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In re Estate of Sumler12/19/2002
, as amended 1976), disfavors natural parents who do not acknowledge their responsibilities to their children. Dominguez, 106 N.M. at 609, 673 P.2d at 1342. We held open the possibility that a personal representative in a wrongful death action might be permitted to seek termination of a father's parental rights where there was evidence of non-support and abandonment. 106 N.M. at 609, 673 P.2d at 1342.
We do not retreat from the sentiments expressed in Dominguez. However, in Dominguez, we noted the complete absence of any evidence that the natural father had acknowledged paternity at any time before the child's death. Here, in contrast, we have binding findings that Father openly acknowledged that he was Kirsten's father and had attempted to establish a parent-child relationship with Kirsten prior to her death, but was "thwarted" by the actions of Mother. These findings are sufficient to overcome any presumption of abandonment, see In re Adoption of J.J.B., 119 N.M. 638, 648-50, 894 P.2d 994, 1004-06 (1995), and to materially distinguish this case from Dominguez.
Appellants argue that Father's interest in the recovery for Kirsten's death is precluded by NMSA 1978, § 45-2-114(C) (1993), which provides that " nheritance from or through a child by either natural parent or his kindred is precluded unless that natural parent has openly treated the child as his and has not refused to support the child." As we have explained above, the substantive standards of the Probate Code do not apply to wrongful death actions. Section 45-2-114(C) has no effect on Father's entitlement to wrongful death benefits. See Aranda v. Camacho, 1997-NMCA-010, 122 N.M. 763, 931 P.2d 757 (holding that NMSA 1978, § 45-2-803(B) (1995) does not affect spouse's entitlement to wrongful death benefits).
We affirm the Judgment appointing Father as personal representative of Kirsten's estate. We reverse the district court's determination that Father is the sole Section 41-2-3 beneficiary of the action for Kirsten's wrongful death. We affirm the district court's determination that Father has not been divested of his interest in any recovery for Kirsten's wrongful death.
IT IS SO ORDERED.
A. JOSEPH ALARID, Judge
WE CONCUR:
RICHARD C. BOSSON, Chief Judge
CELIA FOY CASTILLO, Judge
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