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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2024-NMCA-053
Filing Date: June 18, 2024
No. A-1-CA-41140
BRITTNEY BARRERAS,
Petitioner-Appellant,
v.
ANGELA ARCHIBEQUE,
Respondent-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Debra Ramirez, District Court Judge
Shelle Legal, LLC
David E. Shelle
Albuquerque, NM
Law Office of Jay R. Mueller
Jay R. Mueller
Albuquerque, NM
for Appellant
Durham, Pittard & Spalding, LLP
Caren I. Friedman
Philip M. Kovnat
Santa Fe, NM
for Appellee
OPINION
WRAY, Judge.
{1} Petitioner Brittney Barreras appeals the district court’s dismissal of her petition to
establish parentage, determine custody and time-sharing, and assess child support (the
Petition) involving a minor child (Child). The district court determined that the New
Mexico Uniform Parentage Act (NMUPA), NMSA 1978, §§ 40-11A-101 to -903 (2009,
as amended through 2021) did not apply, dismissed the Petition, adjudicated that
Petitioner was not a parent of Child, and ruled that Respondent Angela Archibeque,
Child’s biological mother, was Child’s only legal parent. On appeal, Petitioner argues
that (1) parentage must be determined under the NMUPA and the district court erred in
concluding that the NMUPA did not apply; (2) Petitioner successfully established
presumptive parentage of Child under the presumption, referred to as the holding out
presumption, outlined in Section 40-11A-204(A)(5) (requiring a showing that “for the first
two years of the child’s life, [the presumed parent] resided in the same household with
the child and openly held out the child as [their] own”); and (3) Respondent did not
present evidence to rebut Petitioner’s presumption of parentage. Petitioner urges this
Court to reverse the district court and hold that Petitioner is Child’s parent under the
NMUPA. While we agree that reversal is required, under these circumstances, we
remand to the district court to weigh the evidence under the NMUPA.
BACKGROUND
{2} Petitioner and Respondent were in a romantic relationship and cohabitated from
at least July 2019 until September 2021. Respondent gave birth to Child in July 2019.
After the couple broke up and shortly after Petitioner moved out, she filed the Petition
and sought to establish parentage, determine custody, and assess child support.
Petitioner alleged that she had lived with Child for the first two years of Child’s life and
held out Child as her own. Acting pro se, Respondent initially filed a response to the
Petition, followed by a motion to modify custody and time-sharing, and a motion to
dismiss the Petition. Respondent’s motion to dismiss argued that Petitioner should not
be adjudicated a parent of Child, because Respondent had not intended for Petitioner to
parent Child, Petitioner did not contribute financially to the household, their relationship
was not a committed one, and Respondent did not feel safe based on Petitioner’s
contacts with her after their breakup. The district court held an evidentiary hearing on
the motions, which focused on the motion to dismiss. Both parties were represented by
counsel at the hearing and presented testimony to the district court, which acted as fact-finder. See § 40-11A-601 (providing that the rules of civil procedure for the district
courts apply); § 40-11A-632 (“The district court, without a jury, shall adjudicate
[parentage] of a child.”).
{3} The parties submitted post-hearing proposed findings of fact and conclusions of
law. Petitioner argued specifically that the NMUPA applied and that she should be a
presumed parent of Child under Section 40-11A-204(A)(5), because she resided in the
same household with Child for the first two years of Child’s life and openly held Child
out as her own. In the written order, the district court concluded that Petitioner was not a
presumed parent under the NMUPA because the Child was not yet two years old and
otherwise because Respondent intended to be a single parent and the parties did not
agree to coparent, had no exclusive commitment to each other, and did not jointly
contribute to a family home or daily life decisions. We will set forth additional facts in
greater detail as we consider Petitioner’s appeal of the district court’s decision.
DISCUSSION
{4} Resolution of this appeal requires us to interpret the NMUPA, which we review
de novo. See Chatterjee v. King, 2012-NMSC-019, ¶ 11,
280 P.3d 283; see also Hum.
Servs. Dep’t. v. Toney,
2019-NMCA-035, ¶ 8,
444 P.3d 1074 (interpreting the NMUPA
and applying de novo review). To the extent that this appeal implicates issues related to
the district court’s findings of fact, we review those determinations for substantial
evidence. See Vanderlugt v. Vanderlugt,
2018-NMCA-073, ¶ 51,
429 P.3d 1269.
“However, we give no deference to the district court’s conclusions of law.” Chapman v.
Varela,
2009-NMSC-041, ¶ 5,
146 N.M. 680,
213 P.3d 1109. We begin by outlining the
relevant portions of the NMUPA.
{5} The NMUPA contains specific evidentiary and procedural requirements to
adjudicate parentage. The NMUPA “applies to determination of parentage in New
Mexico,” § 40-11A-103(A), which is “the establishment of the parent-child relationship”
by voluntary acknowledgment or judicial adjudication, § 40-11A-102(H). A person who
alleges that parentage is established through one of the presumptions listed in Section
40-11A-204(A) must produce sufficient evidence to raise the presumption and maintains
the burden of persuasion throughout the proceeding. Cf. Chapman, 2009-NMSC-041,
¶ 11 (explaining the operation of presumptions in the context of undue influence); see
also Rule 11-301 NMRA (“[T]he burden of persuasion . . . remains on the party who had
it originally.”); § 40-11A-601 (“The proceeding [to adjudicate parentage] is governed by
the Rules of Civil Procedure for the District Courts.”).
{6} Once a presumption of parentage is established, § 40-11A-201, if the
presumption is contested, the party against whom the presumption is directed then “has
the burden of producing evidence to rebut the presumption,” Rule 11-301; see § 40-
11A-204(B) (requiring that a presumption of parentage be rebutted “only by an
adjudication pursuant to Article 6 of the [NMUPA]”); § 40-11A-631 (“Rules for
adjudication of paternity.”). “An unrebutted presumption of parentage conclusively
establishes the parent-child relationship.” Soon v. Kammann, 2022-NMCA-066, ¶ 12,
521 P.3d 110, cert. granted,
2022-NMCERT-010 (S-1-SC-39544). The holding out
presumption at issue in the present case is set forth in Section 40-11A-204(A)(5), which
permits a presumption of parentage if “for the first two years of the child’s life, [the
presumed parent] resided in the same household with the child and openly held out the
child as [their] own.” The NMUPA does not define the term “held out the child as [their]
own,” see § 40-11A-102 (definitions). 1
{7} The Petition in the present case alleged the holding out presumption using a form
provided by the district court, which includes language that is from a repealed version of
the NMUPA. See NMSA 1978, § 40-11-5(A)(4) (1997) (“A [person] is presumed to be
the natural [parent] of a child if . . . while the child is under the age of majority, [the
person] openly holds out the child as [that person’s] natural child and has established a
personal, financial or custodial relationship with the child.”). Accordingly, Petitioner
alleged that she “openly held out” Child as her daughter and “established a personal,
1Section 40-11A-106 states that the “[p]rovisions of the [NMUPA] relating to determination of paternity
apply to determinations of maternity insofar as possible.” We have therefore, under the circumstances of
this case, elected to set forth the statute neutrally.
financial, or custodial relationship with [C]hild.” In the written order granting
Respondent’s motion to dismiss, as we have noted, the district court found that Child
“[was] under the age of two years old” and concluded that “[t]his case [was] not
governed by the [NMUPA]” and “[t]here is no presumption of parentage under these
facts.” In reaching this conclusion, the district court appears to refer to the holding out
presumption of Section 40-11A-204(A)(5), because, if Child was under two years old,
Petitioner could not have satisfied the two-year requirement. After concluding that the
NMUPA did not apply, the district court found that Petitioner failed to prove that the
parties had (1) “an agreement about co-parenting or that co-parenting had ever become
the status quo between them for the household”; (2) “a stable, exclusive commitment to
one another which preceded the birth of [C]hild or parenthood thereafter”; (3) “the kind
of relationship where each contributed to the household to sustain a family home”; and
(4) “the kind of relationship where decisions were made jointly about careers, bill
payments, or healthcare let alone about a marriage or parenthood.”
{8} As both parties point out in their briefing, the district court’s finding regarding the
Child’s age is clearly erroneous. See Cortez v. Cortez, 2009-NMSC-008, ¶ 12,
145 N.M.
642,
203 P.3d 857 (“Unless clearly erroneous or deficient, findings of the trial court will
be construed so as to uphold a judgment rather than to reverse it.” (text only) (citation
omitted)). The record reflects that when Petitioner filed the Petition, Child was over two
years old: Child was born in July 2019, the Petition was filed in November 2021 and
alleged that Petitioner lived with Child until September 2021. As we have noted, it
seems that the district court’s conclusions that “[t]his case [was] not governed by the
[NMUPA]” and “[t]here is no presumption of parentage under these facts” were based
on Child’s age. Respondent concedes the error but contends that the error is not
reversible. See Rule 1-061 NMRA (harmless error). We agree with Petitioner that the
NMUPA controls the parentage determination in the present case.
{9} It is for the district court in the first instance to determine whether the statutory
presumption of parentage has been established by the evidence presented and whether
Respondent has rebutted the presumption. See § 40-11A-204. The presumption of
parenthood can be rebutted only by admissible results of genetic testing, see § 40-11A-
204(B) (limiting the rebuttal of the presumption of parentage to adjudications pursuant to
Article 6 of the NMUPA); § 40-11A-631(A), but the results of genetic testing are only
admissible if the test is performed with the consent of both parties or by a court order,
see § 40-11A-621(C). A party can move to compel genetic testing, but the district court
may deny such a motion under certain circumstances “if the district court determines by
clear and convincing evidence that (1) the conduct of the mother or the presumed
parent estops that party from denying parentage; and (2) it would be inequitable to
disprove the presumed parent’s relationship with the child.” Soon, 2022-NMCA-066,
¶ 20 (citing § 40-11A-608(A), (D)). Section 40-11A-608(B) further dictates that when
determining whether to deny a motion for genetic testing, the district court “shall
consider the best interest of the child,” as well as nine additional factors. If the district
court considers these factors and denies the motion for genetic testing, the presumption
of parenthood controls. See § 40-11A-608(E). If the motion for genetic testing is
granted, however, “[t]he NMUPA sets forth the general rule that a person excluded as
the parent by genetic testing would normally be adjudicated not to be the parent of the
child.” Soon,
2022-NMCA-066, ¶ 20 (citing § 40-11-A-631(D)).
{10} We recognize that this statutory procedure is both an opportunity and a burden.
The risk exists that people without a real interest in the care of a child may vindictively
assert parentage, just as the risk exists that biological parents may attempt to thwart the
statutory process for establishing parentage by opposing a genuine parent or
demanding parenthood from an unaffiliated person. Justice Bosson noted the potential
for this mischief in the Chatterjee concurrence. See 2012-NMSC-019, ¶¶ 57-59
(Bosson, J., specially concurring). The risk also exists that those with the fewest
resources, the least societal power, and the most to lose will have to come to court to
defend the makeup of their families. We tolerate these risks because “the child’s best
interests are served when intending parents physically, emotionally, and financially
support the child from the time the child comes into their lives,” and there is “no reason
for children to be penalized because of the decisions that their parents make, legal or
otherwise.” Id. ¶¶ 33, 37. It is to protect the rights of children that our courts and the
adult parties must abide by the statutory guidelines that are designed to ensure that
“every child should be treated equally, regardless of the marital status of the child’s
parents.” Id. ¶ 33.
{11} Despite the fact-intensive nature of the presumption and rebuttal inquiries,
Respondent encourages this Court to affirm the district court’s order based on
arguments that the error regarding Child’s age did not affect the outcome of the case,
the district court ruled on grounds unrelated to Child’s age, and the parties’ rights were
adequately protected during the proceedings. We view this argument to be that the
district court was right for any reason. “We are a court of review and our function is to
see if legal error that would change the result occurred.” In Re Elizabeth A., 2024-
NMCA-017, ¶ 23, 542 P.3d 793 (text only) (citation omitted), cert. denied (S-1-SC-
40174, Jan. 21, 2024). As a proper exercise of our authority, “we will uphold a district
court’s decision if it is right for any reason so long as (1) reliance on the new ground
would not be unfair to the appellant; (2) doing so does not require us to assume the role
of the district court by delving into fact-dependent inquiries; and (3) there is substantial
evidence to support the ground on which we rely.” Id. ¶ 24 (text only) (citation omitted).
According to Respondent, the error was harmless because “remand for a finding that
Child was actually two” would be “futile” and “a waste of judicial resources,” as the error
concerning Child’s age “did not affect the substantial rights of the parties.” See Rule 1-
061. Under these circumstances, as we explain, we disagree and conclude that to
decide the matter on appeal would require us to delve into fact-dependent inquiries,
which is the role of the district court.
{12} The purpose of remand in the present case is greater than to simply correct the
finding about Child’s age. The error regarding Child’s age resulted in a determination
that the NMUPA did not apply. Resolution of this appeal would require us to weigh the
evidence presented to determine whether Petitioner established sufficient evidence for
the presumption and whether Respondent rebutted any presumption established. See
Freeman v. Fairchild, 2018-NMSC-023, ¶ 35,
416 P.3d 264 (concluding that the case
was not well-suited to the application of the right for any reason doctrine because in part
“[t]he appellate court would need to undertake a fact-dependent inquiry to accurately
determine whether [a party] made a sufficient prima facie showing under [particular]
law”). At the evidentiary hearing, Petitioner presented evidence and testified about facts
relevant to establishing the requirements of the holding out presumption of Section 40-
11A-204(A)(5). Similarly, Petitioner’s proposed findings of fact and conclusions of law
were based on the application of the holding out presumption. Respondent responded
to Petitioner’s allegations regarding the NMUPA and also separately focused on
constitutional issues involving consent and other considerations. The district court did
not apply the NMUPA and focused on Respondent’s ongoing intent to parent alone.
Because the district court did not apply the NMUPA, no findings were made about the
holding out presumption or rebuttal of that presumption, according to the provisions of
the NMUPA that we have outlined herein. See Soon,
2022-NMCA-066, ¶¶ 20-21. We
make no determination about any outcome on remand. The weight of the evidence
relating to the holding out presumption and any rebuttal evidence must be resolved by
the district court sitting as fact-finder. See Chapman,
2009-NMSC-041, ¶ 11 (observing
that the district court’s decision in a civil nonjury trial is reached by weighing the
evidence). Thus remand is neither a futile exercise nor a waste of judicial resources,
and we would be required to assume the district court’s fact-finding role to resolve the
matter as it was raised by the parties under the NMUPA. See § 40-11A-204; Soon,
2022-NMCA-066, ¶¶ 20-21.
{13} Respondent additionally contends, for the first time on appeal, that Petitioner
lacked standing to seek an adjudication of parentage. Our Supreme Court in Chatterjee,
however, held that under the prior version of the NMUPA, a party has standing when
“allegations satisfy the hold out provision of” Section 40-11-5(A)(4) (1997). Chatterjee,
2012-NMSC-019, ¶ 48. The current statute similarly states that “a proceeding to
adjudicate parentage may be maintained by . . . a [person] whose [parentage] of the
child is to be adjudicated.” Section 40-11A-602(C). In the present case, Petitioner filled
out a court-provided form 2 titled, “Petition To Establish Parentage, Determine Custody
and Time-Sharing and Assess Child Support,” which provided boxes to check in order
to establish various bases for the allegation of parentage, including by the holding out
presumption. The Petition alleged that Child was born on July 3, 2019, and Petitioner
filled in the time that she lived with Child, which added up to more than two years—from
July 3, 2019 through September 20, 2021—and which corresponds with the first two
years of Child’s life. By these allegations, sparse though they are, Petitioner alleged that
parentage was based on the requirements of the holding out provision of Section 40-
11A-204(A)(5).
{14} Respondent further maintains that Petitioner’s standing is impacted by
Respondent’s constitutional right, established in Troxel v. Granville, 530 U.S. 57, 66
(2000), “to make decisions about the care, custody, and control of . . . Child,” and thus
required Respondent’s consent for Petitioner to become Child’s parent. In the present
case, however, Petitioner did not seek as a third-party to interfere with Respondent’s
2This form can be found at https://seconddistrict.nmcourts.gov/wpcontent/uploads/sites/21/2023/11/06PCP_PetitionToEstablishParentage.pdf.
right to make decisions about the care, custody, and control of Child. See
id. at 75
(holding that the application of a state statute, which allowed any person to petition for
visitation rights if in the best interest of the child, violated a nonconsenting parent’s “due
process right to make decisions concerning the care, custody, and control” of their
children). Petitioner instead sought to adjudicate her statutory right to be Child’s parent.
See § 40-11A-602 (identifying individuals with standing to request adjudication of
parentage). The facts that Respondent alleges to demonstrate that she did not consent
to Petitioner being a parent are among those that are relevant to whether a motion for
genetic testing should be granted or denied, see § 40-11A-608(A), (B), but we cannot
conclude that Petitioner, who alleged facts to establish the holding out presumption, did
not have standing to seek an adjudication of parentage.
CONCLUSION
{15} Based on the foregoing, we reverse the district court and remand for further
proceedings consistent with this opinion. Respondent requests that in the event of
remand, we “order the district court to appoint a guardian ad litem for Child to advocate
for her best interests and to ensure her safety.” Petitioner does not oppose the
appointment of a guardian on remand. Because of the nature of the proceeding to
adjudicate parentage and Respondent’s concerns for Child’s safety, on remand, we
further direct the district court to determine whether the appointment of a guardian ad
litem is necessary to protect Child’s interests. See § 40-11A-612(B) (“The district court
shall appoint a guardian ad litem to represent a minor or incapacitated child if the child
is a party or the district court finds that the interests of the child are not adequately
represented.”); see also Toney, 2019-NMCA-035, ¶ 24 (“[I]n every proceeding in which
minor children are involved, a court’s primary obligation is to further the best interests of
the child.” (internal quotation marks and citation omitted)).
{16} IT IS SO ORDERED.
KATHERINE A. WRAY, Judge
WE CONCUR:
ZACHARY A. IVES, Judge
SHAMMARA H. HENDERSON, Judge
