Huddleston Case: Strict Constructionism Down the Tubes
Erik L. Smith
In re Petition of Antonio R., 2007 N.M. LEXIS 694 (N.M. 2007).
The mother surrendered the child for adoption three days after the birth. The prospective adoptive parents petitioned to adopt two months later. Testimony was disputed as to whether the father had known of the pregnancy. But the father undisputedly did not try to provide the mother with financial support before the adoption petition. Upon receiving notice of the petition from the adoption agency, the father filed in the New Mexico putative father registry, moved to establish paternity in the adoption proceeding, and requested a visitation order. The trial court found that the father should have known of the pregnancy, did not file timely in the PFR, and that his consent was unnecessary because he did not timely initiate a paternity action. The trial court also found that the father abandoned the child by not providing financial support during the pregnancy.
The Appellate Court reversed the abandonment ruling, reasoning that the law did not make pre-birth conduct part of the abandonment analysis. The Appellate Court held further that the father timely initiated a paternity action because the acknowledged father statute specified no deadline for doing so and the father moved to establish paternity before the adoption hearing.1In re Romero, 2006-NMCA-136 (N.M. Ct App. 2006), ¶19. Moreover, the pertinent statute imposed time restrictions only on some of the alternatives for establishing acknowledged fatherhood.2Sec. 32A-5-3(F)(1-7). Thus, the legislature intended no time limit for initiating a paternity action.3In re Romero, ¶20.
A biological father's consent to adoption was needed where he qualified as an "acknowledged" father. A man could qualify as an acknowledged father of a child placed before six months of age by having initiated an action to establish paternity. N.M.S.A. sec. 32A-5-3(F)(4)(a)(1). (See statutes quoted in the Appendix after this commentary.)
The Supreme Court reversed the Appellate Court, reasoning that, despite no stated deadline for initiating a paternity action, the adoption act as a whole showed an intent to limit the time for bringing a paternity action to before the placement or adoption petition, as the deadlines for other actions under the act were similar and the statute was written consistently in the past tense. The statute's wording also showed a legislative intent to require the paternity action be brought in a separate civil action, not by motion in an adoption proceeding. The father did not timely seek acknowledged father status where, despite having reason to know of the pregnancy, he did not try to establish paternity until after getting notice of the adoption petition. Thus, the father's consent to adoption was not needed.4In re Petition of Antonio R., 2007 N.M. LEXIS 694 (N.M. 2007), ¶51. The abandonment question was moot.