Bourgoyne v. Bourgoyne

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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 PATRICIA BOURGOYNE, 3 Petitioner-Appellee, 4 v. NO. 33,916 5 STEPHANIE BOURGOYNE n/k/a 6 STEPHANIE BALDWIN, 7 Respondent-Appellant, 8 and 9 IN THE MATTER OF THE KINSHIP 10 GUARDIANSHIP OF SEAN B. and 11 MICHAEL B. 12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Elizabeth E. Whitefield, District Judge 14 Atkinson & Kelsey, P.A. 15 Tatiana D. Englemann 16 Albuquerque, NM 17 for Appellee 18 Harris Law 19 Don F. Harris 20 Albuquerque, NM 21 for Appellant 1 Laura Cass 2 Albuquerque, NM 3 Guardian Ad Litem 4 MEMORANDUM OPINION 5 VANZI, Judge. 6 {1} Respondent Stephanie Bourgoyne k/n/a Stephanie Baldwin (Appellant) appeals 7 from the district court’s order adopting the guardian ad litem’s (GAL) 8 recommendations and declining to revoke guardianship. This Court’s first calendar 9 notice proposed to affirm the district court. Appellant filed a memorandum in 10 opposition. The children’s guardian, Patricia Bourgoyne (Appellee), filed a 11 memorandum in support of this Court’s proposed disposition. We are not persuaded 12 by Appellant’s arguments and affirm the district court’s order. 13 {2} Appellant continues to argue that the GAL’s report was inadmissible hearsay, 14 and the district court’s reliance on it for its judgment cannot be said to be harmless. 15 [MIO 2] To the extent Appellant argues it was predicated on inadmissible hearsay 16 statements, we disagree. See Thomas v. Thomas, 1999-NMCA-135, ¶ 25, 128 N.M. 17 177, 991 P.2d 7 (recognizing that bases of GAL’s expert opinion on whether child was 18 abused need not be admissible in evidence under Rule 11-703 NMRA and “[t]here is 19 no requirement that the trial court hear direct testimony from individuals, be they 2 1 counselors, teachers, medical professionals, or others, to whom the GAL has spoken 2 in coming to her recommendations”). 3 {3} Insofar as Appellant argues it was also prejudicial, we conclude that any 4 prejudice was outweighed by the highly probative value of the GAL’s opinion in this 5 type of case. The GAL has a duty to investigate the circumstances surrounding the 6 petition for guardianship, visit the child’s home, and interview the guardian and 7 parents. NMSA 1978, § 40-10B-10(A) (2001). The GAL has direct contact with the 8 children and acts as a “‘best interests attorney’ who shall provide independent services 9 to protect the child’s best interests . . . who shall make findings and recommendations” 10 and “fil[e] the recommendations with the court.” Rule 1-053.3(C) & (F)(4) NMRA; 11 see also § 40-10B-10(C) (requiring guardian ad litem to “report to the court 12 concerning the best interests of the child”). We therefore affirm the admission of the 13 GAL report into evidence. See Dewitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 13, 14 146 N.M. 453, 212 P.3d 341 (“With respect to the admission or exclusion of evidence, 15 we generally apply an abuse of discretion standard where the application of an 16 evidentiary rule involves an exercise of discretion or judgment[.]”); Thomas, 17 1999-NMCA-135, ¶ 25 (finding no error in the court’s adoption of the GAL’s 18 recommendation, as it not uncommon since the GAL has direct contact with the 19 children). 3 1 {4} Appellant continues to argue that the district court erred in denying her 2 discovery requests for the children’s medical, therapist, and school records in order 3 to rebut the GAL’s opinion. [MIO 8-9] This Court reasoned that it was not an abuse 4 of discretion because it was unlikely these records contained any information to assist 5 Appellant in showing a change of circumstances. [CN 6] Appellant asserts that she 6 wanted access to all of the records justifying the GAL’s opinion and preventing her 7 from seeing the children. [MIO 8] 8 {5} We conclude that Appellant has not met her burden of showing an abuse of 9 discretion in the district court’s ruling to limit the discovery of these records. See 10 DeTevis v. Aragon, 1986-NMCA-105, ¶ 10, 104 N.M. 793, 727 P.2d 558 (“Although 11 the rules favor allowance of liberal pretrial discovery, the trial court is vested with 12 discretion in determining whether to limit discovery.” (citation omitted)). The district 13 court reasoned that limited releases of the therapist’s records could be signed so that 14 Appellant would be aware of any therapeutic recommendations for the children. [RP 15 218] We cannot say that releasing certain records for this limited purpose was an 16 abuse of discretion. See Reaves v. Bergsrud, 1999-NMCA-075, ¶ 13, 127 N.M. 446, 17 982 P.2d 497 (stating that an abuse of discretion “occurs when the [district] court’s 18 ruling is against the facts, logic, and circumstances of the case or is untenable or 19 unjustified by reason”). Appellant has not shown how the records were demonstrably 20 relevant, in particular, to her burden of showing that her circumstances changed such 4 1 termination of the guardianship was warranted. See id. ¶ 23 (stating that, where the 2 requested information is not demonstrably relevant to the proponent’s claims, a 3 district court does not abuse its discretion in denying discovery); see also Romero v. 4 Bd. of Cnty. Comm’rs, 2011-NMCA-066, ¶ 7, 150 N.M. 59, 257 P.3d 404 (“[W]e can 5 affirm if the district court was correct for any reason that was before it on the basis of 6 the presentations of the parties.”). Therefore, we conclude that Appellant has not 7 shown how she was prejudiced. See Doe v. Roman Catholic Diocese of Boise, Inc., 8 1996-NMCA-057, ¶ 21, 121 N.M. 738, 918 P.2d 17 (stating that the party challenging 9 a limitation on discovery must show an abuse of discretion and prejudice). 10 {6} Appellant continues to assert that there was insufficient evidence to support the 11 district court’s decision. [DS 12, MIO 6, 12] It was Appellant’s burden to prove a 12 change in circumstances and that the revocation was in the children’s best interests. 13 See NMSA 1978, § 40-10B-12(B) (2001). This Court’s first notice proposed to 14 conclude that the GAL’s opinion provided justification for the conclusion that 15 Appellant failed to demonstrate that, in the seven years since the children were placed 16 in the Appellee’s care, there was a change of circumstances, or that the revocation was 17 in the children’s best interests. [CN 6-7] The children had been in Appellee’s care for 18 seven years with little contact or financial assistance from Appellant; Appellant had 19 not demonstrated an ability to parent; Appellant went approximately six (6) years 20 without consistent visits with the children; Appellant started but did not complete 5 1 parenting classes; the children’s therapists had significant concerns about their contact 2 with Appellant; Appellee provided many special services for the children through 3 referrals to specialized providers to meet their emotional and basic needs; and 4 Appellee and the children were very bonded to each other. [RP 147-149] We cannot 5 say it was an abuse of discretion to rule that, based on these factual circumstances, 6 keeping the guardianship in place was in the children’s best interests. See Campbell 7 v. Alpers, 1990-NMCA-037, ¶ 20, 110 N.M. 21, 791 P.2d 472 (recognizing that “in 8 child custody modification proceedings, there is a presumption of reasonableness in 9 favor of the previous custody order, and the burden is on the party seeking a 10 modification to show that there has been a substantial change of circumstances 11 affecting the child’s welfare”). 12 {7} Appellant further argues that the district court did not properly apply the 13 parental preference presumption at the revocation hearing and instead required 14 Appellant to bear the burden of proof throughout the entire proceeding. [MIO 4] See 15 NMSA 1978, § 40-10B-2(A) (2001) (“It is the policy of the state that the interests of 16 children are best served when they are raised by their parents.”). Appellant asserts 17 that, although she bore the initial burden of proof of showing changed circumstances, 18 the statute is silent on which party bears the burden of proof after the parent has 19 demonstrated changed circumstances. [MIO 4-5] We need not address this argument 6 1 because we conclude that Appellant did not meet her initial burden of demonstrating 2 changed circumstances or that revocation was in the best interests of the children. 3 {8} For all of the above reasons and those stated in this Court’s first notice of 4 proposed disposition, we affirm. 5 {9} IT IS SO ORDERED. 6 7 __________________________________ LINDA M. VANZI, Judge 8 WE CONCUR: 9 _________________________________ 10 RODERICK T. KENNEDY, Judge 11 _________________________________ 12 J. MILES HANISEE, Judge 7

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