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Personal Injury Lawyer Robert (Tito) Meyer, Las Cruces New Mexico
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Can A Father Who Had Abandoned His Child Collect Damages When His Child Is Killed In An Accident?
A few years ago
there was a terrible accident near Carlsbad. A family was camping on the Pecos River near a natural gas pipeline. While the people were sleeping, there was a huge explosion and fire when
the pipe burst. The campers were horribly burned and some died.
One of the campers was five-year-old Kirsten Janay Sumler. She was severely burned and died within hours of the
explosion. Her mother, Amanda Sumler Smith, also was severely burned. She survived Kirsten's death but thereafter died of her own injuries.
Paul E. Dawson, Kirsten's natural
father, was never married to Kirsten's mother, and he was not involved in the accident. In a previous child support action, he had acknowledged that Kirsten is his child.
Under New
Mexico's Wrongful Death law, the surviving parents of a deceased minor child are entitled to recover damages for the wrongful death of the child [NMSA 1978 Section 41-2-3].
Kirsten's
mother's half-brother and mother-in-law went to court and attempted to recover 100% of the damages for Kirsten's death, arguing that mother survived Kirsten (briefly), and so mother's
share goes to her family. They also argued that Kirsten's father should not receive any of the damages for Kirsten's death Abecause he did not involve himself in Kirsten's upbringing
and because he did not pay court-ordered child support after he was determined to be the biological father of Kirsten.
Kirsten's father argued he should get !00% of the damages because
Kirsten's mother no longer survived Kirsten and because he had not abandoned Kirsten.
The New Mexico Court Of Appeals recently ruled that mother's family gets half the damages for
Kirsten's wrongful death and father gets half. Because mother survived Kirsten at the time of Kirsten's death, mother was entitled to half, and her half is inherited by her heirs.
More interesting is the Court's ruling about whether Kirsten's father gets any of the money: In Dominguez v. Rogers, we observed that "[p]roof of natural-parent status is
not necessarily sufficient for recovery under the wrongful death statute." 100 N.M. 605, 609, 673 P.2d 1338, 1342 (Ct. App. 1983). We expressed our distaste for self-interested
individuals who choose "to assert a parental status only when it becomes financially profitable . . . following the death of a small child." 100 N.M. at 609, 673 P.2d at1342. We
recognized that the public policy of New Mexico, as expressed in NMSA 1978, ' 45-2-109 (1975, 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.
The Court looked to the numbered Findings Of Fact as determined by the trial court in Kirsten's probate:
8. After the paternity suit, [Father] openly acknowledge[d] his daughter Kirsten;
however, Amanda Sumler Smith denied and prohibited [Father] to see, visit or establish any type of relationship with his daughter.
9.[Father] did contribute to Kirsten's support through efforts of the Child Support Enforcement Offices for the State of New Mexico.
17.[Father] had demonstrated his willingness to accept
loving responsibility for his natural born children by taking sole custody of his two children born in 1996 and 1997 by a subsequently dissolved marriage.
18.[Father] would have given the same
love, care and support to Kirsten if he had not been thwarted by the natural mother, Amanda Sumler Smith.
24. The many shortcomings of [Father], as testified to concerning his relationship
with his deceased daughter, Kirsten, was explained to the Court by the efforts of those involved to undermine the establishment of any such relationship.
Based on these facts, the Court Of
Appeal agreed with the probate court that the father had not disqualified himself from receiving his share of the damages because of his daughter's wrongful death: 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, and to materially distinguish this case from
Dominguez.
So, the answer to the question in the title of this column is: a father who had abandoned his child probably cannot collect damages for the wrongful death of his child, unless
father's lack of involvement in the child's life was because the mother >thwarted' father's efforts to help the child.
This decision is In The Matter Of The Estate Of Kirsten Janay Sumler, 2003-NMCA-030.
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The information contained in this site is not, nor is it intended to be, legal advice.
You should consult an attorney for individual advice regarding your own situation.
Copyright © 2008 by Robert (Tito) Meyer, Personal Injury Lawyer, Las Cruces NM. All rights reserved.
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