauna Richards Wolf and Christine Richards, No. 27,893

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: October 7, 2009
NO. 27,893
LYNDA R. VESCIO,
Petitioner-Appellant,
v.
SHAUNA RICHARDS WOLF,
Respondent-Appellee,
and
CHRISTINE RICHARDS,
Respondent-Appellee.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Michael T. Murphy, District Judge
Atkinson & Kelsey, P.A.
Patrick L. McDaniel
Albuquerque, NM
for Appellant
Shauna Richards Wolf
Christine Richards
Las Cruces, NM
Pro se Appellees

OPINION
KENNEDY, Judge.
{1} 	This case arises from a third-party petition for custody of an eight-year-old
minor girl (Child). The district court found that Petitioner-Appellant, Child’s aunt by
marriage (Aunt), lacked standing to bring a custody case. It concluded that Aunt’s
petition amounted to nothing more than an assertion of abuse and neglect, and because
abuse and neglect proceedings must originate with the Children, Youth and Families
Department (CYFD), it dismissed Aunt’s claim on the basis of standing. Later, during
proceedings on Aunt’s motion for reconsideration, she expressed an intention to file
a motion under NMSA 1978, Section 40-10B-12(A) (2001), of the Kinship
Guardianship Act (the Act), and the court disallowed her from doing so. It warned it
would consider such a motion contemptuous of its prior order of dismissal. 	{2}
On appeal, Aunt argues that the district court improperly dismissed her petition.
We disagree and affirm the district court’s order on the issue of standing. However,
we reverse to the extent the court prohibited Aunt from pursuing a claim under the
Act, which provides that any person may bring a motion to revoke a kinship
guardianship. Id.
I. 	FACTUAL AND PROCEDURAL BACKGROUND
{3} 	Aunt filed a petition seeking custody and time-sharing of Child. Apparently,
paternity has never been established, and the putative father is not involved with

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Child, nor has he ever been. Child lives with her grandmother (Grandmother), and
Child’s 	mother 	(Mother) 	consented 	to 	a 	kinship 	guardianship 	of 	Child 	to
Grandmother.
{4} 	Aunt is related to Child by prior marriage and claims Child has been subjected
to abuse by both Grandmother and Mother. Aunt alleged that Grandmother admitted
at least some of the abusive behavior, and according to Aunt, Child has contacted her
on several occasions regarding these conditions and requested that Aunt “get [her] out
of here.”
{5} 	Aunt filed a petition for custody and time-sharing alleging abuse and neglect
on the part of both Mother and Grandmother. 	As a result, she asserted, both were
unfit. 	Aunt also alleged a quasi-parental relationship with Child. 	Although Child
currently lives with Grandmother, Aunt has regular contact with Child, and Child has
resided with Aunt during past intervals. CYFD was notified of the possible abuse, and
it 	conducted 	an 	investigation, 	but 	its 	report 	found 	the 	abuse 	allegations
unsubstantiated.
{6} 	The district court granted Grandmother’s motion to dismiss, finding that Aunt
lacked standing to bring a case for custody because third parties may not initiate
custody cases without CYFD first filing an abuse and neglect charge. At a hearing on
a motion for reconsideration, Aunt indicated she instead planned to file a motion to

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terminate the kinship guardianship. The district court responded that it would likely
view any such action as contempt or, at the very least, an attempt to circumvent and
frustrate its ruling on the issue of standing. On appeal, Aunt argues that the district
court improperly held she lacked standing to seek custody of Child. She cites several
sources 	of 	law 	in 	support 	of 	her 	argument, 	including 	the 	Children’s 	Code,
extraordinary circumstances, the domestic relations statutes, and the Act. We consider
each below.
II. 	STANDARD OF REVIEW
{7} 	Initially, we observe that this case involves a dismissal without prejudice.
Generally, an order of dismissal without prejudice is not appealable because it
typically requires further proceedings. Ortega v. Transamerica Ins. Co., 91 N.M. 31,
33, 569 P.2d 957, 959 (Ct. App. 1977). Dismissal of a complaint without prejudice
is only final and appealable if the order disposes of the case to the fullest extent
possible in the court in which it was filed. 	Sunwest Bank of Albuquerque, N.M. v.
Nelson, 1998-NMSC-012, ¶¶ 7-9, 125 N.M. 170, 958 P.2d 740. 	Here, the district
court’s finding on standing negated any further action by Aunt; its order is therefore
final and appealable.
{8} 	“Whether a party has standing to bring a claim is a question of law which we
review de novo.” Prot. & Advocacy Sys. v. City of Albuquerque, 2008-NMCA-149,

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¶ 17, 145 N.M. 156, 195 P.3d 1. On a motion to dismiss for want of standing, courts
accept as true all material allegations in the complaint and affidavits and construe
them in favor of the plaintiffs. Id. Moreover, the district court’s order was based on
statutory interpretation, and we also review questions of statutory interpretation de
novo. Martin v. Middle Rio Grande Conservancy Dist., 2008-NMCA-151, ¶ 3, 145
N.M. 151, 194 P.3d 766.
III. 	THE DISTRICT COURT PROPERLY DISMISSED AUNT’S PETITION
FOR LACK OF STANDING
{9} 	A third party may pursue custody of a child in at least five distinct ways. See
§ 40-10B-12(A); In re Guardianship Petition of Lupe C., 112 N.M. 116, 119, 812
P.2d 365, 368 (Ct. App. 1991). First, the district court, sitting in equity, may consider
such a matter when extraordinary circumstances exist and there “is no other available
or adequate remedy at law.” 	In re Lupe C., 112 N.M. at 119, 812 P.2d at 368.
Second, in the event of a dissolution of marriage, on appropriate motion, a court may
determine that the child should go to a third party. 	Id. 	Third, when a parent or
guardian dies, the court may provide for a child’s custody under the Probate Code.
Id. at 119-20, 812 P.2d at 368-69. Fourth, where there has been a finding of abuse and
neglect, the court may award custody to a third party. Id. at 121, 812 P.2d at 370. And
fifth, a third party may assert a claim to terminate guardianship under the Act. Section
40-10B-12(A).

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{10} 	Aunt’s original petition for custody relies almost exclusively upon the fourth
method, asserting several instances of abuse and neglect allegedly perpetrated by
Grandmother and/or Mother. In its order dismissing her claim, the district court held
that “allegations of abuse and neglect are, under [the Children’s] Code, to be pursued
by [CYFD], and brought before the [c]ourt if the [d]epartment concludes that abuse
and neglect has occurred or that the guardian is unfit. An individual [cannot] bring the
abuse and neglect action.” The court’s conclusion is absolutely correct. As a rule,
abuse and neglect proceedings are initiated by CYFD on behalf of the affected child.
State ex rel. Children, Youth & Families Dep’t v. Jeremy N., 2008-NMCA-145, ¶ 6,
145 N.M. 198, 195 P.3d 365. “The [d]epartment is the only entity authorized to file
a petition of abuse or neglect.” Id.; see NMSA 1978, § 32A-4-4(A), (D) (2005)
(stating that upon a report of abuse or neglect, the department is responsible for
“conduct[ing] an investigation to determine the best interests of the child”); NMSA
1978, § 32A-4-15 (1993) (“A petition alleging neglect or abuse shall not be filed
unless the children’s court attorney has determined and endorsed upon the petition that
the filing of the petition is in the best interests of the child.”). Thus, Aunt possessed
no standing to bring such a petition, and what is more, CYFD had already completed
an investigation of Aunt’s allegations and found them unsubstantiated. Upon such
facts, we find nothing erroneous with a dismissal on the basis of standing.

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{11} 	In her motion to reconsider the dismissal, Aunt argued that the district court
should consider her claim on the basis of extraordinary circumstances, and she renews
that argument on appeal. As stated above, in New Mexico, a district court, sitting in
equity, may consider awarding custody to a third party under extraordinary
circumstances.
This power, however, is usually exercised when there is no other parent
or individual to act for the child. While equity may have the power to
take custody away from a parent, it will do so only in extreme
circumstances. This inherent power is limited to situations where there
is no other available or adequate remedy at law.
In re Lupe C., 112 N.M. at 119, 812 P.2d at 368 (emphasis added) (citations omitted);
see also In re Adoption of J.J.B., 119 N.M. 638, 652, 894 P.2d 994, 1008 (1995)
(stating that “[i]n New Mexico we give great weight to the presumption that, when a
family breaks up, custody should go to the natural parent” unless extraordinary
circumstances exist). “Where a district court denies equitable relief . . . we review the
matter 	for 	abuse 	of 	discretion.” 	In 	re 	Adoption 	Petition 	of 	Rebecca 	M.,
2008-NMCA-038, ¶ 22, 143 N.M. 554, 178 P.3d 839. In this case, Aunt raised her
extraordinary circumstances argument simultaneously with her assertion that the Act
allowed her to intervene. 	Even presuming the existence of such extraordinary
circumstances, however, we hold that, in the long run, though it eschewed a valid
route for Aunt which leads to our reversal herein, the district court properly refused

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to consider Aunt’s custody claim because she had an “available or adequate remedy”
under the Act. 	See In re Lupe C., 112 N.M. at 119, 812 P.2d at 368; see also
Meiboom v. Watson, 2000-NMSC-004, ¶ 20, 128 N.M. 536, 994 P.2d 1154 (holding
that we may affirm a district court if its holding was right for any reason). 	We
consider that issue below.
{12} 	Aunt’s bare assertion that the domestic relations statutes grant her standing to
pursue this claim is likewise without merit. Under NMSA 1978, Section 40-4-9.1(K)
(1999), during a proceeding for marital dissolution, a non-parent may seek custody
of a child. The statute authorizing the court to make an order for the guardianship of
a child “gives the district court relatively broad powers with respect to the children of
a marriage that is being dissolved.” In re Lupe C., 112 N.M. at 119, 812 P.2d at 368.
Although it does provide evidence that a third party may seek custody of a child, the
section only applies in the context of marital dissolution. See id. (“[I]n this case there
is no dissolution action before the district court.”). 	We thus reject the domestic
relations statutes as a basis to confer standing upon Aunt.
IV. 	THE COURT IMPROPERLY PROHIBITED AUNT FROM PURSUING
A CLAIM UNDER THE ACT
{13} 	At the conclusion of the hearing on Aunt’s motion for reconsideration, the
district court not only reaffirmed its prior decision that Aunt lacked standing to bring
her petition, but also cautioned that she would be held in contempt if she went forward

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with a claim under the Act. Such a prohibition was erroneous. Our goal in statutory
interpretation “is to determine and give effect to legislative intent. We do not depart
from the plain language of a statute unless we must resolve an ambiguity, correct a
mistake or absurdity, or deal with a conflict between different statutory provisions.”
N.M. Bd. of Veterinary Med. v. Riegger, 2007-NMSC-044, ¶ 11, 142 N.M. 248, 164
P.3d 947 (citation omitted). 	Section 40-10B-12(A) of the Act provides:
Any person, including a child who has reached his fourteenth
birthday, may move for revocation of a guardianship created pursuant to
[the Act] . . . . 	The person requesting revocation shall attach to the
motion a transition plan proposed to facilitate the reintegration of the
child into the home of a parent or a new guardian. A transition plan shall
take into consideration the child’s age, development and any bond with
the guardian.
The plain language of the statute is clear and unambiguous; any person may bring a
motion to revoke a kinship guardianship. We make no statement as to the merits of
such a motion on these facts. We hold only that Aunt is a person who may bring such
a motion, and the district court erred when it disallowed her from doing so.
Threatening her with contempt chilled the exercise of her right to approach the court
and, in retrospect, might have been more carefully considered.
CONCLUSION
{14} 	For the reasons outlined above, we affirm the district court’s order dismissing
Aunt’s claim for want of standing but leave open to her any claim she may pursue

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under the Act.
{15} 	IT IS SO ORDERED.
___________________________________
RODERICK T. KENNEDY, Judge
WE CONCUR:
_____________________________
JAMES J. WECHSLER, Judge
_____________________________
CELIA FOY CASTILLO, Judge