source: Caselaw Access Project

author: VIGIL, Judge.

license: Public Domain

text:
    Maria CUMMINGS, Individually and as Personal Representative of the Estate of Shaun Michael Chavez; Jana Vallejos, Individually and as Personal Representative of the Estate of Donovan Vallejos; and Leon Salazar, Individually, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellants, v. BOARD OF REGENTS OF the UNIVERSITY OF NEW MEXICO, a Body Corporate of the State of New Mexico, for Itself and Its Public Operations, Including University of New Mexico Health Sciences Center, and Its Components, The University of New Mexico Hospital, and University of New Mexico School of Medicine, Defendants-Appellees.
    No. A-1-CA-35800
    Court of Appeals of New Mexico.
    Filing Date: December 28, 2018 Certiorari Denied, April 11, 2019, S-1-SC-37549 Released for Publication July 23, 2019
    Vigil Law Firm, P.A., Jacob G. Vigil, Albuquerque, NM, Freedman Boyd Hollander Goldberg Urias & Ward, P.A., Joseph Goldberg, Frank T. Davis, Albuquerque, NM, for Appellants
    Rodey, Dickason, Sloan, Akin & Robb, P.A., Edward Ricco, Leslie McCarthy Apodaca, Andrew G. Schultz, Nelson Franse, Albuquerque, NM, Walz & Associates, Jerry Walz, Albuquerque, NM, for Appellees
   VIGIL, Judge.

{1} Plaintiffs, Maria Cummings, individually and as personal representative of the estate of her son Shaun Michael Chavez, brought a class action complaint for medical and other negligence against Defendants (UNMH) resulting from treatment provided to pediatric cancer patients at UNMH. Plaintiffs appeal from an order of the district court dismissing their claims on grounds that UNMH did not receive notice of Plaintiffs' claims as required by the Tort Claims Act (TCA), NMSA 1978, Section 41-4-16 (1977). We conclude that Plaintiffs provided UNMH with written notice of their claims in compliance with the TCA and reverse. Because we reverse on this basis, we do not address Plaintiffs' remaining arguments.

BACKGROUND

I. The UNMH Investigation of Its Pediatric Oncology Program

{2} In 1987, after a review of UNMH's pediatric cancer program conducted by physicians from the Dana-Farber Cancer Institute and Harvard Medical School, UNMH received a letter stating that UNMH was not employing standard protocols in treating its pediatric cancer patients and "[s]trongly encourage[d] that all children with cancer be treated on protocols if at all possible." On March 3, 1997, Dr. Jami Frost, a physician in the pediatric cancer program at UNMH, wrote a letter to the Chair of the Department of Pediatrics, Dr. John Johnson, expressing concern about UNMH's treatment of pediatric cancer patients. The letter states:

Dr. Winter and I have identified several of our patients who are presently receiving non-standard treatment for their high risk ALL. This treatment, known as LSA2L2, was standard therapy for children in the 1970s. Since that time, several research trials have proven that this treatment is not as effective in providing long-term disease-free survival for children with high risk leukemia.... It appears that children treated at UNM Pediatric Oncology Program have been treated on this same protocol for many years, without any changes made in regard to availability of more effective therapy.
I have contacted two nationally recognized experts in the treatment of childhood leukemia.... Both of these consultants agree that this treatment is substandard. Both agreed that it is not medically ethical to continue these patients on this protocol[.]

{3} On May 13, 1997, Dr. Frost followed up with a memorandum addressed to Dr. Johnson and other UNMH administrators, including the Dean of the University of New Mexico Medical School, Paul Roth, discussing the findings of her investigation into the treatment of pediatric cancer patients at UNMH between approximately 1980-1997. Dr. Frost's memorandum indicated that the survival rate for these patients was "well below published national rates." Dr. Frost's memorandum was accompanied by a list of 217 pediatric cancer patients whose treatment was reviewed and who were currently receiving treatment, with an acknowledgment that the list may not be exhaustive of all pediatric cancer patients treated at UNMH between 1980 and 1997. Shaun is not on the list.

{4} In response to Dr. Frost's letter and memorandum, UNMH began an internal investigation into the treatment of pediatric cancer patients by Dr. Marilyn Duncan, M.D. for acute lymphoblastic leukemia (ALL). On April 9, 1998, UNMH notified at least two of its patient health insurance carriers that Dr. Duncan had been placed on extended leave and was no longer seeing patients while UNMH conducted an investigation into her treatment of pediatric cancer patients, which "apparently was not a treatment recommended by national pediatric oncology clinical trials groups." UNMH emphasized that "we are sending you this notice, because you need to be aware of [Dr. Duncan's] status in the event that [you] receive[ ] calls regarding her.... [UNMH] is presently conducting a comprehensive investigation of this matter and is attempting to determine its implications for both our patients and our institution."

{5} Dr. Cristina Beato, the Assistant or Associate Dean of UNMH, stated that as part of UNMH's investigation, she "instructed employees of UNMH to call certain patients treated for ALL by Dr. Duncan, as well as families of patients so treated, and inform them that they or their children may not have received the recommended treatment for their ALL." Ms. Cummings was not contacted.

{6} In making these calls, Dr. Beato instructed the callers to "complete a 'telephone work sheet' " or script. These scripts are marked "ATTORNEY-CLIENT PRIVILEGED[.]" One script dated March 29, 1998, titled "Child has died script[,]" prompts the caller to say "[w]e are contacting families of children treated for leukemia here, because it now appears that at least some of the children did not receive all of the treatment that was recommended at the time the children were being seen." The script includes "possible appropriate answers" to patients' families concerning the physician who treated their child, which are limited to "I'm sorry I don't have any first-hand knowledge about that" and "I'm not in administration and I just don't have any first-hand information about that." The script also contains a section titled "WHAT NOT TO TALK ABOUT[.]" The points under this heading direct:

1. Do not volunteer anything about who was prescribing or supervising the treatment.
2. Don't get into the specifics of which protocols were or were not followed.
3. Don't make any statements about what effect the problems may or may not have caused in the treatment of children-there are too many variables of treatment to even attempt this fairly at this point.
4. Don't say anything about how the problem was uncovered-you have no first-hand information about that, and that the matter is under internal investigation and [is] the subject of a personnel action.

{7} Similarly, another script titled "Script 2b-Child who was in remission, but has suffered a relapse and is currently in treatment" states that "[t]he physician who made the decisions on how to treat pediatric oncology patients at UNM for many years and who was responsible for selecting the treatment to be provided to your child, is now on extended leave and is no longer seeing patients. However, we have learned that this physician did not select treatment for your child that was the treatment recommended at that time by a national clinical trials group supported by the National Cancer Institute [called the Pediatric Oncology Group (POG) ]." The script goes on to state:

UNM is in the process of investigating why your child and certain others with ALL did not receive the treatment recommended by POG. In August 1996, two new pediatric oncologists ... joined our staff. As they became more familiar with the treatments that had been provided in the past, they, along with nurses, pharmacists and social workers of the pediatric oncology team, began to raise concerns about therapy choices for children with ALL, which led us to reexamine the treatment given to your child.
Although the physician who chose the treatment for your child did not select the POG-recommended treatment, even though that physician was a member of POG and very knowledgeable about its recommended treatment protocols, the physician apparently believed the treatment being prescribed for your child would be equally effective. We do not know if that treatment was equally effective for your child.

II. The Litigation Against UNMH

{8} On February 27, 2001, the estate of Steven Lawrence Lovato filed a class action complaint against UNMH, which we refer to as the Lovato class action, grounded on the alleged negligence of Dr. Duncan in her evaluation, care, and treatment of pediatric cancer patients at UNMH. On June 1, 2001, a second class action complaint was filed by the estate of Christopher Joseph Sedillo against UNMH, which we refer to as the Sedillo class action. The Sedillo class action was grounded on the same alleged negligence of Dr. Duncan.

{9} On December 3, 2001, the Lovato class action plaintiffs filed a motion to allow Plaintiffs to be joined as plaintiffs and additional class representatives. The moving papers assert that the named plaintiff in the Lovato class action and Shaun were both pediatric leukemia patients of Dr. Duncan and members of the putative class. The motion was granted. For reasons not pertinent to the appeal, the Lovato plaintiffs were later dismissed from the Lovato class action, and the caption was amended to reflect that Plaintiffs were henceforth the plaintiffs in the Lovato class action. The operative complaint in this appeal is the third amended Lovato class action complaint in which Plaintiffs are named as plaintiffs and class representatives.

{10} UNMH subsequently filed a motion to dismiss Plaintiffs' complaint, alleging that Plaintiffs failed to provide notice of their claims as required by the TCA. After Plaintiffs responded, the district court granted the motion to dismiss on the basis that Plaintiffs are "unable to establish that UNM[H] was ever given timely notice by Plaintiff Cummings, on her own behalf or on behalf of Shaun Cummings, that there was a likelihood of litigation stemming from the pediatric oncology facility's conduct." Plaintiffs filed a motion to reconsider, which the district court denied. In denying the motion to reconsider, the district court explained its reasoning was that "regardless of when the time period for purposes of [TCA] notice began to run," Plaintiffs "failed to establish that UNM[H] was ever provided appropriate notice."

{11} Initially, we observe that the district court used an incorrect standard in granting UNMH's motion to dismiss. The burden was not on Plaintiffs to prove proper notice under the TCA-it was UNMH's burden to prove inadequate notice. Dutton v. McKinley Cty. Bd. of Comm'rs , 1991-NMCA-130, ¶ 7, 113 N.M. 51, 822 P.2d 1134 ("[U]nder the [TCA] defendants have the burden of proving that the notice requirement was not met."). Plaintiffs appeal.

III. Facts Relating to Notice

{12} Shaun was born on January 1, 1978. He was diagnosed with ALL when he was eighteen months old, and was treated at UNMH by Dr. Duncan. In 1980, Shaun moved with his family to Cleveland, Ohio for about six months while Shaun's ALL was in remission, and then returned to New Mexico, where he relapsed. Shaun continued treatment at UNMH, where he was placed on a LSA2L2 chemotherapy regimen in December 1981. Shaun passed away on September 29, 1983, from complications of ALL.

{13} In early January 2001, Ms. Cummings retained counsel to represent her in a potential case against UNMH relating to Shaun's care and treatment. When she met with counsel, Ms. Cummings did not know what treatment protocols Shaun had received at UNMH. At no time, while Shaun was being treated at UNMH, or after he passed away, did UNMH notify Ms. Cummings that it had not followed nationally recognized, proper treatment protocols when treating Shaun for ALL.

{14} On February 22, 2001, counsel requested a complete copy of Shawn's medical records from UNMH. When the medical records were produced, they revealed that Shaun was treated with a LSA2L2 protocol which, Ms. Cummings declared in an affidavit, "was the subject of a class action case brought against UNMH by the Sedillo family," and "was the first time I learned that Shaun did not receive the proper ALL treatment at UNMH."

{15} Shortly after receiving Shaun's medical records, Ms. Cummings signed an affidavit under the caption of the Sedillo class action on July 24, 2001, which was filed in the Lovato class action on July 26, 2001. The affidavit was filed in support of a motion to consolidate the Sedillo class action into the Lovato class action. We refer to this affidavit as the "notice affidavit" which we discuss in greater detail below. The motion to consolidate was denied, but has no bearing on our analysis.

DISCUSSION

{16} To maintain a claim of damages against a governmental agency, the TCA requires that the agency have notice of the claim. See Section 41-4-16. Among the ways in which the notice requirement may be satisfied is by "written notice" that is presented "to the risk management division for claims against the state" which stated "the time, place and circumstances of the loss or injury." Whether the district court properly dismissed Plaintiffs' claims for failing to comply with the TCA's notice requirement presents an issue of law, which we review de novo. See Herald v. Bd. of Regents of Univ. of N.M. , 2015-NMCA-104, ¶¶ 21, 48-51, 357 P.3d 438 (applying de novo review to order dismissing TCA claims for failing to comply with TCA notice requirement); Smith v. State ex rel. N.M. Dep't of Parks & Recreation , 1987-NMCA-111, ¶ 15, 106 N.M. 368, 743 P.2d 124 ("[W]hether written notice is sufficient is a question for the court."). We discuss whether UNMH received written notice as required by the TCA, then address whether that notice was timely.

IV. Sufficiency of the Written Notice

{17} In the notice affidavit, Ms. Cummings states: Shaun was diagnosed with ALL when he was one and one-half years old; he was diagnosed and treated at UNMH on the LSA2L2 regimen; it was Dr. Duncan who treated him; and Shaun died on September 29, 1983. Ms. Cummings further states in the notice affidavit that she and Shaun's estate are members of the Lovato and Sedillo class actions, "and as such, have an interest and are parties to the lawsuits."

{18} When the notice affidavit was filed in July 2001, the pending Lovato and Sedillo class action complaints included allegations that Dr. Duncan was negligent in her evaluation, consultation, care, and treatment of children suffering from cancer from the time she commenced working at UNMH until she stopped practicing at UNMH; that Dr. Duncan's negligence resulted in the children suffering injuries and death as well as damages to the parents of the children; that UNMH was vicariously liable for Dr. Duncan's negligence, as well as liable for its own negligence. Ms. Cummings individually, and as representative of Shaun's estate, clearly falls within the class described in the Lovato class action complaint which is described as including "parents or other affected family members of a Duncan/UNMH patient" as well as:

Any person who was seen by or whose medical care involved Dr. Marilyn Duncan for the purpose of evaluation, consultation, treatment and/or care for a medical condition involving any form of childhood cancer from the first year she practiced medicine, or was employed and/or had privileges to practice medicine at UNMH as a physician specializing in the evaluation, consultation, care and treatment of children suffering from cancer until the time she ceased to practice medicine at UNMH.

Shaun's estate is also included within the class described in the Sedillo class action as including:

All patients diagnosed with ALL or AML [acute myleoblastic leukemia ] who Marilyn Duncan/UNMHSC actually treated with chemotherapy for purposes of notice only.

{19} Counsel for UNMH, which Plaintiffs describe as "UNM's (and its risk management's) litigation attorney," both accepted service of the Lovato class action complaint and was served with the notice affidavit in the Lovato class action.

{20} The Lovato class action complaint, filed on February 27, 2001, clearly provided UNMH with notice of claims against it arising from allegations of fact that Dr. Duncan was negligent in evaluating, consulting, care, and treating all of her pediatric cancer patients during the entire time she was employed by UNMH, and that the survival rate of pediatric cancer patients of Dr. Duncan between 1981 and 1983 is well below published national rates. The Lovato class action complaint also gave UNMH notice of claims against it for its own alleged negligence. No allegations have ever been made that UNMH was unable to investigate the claims made in the original Lovato class action complaint, and in fact, the record demonstrates that UNMH conducted a thorough investigation before the Lovato class action complaint was filed and concluded that Dr. Duncan's treatment of her pediatric cancer patients "apparently was not a treatment recommended by national pediatric oncology clinical trial groups." These facts demonstrate that UNMH was aware of the time, place, and circumstances of Dr. Duncan's and its own alleged negligence, together with the fact that it was in fact sued for the alleged negligence.

{21} The purpose of the TCA notice requirement "is to ensure that the agency allegedly at fault is notified that it may be subject to a lawsuit" and to "reasonably alert the agency to the necessity of investigating the merits of the potential claim against it." Herald , 2015-NMCA-104, ¶ 50, 357 P.3d 438 (alteration, internal quotation marks, and citations omitted). The notice affidavit gave UNMH notice that Plaintiffs actually intended to make claims against UNMH for their losses and injuries allegedly caused by the negligence alleged in the Lovato and Sedillo class action complaints. As Plaintiffs point out, the notice affidavit identifies Ms. Cummings and Shaun's estate by name; it states that Shaun was diagnosed and treated by Dr. Duncan at UNMH; that Shaun died on September 29, 1983; and that Ms. Cummings considers herself and Shaun's estate to be members of the classes in the Lovato and Sedillo class actions. In addition, when the notice affidavit was filed, UNMH had already conducted investigations into the alleged negligence of Dr. Duncan, and notified at least two of its patient health insurance carriers of the investigations. Under the circumstances, we fail to see how UNMH can seriously argue that it was not given "written notice stating the time, place and circumstances of the loss or injury" suffered by Ms. Cummings and Shaun's estate. See Section 40-4-16(A). All of the reasons for giving written notice under the TCA were satisfied.

{22} For the foregoing reasons, we conclude that UNMH was given written notice of the time, place and circumstances of the alleged loss or injury suffered by Plaintiffs as required by Section 41-4-16(A) of the TCA. We note that UNMH does not argue that delivery of the notice affidavit to UNMH's attorneys fails to satisfy the TCA under the circumstances. See Martinez v. City of Clovis , 1980-NMCA-078, ¶ 18, 95 N.M. 654, 625 P.2d 583 (applying common rules of agency to conclude that proper notice was given arising from negotiations between the plaintiff's attorneys and the agency's insurer). Moreover, there is no material distinction between giving notice through an affidavit attached to a pleading and sending a letter with the same affidavit attached. The only remaining question is whether the notice was timely, and we now turn our attention to that question.

V. Timeliness of the Notice

{23} Section 41-4-16(C) of the TCA provides that in a claim for wrongful death, "the required notice may be presented by, or on behalf of, the personal representative of the deceased person ... within six months after the date of the occurrence of the injury which resulted in the death." The notice requirement under the TCA "accrues when the plaintiff knows or should know the relevant facts, whether or not the plaintiff also knows that these facts are enough to establish a legal cause of action" Maestas v. Zager , 2007-NMSC-003, ¶¶ 20-21, 141 N.M. 154, 152 P.3d 141.

{24} Under Maestas , we conclude UNMH received timely notice. The undisputed facts show that Shaun's death on September 29, 1983, followed his receipt of a LSA2L2 chemotherapy regimen. Ms. Cummings did not discover the facts relevant to her claim against UNMH until she retained counsel to investigate her potential wrongful death claim against UNMH arising from the hospital's treatment of Shaun and received Shaun's full medical records, which occurred, at the very earliest, on the same day Ms. Cummings' counsel requested Shaun's full medical records from UNMH on February 22, 2001. This conclusion is supported by the affidavit filed by Ms. Cummings in response to UNMH's motion to dismiss, in which she stated that at no time during Shaun's treatment did UNMH inform her that it did not follow nationally recognized standard protocols for treatment of ALL; at no time between when Shaun passed away in September, 1983 to the present has UNMH notified her that it failed to follow nationally recognized protocols for ALL in treating Shaun; and that no one from UNM ever called, wrote, or otherwise contacted her about Shaun's treatment at UNMH. Five months and five days passed between February 22, 2001, and the date on which Cummings filed the notice affidavit-on July 26, 2001. Therefore, by the time the six-month period for giving UNMH notice under the TCA expired on August, 22, 2001, the hospital had already received notice of Plaintiffs' claims.

CONCLUSION

{25} The order dismissing Plaintiffs' claims and entering judgment in favor of UNMH on grounds that notice of Plaintiffs' was not provided to UNMH as required by the TCA is reversed.

{26} IT IS SO ORDERED.

WE CONCUR:

J. MILES HANISEE, Judge

JULIE J. VARGAS, Judge


author: ATTREP, Judge.

text:
    STATE of New Mexico, Plaintiff-Appellee, v. David GONZALES, Defendant-Appellant.
    No. A-1-CA-35208
    Court of Appeals of New Mexico.
    Filing Date: May 2, 2019 Certiorari Denied, July 1, 2019, S-1-SC-37707 Released for Publication July 23, 2019
    Hector H. Balderas, Attorney General, Maha Khoury, Assistant Attorney General, Santa Fe, NM, for Appellee
    Bennett J. Baur, Chief Public Defender, C. David Henderson, Appellate Defender, Santa Fe, NM, for Appellant
   ATTREP, Judge.

{1} Defendant David Gonzales appeals his convictions for racing on highways ( NMSA 1978, § 66-8-115 (1978) ), aggravated fleeing a law enforcement officer ( NMSA 1978, § 30-22-1.1 (2003) ), and careless driving ( NMSA 1978, § 66-8-114 (1978) ). Defendant argues that: (1) there is insufficient evidence to sustain his conviction for racing on highways and (2) his convictions for aggravated fleeing and careless driving violate double jeopardy. We agree with Defendant's double jeopardy argument and, accordingly, remand to the district court to vacate Defendant's conviction for careless driving. We otherwise affirm.

BACKGROUND

{2} At trial, Officer Joshua Herrera of the Las Cruces Police Department testified to the events giving rise to Defendant's convictions. While on duty in his marked patrol car, Officer Herrera was stopped at a red light behind two pickup trucks. One truck was directly in front of him and the other truck was in the right-hand lane. When the light turned green, Officer Herrera observed the driver of the truck to his right (later identified as Defendant) "rev[ ] up [his] engine and start[ ] peeling out." Defendant's truck "sat there while the tires were squealing," creating blue smoke. Defendant then "darted into the intersection once the tires were able to gain grip." Defendant's truck "lunged forward so fast that it left a gap" between Defendant and the rest of traffic, which enabled Officer Herrera to pull into Defendant's lane.

{3} After Officer Herrera engaged his emergency lights, Defendant pulled into a bank parking lot. Officer Herrera pulled in behind Defendant, left his emergency lights on, and got out of his patrol car. As the officer approached, the truck began "creeping forward" as if Defendant had left it in drive and taken his foot off the brake. Officer Herrera ordered Defendant to stop, and Defendant eventually brought his vehicle to a stop. When asked what happened at the intersection, Officer Herrera testified that Defendant said that "the guy beside him had pissed him off," referring to the truck to Defendant's left at the intersection. Defendant disputed this statement at trial and testified that he told Officer Herrera that he "popped the clutch in the intersection." After Officer Herrera requested Defendant's driver's license, insurance, and registration, Defendant "stepped on the gas" and took off from the parking lot. According to the officer, he had to "jump back ... to get away from [Defendant's] vehicle." Defendant "sped down the parking lot," turned out onto the street, and passed "through civilian traffic at a high rate of speed."

{4} Officer Herrera ran back to his patrol car, advised dispatch that Defendant was fleeing, and began to pursue Defendant with his lights and sirens on. There was substantial traffic on the road at the time, and the officer observed Defendant make a right-hand turn onto Roadrunner Lane, causing a white car to maneuver out of the way. Officer Herrera pursued Defendant onto Roadrunner Lane, where Defendant continued to drive fast behind other vehicles, forcing these vehicles to attempt to move to the right. Due to traffic conditions, Officer Herrera's supervisor quickly ordered him to stop pursuing Defendant.

{5} As the officer began to slow down and turn off his lights and sirens, he saw Defendant attempt to make a right-hand turn into a driveway. Because he was driving too fast, however, Defendant was unable to complete the turn successfully. His truck flew into the air and landed upside down in a ditch full of water. Officer Herrera then re-engaged his emergency equipment and proceeded to the crash, finding Defendant's truck partially submerged in water with Defendant trapped inside. With the help of other officers, Officer Herrera pulled Defendant to safety. Defendant testified that the entire chase took maybe three minutes and spanned a distance of, at most, a half of a mile. The parties stipulated at trial that, shortly after the incident, Defendant's blood alcohol content was above the legal limit.

{6} Defendant was charged with aggravated assault upon a peace officer, aggravated fleeing a law enforcement officer, driving while under the influence, careless driving, racing on highways, and various other Motor Vehicle Code offenses. Prior to trial, Defendant pleaded guilty to two Motor Vehicle Code offenses. The jury acquitted Defendant of aggravated assault upon a peace officer and convicted him of all remaining charges. Defendant appeals his convictions for racing on highways, aggravated fleeing a law enforcement officer, and careless driving.

DISCUSSION

I. Sufficient Evidence Supports Defendant's Conviction for Racing on Highways

{7} Defendant first contends that the evidence at trial was insufficient to support his conviction for racing on highways. To the extent Defendant's sufficiency argument turns on an interpretation of the racing on highways statute, "that presents a question of law which is reviewed de novo on appeal." State v. Chavez , 2009-NMSC-035, ¶ 10, 146 N.M. 434, 211 P.3d 891. As is stated often, "[i]n interpreting a statute, our primary objective is to give effect to the Legislature's intent." State v. Trujillo , 2009-NMSC-012, ¶ 11, 146 N.M. 14, 206 P.3d 125. "In discerning legislative intent, we look first to the language used and the plain meaning of that language." Id. "[W]hen a statute contains clear and unambiguous language, we will heed that language and refrain from further statutory interpretation." Id. "After reviewing the statutory standard, we apply a substantial evidence standard to review the sufficiency of the evidence at trial." Chavez , 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 P.3d 891.

{8} The racing on highways statute provides, in relevant part, that:

no person shall drive a vehicle on a highway in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration or for the purpose of making a speed record, whether or not the speed is in excess of the maximum speed prescribed by law, and no person shall in any manner participate in any such race, drag race, competition, contest, test or exhibition.

Section 66-8-115(A). The jury was instructed consistent with this statutory language. Both at trial and on appeal, the State contends that Defendant's conduct at the stop light prior to the traffic stop violated the portion of Section 66-8-115 criminalizing driving in an "exhibition of speed or acceleration." Id. The State does not contend that Defendant engaged in any race, competition, contest, or test. Defendant argues that in order to be convicted under Section 66-8-115 for exhibition of speed or acceleration, two elements must be present-first, there must be a competition or agreement with another driver, and second, any exhibition must include a display of driving skill or prowess to an audience.

{9} In service of his primary contention that a person can violate Section 66-8-115 only by making an agreement with another or by engaging in a competition, Defendant relies on a non-precedential memorandum opinion from this Court. In State v. Dominguez , this Court stated in passing that, "[a]s for exhibition of speed, [ Section 66-8-115 ] applies to drag racing and speed competitions." No. 30,189, memo op., 2010 WL 4162159, at *3 (N.M. Ct. App. May 4, 2010) (non-precedential). Dominguez did not, however, address the elements necessary for conviction under Section 66-8-115, nor did it address conduct similar to that at issue in this appeal. Id. To the extent Dominguez can be read to require that a race or competition with another is a necessary element of every violation of Section 66-8-115, that conclusion is contrary to the clear and unambiguous language in the statute, as discussed below, and is in tension with an earlier Supreme Court opinion in which the Court imposed no such requirement. See State v. Luna , 1980-NMSC-009, ¶¶ 5, 10, 93 N.M. 773, 606 P.2d 183 (construing municipal ordinance identical to Section 66-8-115 and concluding that a traffic stop was "reasonable and valid" where the defendant "pull[ed] away from a street intersection at a high rate of acceleration, causing the rear tires of his car to spin on the pavement"), abrogated on other grounds by Horton v. California , 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). Consequently, we do not find Dominguez persuasive and we decline to follow its rationale. See Rule 12-405(A) NMRA ("Non-precedential dispositions may be cited for any persuasive value[.]").

{10} Moreover, Defendant's construction of Section 66-8-115 is not borne out by the statutory language. The statute sets out a list of prohibited driving activities-in particular, "no person shall drive a vehicle on a highway in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration or for the purpose of making a speed record ... and no person shall in any manner participate in any such race, drag race, competition, contest, test or exhibition." Section 66-8-115(A) (emphases added). The use of the disjunctive "or" makes plain that the statute may be violated in a number of ways-by engaging in a race, drag race, competition, contest, test, or exhibition-at least two of which (a test or an exhibition) require no agreement or competition among drivers. Were we to interpret "exhibitions of speed or acceleration" to require some element of competition or agreement, as Defendant requests, this portion of the statute would be redundant given the other prohibitions. Consequently, we decline to read Section 66-8-115 in this manner. See Trujillo , 2009-NMSC-012, ¶ 11, 146 N.M. 14, 206 P.3d 125 ("We will not read into a statute any words that are not there, particularly when the statute is complete and makes sense as written."); State v. Padilla , 2008-NMSC-006, ¶ 33, 143 N.M. 310, 176 P.3d 299 ("A statute must be construed so that no part of the statute is rendered surplusage or superfluous." (internal quotation marks and citations omitted)). Based on the clear and unambiguous statutory language, we conclude that "exhibition of speed or acceleration" does not require an agreement or competition.

{11} Defendant next advances a narrow definition of "exhibition," asserting it requires a "display of driving skill to an audience." The term "exhibition" is not defined in the relevant criminal statutes. It has, however, been defined by our Supreme Court in other criminal contexts. In State v. Myers , for example, our Supreme Court relied on a dictionary definition to define an "exhibition" as a "showing, evincing, or showing off." 2009-NMSC-016, ¶ 19, 146 N.M. 128, 207 P.3d 1105 (construing the meaning of "lewd and sexually explicit exhibition" within NMSA 1978, Section 30-6A-2(A)(5) (2001) (internal quotation marks and citation omitted)).

The Court also found guidance in the dictionary definition of the verb "to exhibit," meaning to "show or display outwardly especially by visible signs or actions[.]" Id. (alteration, omission, internal quotation marks, and citation omitted). We find these dictionary definitions instructive in our construction of Section 66-8-115. See State v. Lindsey , 2017-NMCA-048, ¶ 14, 396 P.3d 199 ("Our courts often use dictionary definitions to ascertain the ordinary meaning of words that form the basis of statutory construction inquiries." (alteration, internal quotation marks, and citation omitted)). Contrary to Defendant's contention, the plain meaning of the term "exhibition" does not require a display of a particular skill, such as driving prowess. And, as discussed below, any requirement that the "exhibition of speed or acceleration" involve a public display to another has been met in this case.

{12} We pause to emphasize that we have not attempted to draw the boundaries of criminality of "exhibition of speed or acceleration," nor do we suggest that every tire screech, squeal, or instance of peeling out will be sufficient to impose criminal liability under Section 66-8-115. Nonetheless, we have little trouble concluding that the evidence in this case is sufficient to support a conviction under Section 66-8-115 for "exhibition of speed or acceleration." "The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction." State v. Montoya , 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation omitted). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[.]" State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation omitted). In making this determination, we "view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.

{13} In this case, with an officer and at least one other motorist present, Defendant revved his engine as soon as a traffic light turned green, causing his tires to peel out, squeal, and produce blue smoke. Once Defendant's tires gained traction on the road, his truck "darted into the intersection[,]" accelerating quickly in front of other traffic. Further, when asked what happened at the intersection, according to Officer Herrera, Defendant said that "the guy beside him had pissed him off[.]" Viewing this evidence in the light most favorable to the verdict, there is substantial evidence that Defendant intentionally engaged in an outward display of speed or acceleration to another. See Luna , 1980-NMSC-009, ¶ 10, 606 P.2d 183 (assuming that there is a display requirement for exhibition of speed or acceleration and concluding any such requirement was met when at least one person, a police officer, was present to witness the defendant's conduct at an intersection); Grier , 38 Cal. Rptr. at 11 (holding that the defendant engaged in an "exhibition of speed on a highway" when he accelerated in such a manner "as to cause the tires to scream loudly and to lose traction"); Bice v. State , 17 S.W.3d 354, 355-56 (Tex. Ct. App. 2000) (holding, under a substantially similar statute, that the defendant engaged in an "exhibition of vehicle speed or acceleration" when he left a stoplight by spinning his tires). We, therefore, conclude that a rational jury could have found beyond a reasonable doubt the essential facts required for conviction under Section 66-8-115 for "exhibition of speed or acceleration." We affirm Defendant's conviction for the same.

II. Defendant's Convictions for Both Aggravated Fleeing and Careless Driving Violate Double Jeopardy

{14} Defendant challenges his convictions for aggravated fleeing and careless driving as violating his constitutional right to be free from double jeopardy. The double jeopardy clause "protects defendants from receiving multiple punishments for the same offense." State v. Ramirez , 2018-NMSC-003, ¶ 38, 409 P.3d 902 (internal quotation marks and citation omitted); see U.S. Const, amend. V ; N.M. Const, art. II, § 15.

Defendant raises a double-description double jeopardy claim, "in which a single act results in multiple charges under different criminal statutes[.]" State v. Bernal , 2006-NMSC-050, ¶ 7, 140 N.M. 644, 146 P.3d 289. In analyzing double-description challenges, we employ the two-part test, set out in Swafford v. State, in which we examine: (1) whether the conduct is unitary, and, if so, (2) whether the Legislature intended to punish the offenses separately. 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. "Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial." Id. Defendant's double jeopardy challenge presents a constitutional question of law, which we review de novo. State v. Swick , 2012-NMSC-018, ¶ 10, 279 P.3d 747.

A. Unitary Conduct

{15} The resolution of the unitary-conduct question "depends to a large degree on the elements of the charged offenses and the facts presented at trial." State v. Franco , 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (internal quotation marks and citation omitted). "[S]eparate punishments may be imposed if the offenses are separated by sufficient indicia of distinctness." Id. (internal quotation marks and citation omitted). In making this determination, "we consider such factors as whether acts were close in time and space, their similarity, the sequence in which they occurred, whether other events intervened, and the defendant's goals for and mental state during each act." Id. "The proper analytical framework is whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses." Id. (internal quotation marks and citation omitted).

{16} Defendant was charged with aggravated fleeing a law enforcement officer. In order to prove that charge, the State was required to show in relevant part that Defendant "willfully and carelessly dr[ove] his [motor] vehicle in a manner that endanger[ed] the life of another person[.]" Section 30-22-1.1(A) ; see also UJI 14-2217 NMRA (jury instruction for aggravated fleeing a law enforcement officer). Defendant was also charged with careless driving, which requires proof that Defendant operated a motor vehicle on a highway "in a careless, inattentive or imprudent manner, without due regard for the width, grade, curves, comers, traffic, weather and road conditions and all other attendant circumstances." Section 66-8-114(B) ; see also UJI 14-4505 NMRA (jury instruction for careless driving).

{17} Defendant argues that the State relied on the same conduct-Defendant's driving on Roadrunner Lane-as the basis for both his aggravated fleeing and careless driving convictions. The State disagrees and argues that Defendant's conduct is not unitary because the jury reasonably could have inferred separate factual bases supporting each charge. In particular, the State argues that the conduct at issue here is not unitary because "[t]he offense of aggravated fleeing a law enforcement officer was completed and all its elements were met when [Defendant sped off from the bank parking lot], endangering the life and safety of Officer Herrera who was standing very close to Defendant's vehicle." The State's argument is not well supported.

{18} In the context of a defendant's continuous flight from law enforcement, this Court has rejected the principle that the technical completion of one offense is sufficient to find non-unitary conduct. In particular, in State v. Padilla , we examined whether the defendant's flight from law enforcement-first in a vehicle and then on foot-was non-unitary. 2006-NMCA-107, ¶¶ 24-30, 140 N.M. 333, 142 P.3d 921 rev'd on other grounds , 2008-NMSC-006, 143 N.M. 310, 176 P.3d 299. Although we recognized that "our Supreme Court has recently emphasized that conduct may be viewed as non-unitary if one can clearly discern a point in the events where one crime has been completed and another crime has yet to be committed," id. ¶ 29 (citing State v. DeGraff, 2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 61 ), we, nevertheless, concluded that "it is artificial to parse conduct when a suspect flees from the police in one way and then immediately continues to flee in another way," id. ¶ 30.

{19} Likewise, here, there is nothing in the record that would serve to separate the offenses of aggravated fleeing and careless driving under the State's theory on appeal. From the testimony at trial, it appears this entire incident lasted at most minutes and spanned less than one mile. There were no discernable intervening events between Defendant's initial flight in the parking lot and his continuing flight on Roadrunner Lane, and Defendant throughout drove in a manner that suggested a singular focus-escaping apprehension. All this supports a determination that Defendant engaged in one continuous course of unitary conduct. See Padilla , 2006-NMCA-107, ¶ 30, 142 P.3d 921 (concluding that the defendant's flight, first in a vehicle and then on foot, was unitary conduct); State v. LeFebre, 2001-NMCA-009, ¶¶ 15-18, 130 N.M. 130, 19 P.3d 825 (concluding that, notwithstanding that the defendant used different means to evade officers and wrecked his vehicle, which precipitated his flight on foot, there was unitary conduct that could support only one conviction for evading or obstructing an officer).

{20} Regardless, the State at trial did not direct the jury to Defendant's actions in the parking lot as the basis for the aggravated fleeing offense. Instead, the State specifically directed the jury to consider Defendant's conduct on Roadrunner Lane as satisfying the essential elements of both aggravated fleeing and careless driving. With respect to aggravated fleeing, the State argued in closing: "Was [Defendant] putting other people at risk? Look at Roadrunner [Lane],... He's forcing traffic to move to the right while he's passing it." Also in closing, the State discussed careless driving, directing the jury to "just look at Roadrunner Lane" for testimony establishing the required elements. See State v. Silvas , 2015-NMSC-006, ¶¶ 10, 19, 343 P.3d 616 (considering the state's closing arguments in determining whether the defendant's conduct was unitary); State v. Ramirez , 2016-NMCA-072, ¶ 17, 387 P.3d 266 (same); State v. Contreras , 2007-NMCA-045, ¶ 22, 141 N.M. 434, 156 P.3d 725 (same).

{21} Citing to State v. Herrera , 2015-NMCA-116, 362 P.3d 167, the State nevertheless contends that "when reviewing whether conduct is unitary in the double jeopardy context, we [should] indulge in all presumptions in favor of the verdict." Id. ¶ 12 (internal quotation marks and citation omitted). We question the applicability of this presumption in a case, such as this, where the State specifically directs the jury to the same conduct to establish two crimes. In such a case, our Supreme Court has indicated that, even where there was ample evidence of non-unitary conduct, we should presume unitary conduct where the State's theory at trial relied on the same conduct to prove the two offenses at issue. See Franco , 2005-NMSC-013, ¶ 11, 112 P.3d 1104 (presuming unitary conduct where the state's theory at trial relied on the same conduct to convict the defendant of both possession of a controlled substance and tampering with evidence, even though there was ample evidence in the record of non-unitary conduct); cf. Contreras , 2007-NMCA-045, ¶ 23, 156 P.3d 725 (declining to presume unitary conduct where the state had not limited its legal theory to a single factual basis for multiple charges and additionally "provided the jury with sufficiently distinct factual bases upon which it could base [the d]efendant's conviction"). Because the State explicitly directed the jury to consider the same conduct to support Defendant's convictions for both aggravated fleeing and careless driving, we presume unitary conduct.

B. Legislative Intent

{22} Having presumed unitary conduct, we analyze the second Swafford prong. Franco , 2005-NMSC-013, ¶ 11, 112 P.3d 1104. "The sole limitation on multiple punishments is legislative intent[.]" Id. ¶ 12 (alteration, internal quotation marks, and citation omitted). "When, as here, the statutes themselves do not expressly provide for multiple punishments, we begin by applying the rule of statutory construction from Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether each provision requires proof of a fact that the other does not." State v. Branch , 2018-NMCA-031, ¶ 24, 417 P.3d 1141. If all elements of one statute are "subsumed within the other, then the analysis ends and the statutes are considered the same for double jeopardy purposes." Silvas , 2015-NMSC-006, ¶ 12, 343 P.3d 616 ; see Swafford, 1991-NMSC-043, ¶ 30, 810 P.2d 1223 (stating that when the statutes are the same under the legislative intent prong, "punishment cannot be had for both"). When dealing with statutes that are "vague and unspecific" or "written with many alternatives," we apply a modified version of the Blockburger analysis. State v. Gutierrez , 2011-NMSC-024, ¶ 59, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks and citation omitted). Under the modified Blockburger analysis, "we no longer apply a strict elements test in the abstract; rather, we look to the state's trial theory to identify the specific criminal cause of action for which the defendant was convicted, filling in the case-specific meaning of generic terms in the statute when necessary." Branch , 2018-NMCA-031, ¶ 25, 417 P.3d 1141.

{23} Both statutes at issue here define the criminal conduct broadly. As noted, aggravated fleeing requires that a defendant "willfully and carelessly dr[ove] his [motor] vehicle in a manner that endanger[ed] the life of another person," § 30-22-1.1(A), while careless driving requires proof that a defendant operated a motor vehicle on a highway "in a careless, inattentive or imprudent manner, without due regard for the width, grade, curves, comers, traffic, weather and road conditions and all other attendant circumstances," § 66-8-114. Given these terms, there are innumerable ways in which a person might drive that would violate both statutes. Consequently, we apply modified Blockburger here. See State v. Luna , 2018-NMCA-025, ¶ 14, --- P.3d ---- (applying modified Blockburger where the "generic terms [of the statute] make it possible for numerous forms of conduct to qualify as the requisite actus reus element of the statute"), cert . denied , 2018-NMCERT-_________ (No. S-1-SC-36896, Jan. 23, 2018); see also Swick , 2012-NMSC-018, ¶ 25, 279 P.3d 747 (applying the modified Blockburger analysis to the attempted murder statute because many forms of conduct could satisfy the necessary elements); Branch , 2018-NMCA-031, ¶ 28, 417 P.3d 1141 (applying the modified Blockburger analysis to the aggravated assault statute because many forms of conduct could satisfy the necessary elements). In applying modified Blockburger , we examine "the actual legal theory in [this] particular case by considering such resources as the evidence, the charging documents, and the jury instructions." State v. Montoya , 2013-NMSC-020, ¶ 49, 306 P.3d 426.

{24} Because the indictment and jury instructions provide no detail about the State's theory of the case, we look to the evidence as discussed by the State in closing arguments. See Silvas, 2015-NMSC-006, ¶¶ 19-20, 343 P.3d 616 (looking to the state's closing argument as evidence of the state's theory for purposes of applying a modified Blockburger analysis); see also Swick, 2012-NMSC-018, ¶ 21, 279 P.3d 747 (examining charging document and jury instructions in modified Blockburger analysis). As noted, the State directed the jury during its closing to Defendant's driving on Roadrunner Lane as the basis for both aggravated fleeing and careless driving. Under the State's theory at trial, Defendant committed aggravated fleeing when he "willfully and carelessly [drove] a vehicle" down Roadrunner Lane (a highway, as defined in NMSA 1978, Section 66-1-4.8(B) (1991) ), endangering other motorists. Likewise, Defendant drove "in a careless, inattentive or imprudent manner" based on the same conduct occurring on Roadrunner Lane. Section 66-8-114(B). Thus, although careless driving, when viewed in the abstract, requires proof of an element that aggravated fleeing does not-i.e., operating a motor vehicle on a highway , § 66-8-114(A) -as applied in this case, it does not. See Silvas , 2015-NMSC-006, ¶ 14, 343 P.3d 616 (considering, under modified Blockburger , "not only whether each statute in the abstract requires proof of a fact that the other does not, but also whether the statute, as applied by the [s]tate in a given case, overlaps with other criminal statutes so that the accused is being punished twice for the same offense" (alteration, internal quotation marks, and citation omitted)). Because Defendant's conduct occurred on a highway, in this case, careless driving does not require proof of any fact not contained in aggravated fleeing.

{25} "The only arguable difference in the two crimes is a slightly different articulation of the necessary mental state." Padilla , 2006-NMCA-107, ¶ 34, 140 N.M. 333, 142 P.3d 921. We note, however, that driving a vehicle "willfully and carelessly" as required by the aggravated fleeing statute encompasses the mental state of civil negligence necessary to sustain a conviction for careless driving. See State v. Yarborough , 1996-NMSC-068, ¶ 21, 122 N.M. 596, 930 P.2d 131 (holding "that the careless-driving statute requires only a showing of ordinary or civil negligence"); Padilla , 2006-NMCA-107, ¶ 34, 140 N.M. 333, 142 P.3d 921 (concluding that the differing mental states required by two statutes evidenced "a distinction without a difference" when the lesser mental state would always be subsumed within the greater). Applying modified Blockburger to the State's theory of the case, all elements of careless driving are subsumed within the elements of aggravated fleeing. Thus, there is no indication that the Legislature intended to punish these two crimes separately. See Swafford , 1991-NMSC-043, ¶ 30, 112 N.M. 3, 810 P.2d 1223 (stating that when the two charged statutes are the same under legislative intent prong, "punishment cannot be had for both").

{26} We, therefore, conclude that Defendant's convictions for both aggravated fleeing and careless driving violate double jeopardy, and consequently Defendant's conviction for careless driving must be vacated. See Padilla , 2006-NMCA-107, ¶ 36, 140 N.M. 333, 142 P.3d 921 ("Where we conclude that double jeopardy has been violated, we vacate the lesser offense and retain the conviction for the greater offense.").

CONCLUSION

{27} Having concluded Defendant's right to be free from double jeopardy was violated, we remand to the district court to vacate the lesser offense of careless driving and to resentence Defendant accordingly. Because we also conclude that Defendant's conviction for racing on highways is supported by sufficient evidence, we affirm the same.

{28} IT IS SO ORDERED.

WE CONCUR:

LINDA M. VANZI, Judge

J. MILES HANISEE, Judge

      We note that our conclusion here is in line with other jurisdictions' constructions of similar statutes. See People v. Grier , 226 Cal.App.2d 360, 38 Cal. Rptr. 11, 12 (1964) (concluding that statute "could be violated by two or more persons competing in speed in vehicles on the highway or by one person displaying the speed of his vehicle on the highway to another person in the first person's car or in another car" (emphasis added) (internal quotation marks and citation omitted)); People v. Heckard , 164 Colo. 19, 431 P.2d 1014, 1016 (1967) (concluding that statute "defines two primary offenses,... the 'speed or acceleration contest,' and the 'exhibition of speed or acceleration'.... [and that a] 'contest' ordinarily implies a plurality of participants in a deliberate, competitive act ..., while an 'exhibition' implies a person's display, for the purpose of attracting public attention, of the same acts").

      Regrettably, the State did not present any argument in its briefing regarding the legislative intent prong of Swafford, and so we conduct this analysis without input from the State.


author: IVES, Judge.

text:
    State of New Mexico HUMAN SERVICES DEPARTMENT, CHILD SUPPORT ENFORCEMENT DIVISION (CSED), and Kanean Toledo, Petitioners-Appellees, v. Howard TONEY, Jr., Respondent-Appellant.
    No. A-1-CA-37442
    Court of Appeals of New Mexico.
    Filing Date: May 2, 2019 Certiorari Denied, June 25, 2019, S-1-SC-37701 Released for Publication July 23, 2019
    New Mexico Legal Aid, Inc., Kathryn Suzanne Almond, Simon Tuck, Bernalillo, NM, Edna Frances Sprague, Albuquerque, NM, for Appellee Kanean Toledo
    New Mexico Human Services Department, Child Support Enforcement Division, Sarah J. Batzli, Larry Heyeck, Kristin Sanderson, Santa Fe, NM, for Appellee Human Services Department
    Titus and Murphy Law Firm, Tyson K. Gobble, Farmington, NM, for Appellant
   IVES, Judge.

{1} The district court ordered Howard Toney (Father) to pay child support retroactive to the date of his separation from Kanean Toledo (Mother) pursuant to the New Mexico Uniform Parentage Act (NMUPA), NMSA 1978, §§ 40-11A-101 to -903 (2009). Father argues that the NMUPA's retroactive child support provision, § 40-11A-636(G), does not apply to him because he acknowledged paternity before Mother and the Child Support Enforcement Division (CSED) petitioned for child support. We disagree and affirm.

BACKGROUND

{2} In 2005, when she was fifteen years old, Mother gave birth to a daughter. Mother and Father were not married when their daughter was born, and Father executed an acknowledgement of paternity. The couple lived together off and on and then separated in 2006. Father only paid Mother child support in 2011 and 2012.

{3} Mother assigned her right to child support to the State because it had provided assistance to the child. See generally NMSA 1978, § 27-2-28 (2009). In August of 2016, CSED filed a petition on behalf of Mother, and the State seeking child and medical support from Father.

{4} By stipulated order, the district court directed Father to make monthly payments to Mother for ongoing child and medical support. After considering the parties' legal arguments and testimony, a child support hearing officer concluded that the NMUPA applied and recommended that the district court order Father to pay child support retroactive to his separation from Mother in 2006.

{5} Father objected to this recommendation, arguing that Section 40-11A-636(G) did not apply because he had previously acknowledged paternity. Father asserted that he was therefore not responsible for any child support from the time of his daughter's birth in 2005 through the filing of the petition in August 2016.

{6} The district court overruled the objection and adopted the hearing officer's recommendation, concluding that the NMUPA applied and authorized an order of support retroactive to the date of the couple's separation. Father appeals.

DISCUSSION

Standard of Review

{7} "We review the setting of child support orders for abuse of discretion." Zabolzadeh v. Zabolzadeh , 2009-NMCA-046, ¶ 4, 146 N.M. 125, 207 P.3d 359. It is an abuse of discretion for a district court to base a discretionary decision on or apply an incorrect standard or incorrect substantive law. Id. Father challenges the district court's interpretation of the NMUPA, an issue of statutory construction we review de novo. Moongate Water Co. v. City of Las Cruces, 2013-NMSC-018, ¶ 6, 302 P.3d 405.

The NMUPA

{8} To "ascertain the legislative intent" behind the NMUPA, we "begin with [its] plain language." N.M. Indus. Energy Consumers v. Pub. Regulation Comm'n, 2007-NMSC-053, ¶ 21, 142 N.M. 533, 168 P.3d 105. "Because we consider statutes in the context of the broader act in which they are situated, we read them in conjunction with statutes addressing the same subject matter, ensuring a harmonious, common-sense reading." Chatterjee v. King, 2012-NMSC-019, ¶ 12, 280 P.3d 283. Our interpretations must "facilitate [the statute's] operation and the achievement of [its] goals." Padilla v. Montano, 1993-NMCA-127, ¶ 23, 116 N.M. 398, 862 P.2d 1257. We "consider the practical implications" of potential interpretations, Bishop v. Evangelical Good Samaritan Soc'y, 2009-NMSC-036, ¶ 11, 146 N.M. 473, 212 P.3d 361, rejecting those that "defeat [the statute's] intended purpose[,]" Padilla, 1993-NMCA-127, ¶ 23, 116 N.M. 398, 862 P.2d 1257.

{9} The NMUPA governs the "determination of parentage[,]" § 40-11A-103(A), which is "the establishment of the parent-child relationship[,]" § 40-11A-102(H), "the legal relationship" between a parent and child, § 40-11A-102(N). The NMUPA provides two legal mechanisms for determining parentage: (1) "the signing of a valid acknowledgment of paternity" and (2) "adjudication by the court[.]" Section 40-11A-102(H).

{10} In contrast to an adjudication of parentage, which involves a judicial proceeding generally governed by our rules of civil procedure, § 40-11A-601, the execution of an acknowledgment of paternity under the NMUPA is a relatively simple, inexpensive, and informal process. To execute an acknowledgment, "[t]he mother of a child and a man claiming to be the genetic father [must] sign an acknowledgment of paternity with intent to establish the man's paternity." Section 40-11A-301. Their signatures must be under penalty of perjury and on a form provided by the Bureau of Vital Records and Health Statistics. Section 40-11A-302(A)(1)-(2); see also § 40-11A-102(E). The acknowledgment must contain various statements indicating that the acknowledging signatory is indeed the child's father and notifying the signatories of the legal effects of the acknowledgment, § 40-11A-302(A), and it is void if it states or falsely denies that a different man is the child's acknowledged, adjudicated, or, in most cases, presumed father. Section 40-11A-302(B).

{11} An acknowledgment of paternity satisfying the requirements described above and filed with the bureau "is equivalent to an adjudication of paternity of a child[,]" § 40-11A-305(A), and is binding on all signatories, § 40-11A-637(A)(1), with two exceptions. The NMUPA allows signatories to avoid an acknowledgment's legal consequences through rescission and challenge, both of which involve judicial proceedings governed by the same rules that govern adjudication of paternity. See § 40-11A-305(A) (providing that a valid acknowledgment is equivalent to an adjudication except as provided in the rescission and challenge statutes); § 40-11A-307 (providing for rescission); § 40-11A-308 (providing for challenge within two years based on fraud, duress, or material mistake of fact); § 40-11A-309 (describing procedure for rescission or challenge); § 40-11A-309(D) (providing that proceedings for rescission and challenge "shall be conducted in the same manner as a proceeding to adjudicate parentage").

{12} The NMUPA also provides for proceedings to enforce the obligations arising from the parent-child relationship. "[A]ny interested party" may enforce "the obligation of the noncustodial parent" if "existence of the parental relationship is declared, or paternity or a duty of support has been acknowledged or adjudicated under the [NMUPA] or under prior law[.]" Section 40-11A-639(A). A custodial parent or any other interested party may enforce a noncustodial parent's duty to pay child support by timely initiating a "proceeding to adjudicate child support." Section 40-11A-607(A).

{13} District courts have broad remedial authority in enforcement proceedings. Our Legislature did not cabin their powers to the entry of orders adjudicating paternity pursuant to Section 40-11A-636(A). Rather, under Section 40-11A-636(G), courts may also enter judgments and orders addressing a wide array of common issues involving parents and children-including orders requiring noncustodial parents to fulfill their "duty of past and future support[.]" Subsection (G) states, in relevant part:

The court shall order child support retroactive to the date of the child's birth, but not to exceed twelve years unless there is a substantial showing that paternity could not have been established and an action for child support could not have been brought within twelve years of the child's birth pursuant to the provisions of Sections 40-4-11 through 40-4-11.3 NMSA 1978; provided that, in deciding whether or how long to order retroactive support, the court shall consider:
(1) whether the alleged or presumed father has absconded or could not be located; and
(2) whether equitable defenses are available.

Id.

Application of the NMUPA to Father

{14} We believe the district court's application of the NMUPA's retroactive support provision to Father is consistent with the plain language, structure, and purpose of the NMUPA. By filing a timely petition, CSED sought to enforce "the obligation of the noncustodial parent," § 40-11A-639(A), through a "proceeding to adjudicate child support" under Section 40-11A-607. The petition included the undisputed allegation that Father is the child's father, which in turn rested on Father's acknowledgement of paternity. No party challenged the acknowledgement based on allegations of fraud, duress, material mistake of fact, or genetic testing. See generally §§ 40-11A-308, -309, -631(A). Properly treating the unchallenged acknowledgement as the functional equivalent of an adjudication of paternity, the district court exercised its remedial authority under Section 40-11A-636(G). The court considered the parties' arguments and testimony regarding Father's child support obligations. It then directed Father to fulfill his duty "of past and future support," id., ordering him to pay retroactive to when Father and Mother separated. In our view, the court's actions were well within its authority under the NMUPA and therefore were not an abuse of discretion.

{15} Father sees this differently. He argues that the NMUPA's retroactivity provision-which on its face is generally applicable-does not apply to him because he acknowledged paternity before CSED filed the petition. Father relies heavily on a pair of cases in which fathers sought to be exempted from the UPA's retroactive child support provision: Sisneroz v. Polanco, 1999-NMCA-039, 126 N.M. 779, 975 P.2d 392, and Zabolzadeh v. Zabolzadeh, 2009-NMCA-046, 146 N.M. 125, 207 P.3d 359. But neither case dictates the holding Father seeks. The issue in Sisneroz was "whether the UPA applie[d] to fathers who do not deny paternity of their children but never formally acknowledge their paternity or assume legal responsibility for their support." 1999-NMCA-039, ¶ 6, 126 N.M. 779, 975 P.2d 392. Rejecting the father's request for an exemption, we held that the UPA authorized retroactive support. See id. ¶ 10. In Zabolzadeh , the issue was whether the UPA authorized retroactive support in a proceeding brought in New Mexico twelve years after a California court had adjudicated paternity based on a stipulation by the mother and father. 2009-NMCA-046, ¶¶ 1-4, 146 N.M. 125, 207 P.3d 359. In the particular circumstances of that case, we reversed the award of retroactive child support, finding error in the district court's adjudication of paternity "for the second time when [the f]ather's paternity had already been judicially acknowledged and adjudicated in the California court." Id. ¶ 5 ; see id. ¶¶ 6-7.

{16} After Sisneroz and Zabolzadeh , we addressed a mother's request for an exemption from the UPA's retroactive child support provision in Diamond v. Diamond, 2011-NMCA-002, 149 N.M. 133, 245 P.3d 578, rev'd on other grounds, 2012-NMSC-022, 283 P.3d 260. There, we rejected the mother's argument "that the UPA was an improper vehicle for any award of child support because [her] parentage was not in dispute." Id. ¶ 27. We explained that, in Zabolzadeh , "[t]he father's paternity was established by court order" in California years before the mother petitioned for retroactive child support in New Mexico. Diamond, 2011-NMCA-002, ¶ 29, 149 N.M. 133, 245 P.3d 578. We then distinguished Zabolzadeh , reasoning that "[i]n the present case ... [the m]other's parentage of [the d]aughter, while not disputed, had never been judicially acknowledged and adjudicated." Diamond, 2011-NMCA-002, ¶ 30, 149 N.M. 133, 245 P.3d 578. Accordingly, we concluded in Diamond that the UPA was an "appropriate vehicle" for determination of parentage and retroactive child support. Id. ¶ 33.

{17} Like Diamond , Father's case is distinct from Zabolzadeh . Just as the parentage of the mother in Diamond was not judicially acknowledged and adjudicated before the UPA proceedings were initiated, Father's parentage was not judicially acknowledged and adjudicated at any time before CSED filed its petition in 2016. Father does not contend otherwise.

{18} Instead, Father asks us to expand the narrow exemption we recognized in Zabolzadeh so that it includes all fathers who acknowledge paternity through the informal procedures in the NMUPA before they are named as respondents in an enforcement proceeding. Father argues that he enjoys an exemption from the NMUPA's retroactive support provision because he previously acknowledged paternity. Under Father's theory, an acknowledgement of paternity executed before a petition for support is filed should have the same preclusive effect as an adjudication of parentage entered by a court before a support petition is filed.

{19} Whether Father's argument has merit turns on the meaning of Section 40-11A-305(A), which states: "Except as otherwise provided in Sections [40-11A]-307 and [40-11A]-308[,] ... a valid acknowledgement of paternity filed with the bureau is equivalent to an adjudication of paternity of a child." In discerning the legislative intent behind this equivalency provision, we consider its plain language in light of its "function within [the] comprehensive legislative scheme" of the NMUPA, including the enforcement and remedial provisions governing proceedings to adjudicate child support. State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939. "Equivalent" means "like in signification or import" or "corresponding or virtually identical especially in effect or function." Equivalent, Merriam-Webster, https://www.merriam-webster.com/dictionary/equivalent (last updated Apr. 7, 2019); accord Equivalent, Black's Law Dictionary (9th ed. 2009) (defining term as "[e]qual in ... force, ... effect, or significance" or "[c]orresponding in effect or function"). Accordingly, to determine the meaning of the equivalence between adjudications and acknowledgments of paternity, we focus on the effect, function, and import of the competing interpretations in the child support context.

{20} Under Father's reading of the equivalency language in Section 40-11A-305(A), adjudication and acknowledgement would have opposite effects and functions. Despite its mandate that they be treated "equivalently," the NMUPA would prohibit retroactive support when paternity is acknowledged and allow it when paternity is adjudicated. We have found nothing in the NMUPA to suggest that our Legislature intended for the two legally equivalent mechanisms of establishing paternity to have opposite effects on children, parents, and the state. We therefore reject Father's interpretation of the equivalency provision and decline his invitation to exempt acknowledged fathers from the NMUPA remedy of retroactive support.

{21} Instead, we hold that the NMUPA authorizes district courts to order retroactive support when an acknowledgement of paternity has established the parent-child relationship. Our holding rests on the plain meaning of the equivalency provision and our understanding of the NMUPA's structure and purpose. We begin where a district court begins its analysis of a petition for child support: the threshold question of whether paternity is contested or uncontested. When paternity is contested, the NMUPA requires the court to adjudicate paternity before it adjudicates child support. The existence of an acknowledgement of paternity does not necessarily mean that paternity will be uncontested. When someone challenges an acknowledgement, the court must adjudicate paternity. See §§ 40-11A-308, -309(D), -636(A). If, at the end of the adjudicatory process, the court finds paternity, it proceeds to the remedial phase, which entails application of the child support provisions of Section 40-11A-636(G) to the facts of the case before it.

{22} An unchallenged acknowledgement of paternity, such as the one at issue in Father's appeal, gives the parties and the courts a dramatically shorter path to the same destination: the child support remedies in Section 40-11A-636(G). When an acknowledgement goes unchallenged, paternity is uncontested, and the court moves directly to the determination of remedies. The only remaining step is to enforce the father's duty of support by entering a judgment or order, which may include a provision requiring "retroactive" or "past" support. Section 40-11A-636(G). The acknowledgement shortcut obviates the need for further proceedings regarding paternity. See § 40-11A-201(B)(2) ("The father-child relationship is established [by] an effective acknowledgment of paternity ... unless the acknowledgment has been rescinded or successfully challenged[.]").

{23} An unchallenged acknowledgement conclusively establishes paternity, just as the court's adjudication of paternity would have if a party had contested paternity. In other words, "a valid acknowledgement of paternity ... is equivalent to an adjudication of paternity." Section 40-11A-305(A). Because they are equivalents, both a valid acknowledgement of paternity and an adjudication of paternity authorize a court to order child support, including retroactively. Valid acknowledgements have the same function and effect as adjudications in the child support adjudication process.

{24} Our holding today advances the Legislature's goal of broadly applying the NMUPA to ensure that it serves its important purposes, unhindered by overly technical application of provisions designed to ensure that all parents contribute equitably to their children's financial support. Our Supreme Court has recognized that "the Legislature clearly intended that the UPA have broad application." Chatterjee v. King, 2012-NMSC-019, ¶ 7, 280 P.3d 283 (internal quotation marks omitted). Our courts must therefore read the statute in light of the goals the Legislature sought to achieve, see id. ¶¶ 33-34, including protecting "the interest that children have in their own support." Id. ¶ 33. Were we to adopt Father's position and recognize a categorical exemption from the NMUPA for acknowledged fathers, children would be deprived of important resources they are entitled to from birth. This would undermine a key legislative goal and violate an overarching command of our family law jurisprudence: "in every proceeding in which minor children are involved, a court's primary obligation is to further the best interests of the child." Wasson v. Wasson, 1978-NMCA-092, ¶ 4, 92 N.M. 162, 584 P.2d 713 ; see Chatterjee , 2012-NMSC-019, ¶ 37, 280 P.3d 283 ("[T]he 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."); Wallis v. Smith , 2001-NMCA-017, ¶ 10, 130 N.M. 214, 22 P.3d 682 ("Making each parent financially responsible for the conception and birth of children ... illuminates a strong public policy that makes paramount the interests of the child.").

{25} A judicially crafted exemption for acknowledged fathers would also harm the person who has custody of the child-often the mother-by requiring that person to shoulder more than her or his fair share. See Sisneroz, 1999-NMCA-039, ¶ 15, 126 N.M. 779, 975 P.2d 392 ("Retroactive child support is for the benefit of a child as well as for that child's custodian."). All parents have a duty to support their children starting at birth. See Stringer v. Dudoich, 1978-NMSC-071, ¶ 7, 92 N.M. 98, 583 P.2d 462 ("A child has the right of support from his parents whether or not he is in their custody."); Mintz v. Zoernig, 2008-NMCA-162, ¶ 15, 145 N.M. 362, 198 P.3d 861 (recognizing that "a natural father is required to support his children" and that child support is a parent's most important obligation). The NMUPA codifies this duty for both acknowledged and adjudicated fathers. Acknowledging paternity is a way for a father to accept his share of financial responsibility for a child, not to shift responsibility to the mother or another custodian.

{26} In addition, Father's requested exemption would harm the state, which "has a strong interest in ensuring that a child will be cared for, financially and otherwise, by two parents" because the state "ultimately assume[s] the responsibility of caring for the child." Chatterjee , 2012-NMSC-019, ¶ 32, 280 P.3d 283. Indeed, protecting this state interest was "one of the primary reasons that the original UPA was created," and, as our Supreme Court has recognized, "it makes little sense to read the statute without keeping this overarching legislative goal in mind." Id. Father's reading of the NMUPA would undermine this goal.

{27} Father's reading would also undermine the goal of encouraging parents to choose the simpler, faster, and less expensive mechanism for determining paternity: acknowledgement. The NMUPA requires the signature of both parents for an acknowledgment of paternity to be valid. Sections 40-11A-301, -302(A)(2). Custodial parents would have a powerful incentive to withhold their signatures were we to hold, as Father urges, that signing an acknowledgment precludes retroactive support.

{28} Even if we identified significant ambiguity in the NMUPA's relevant provisions, which we do not, we would reject Father's proposed holding because it would lead to "absurd [and] unjust" results. In re Portal, 2002-NMSC-011, ¶ 5, 132 N.M. 171, 45 P.3d 891 (internal quotation marks and citation omitted). A fundamental principle of our family law jurisprudence is that children should not "be penalized because of the decisions that their parents make[.]" Chatterjee, 2012-NMSC-019, ¶ 33, 280 P.3d 283 ; see Padilla v. Montano, 1993-NMCA-127, ¶ 31, 116 N.M. 398, 862 P.2d 1257 (interpreting the UPA to prevent the child from being punished for the mother's "failure to pursue a [claim] for paternity and support during [the c]hild's minority"). Father's proposed exemption would violate this principle by depriving certain children of financial support based on the action or inaction of their parents. An exemption would unjustly penalize children whose fathers acknowledge paternity but fail to support their children and whose mothers (or other custodians or interested parties) do not immediately petition for child support. Every such child would be deprived of support for all of the time between the father's acknowledgement and the filing of the petition, regardless of the circumstances.

{29} We can imagine numerous hypothetical situations that illustrate the injustice and absurdity of such an approach. We offer two. Consider first a child whose unmarried father and mother acknowledge paternity when the child is born. The father then fails to provide financial support. Due to a serious illness the mother suffers shortly after the child's birth, she is unable to petition for support for six months. Under Father's proposed holding, the child would be deprived of the father's support for six months, and the mother (and perhaps the State) would bear the burden of supporting the child during that time.

{30} Comparing this hypothetical situation to a similar one further confirms the illogic of exempting fathers who have acknowledged paternity. The facts are the same as those described above-with one exception. The father does not acknowledge paternity. Instead, after the mother recovers from her illness, she successfully petitions for an adjudication of paternity. Under Father's proposed interpretation of the NMUPA, a court could order support for this child retroactive to his or her birth but could not order the same support for the child whose father previously acknowledged paternity. We do not believe the NMUPA arbitrarily draws consequential lines between groups of children, making each child's financial support depend on whether or not the child's father chooses to acknowledge paternity before the child's mother chooses to initiate judicial proceedings. See Chatterjee, 2012-NMSC-019, ¶ 33, 280 P.3d 283 (recognizing that children should not be penalized for their parents' choices).

{31} Other arbitrary results would flow from Father's proposed holding. Children whose parents unsuccessfully attack an acknowledgment of paternity would be entitled to retroactive support, but children whose parents execute but do not attack an acknowledgment would not. The NMUPA provides two methods a signatory may use to attack an acknowledgement of paternity to avoid its legal effects: rescission, § 40-11A-307, and challenge, § 40-11A-308. Both methods involve judicial proceedings that "shall be conducted in the same manner as a proceeding to adjudicate parentage." Section 40-11A-309(D). And, as Section 40-11A-636(A) provides, proceedings to adjudicate parentage produce orders adjudicating parentage. It follows that Section 40-11A-636 applies when a party attacks an acknowledgement, whether by rescission or challenge. When an attack fails, and a court determines that an acknowledgment is binding, the court is authorized to enter an order adjudicating a signatory to be the father, an order that under Section 40-11A-636(G) could be accompanied by an order for retroactive support. Father's reading would thus authorize retroactive support for children whose parents acknowledge paternity and later launch failed attacks, but prohibit it for children of parents who execute an acknowledgement and never attack it. Surely the Legislature did not intend to draw such an arbitrary, unjust distinction.

{32} Father's final argument is that applying the NMUPA's retroactive support provision to fathers who have previously acknowledged paternity, as he did, would be inequitable because it would reward mothers and other custodians who fail to promptly petition for child support, as he claims Mother did. But applying the NMUPA's retroactive support provision does not prohibit parents from presenting equitable arguments like Father's. On the contrary, under the NMUPA, "in deciding whether or how long to order retroactive support, the court shall consider[,]" among other things, "whether equitable defenses are applicable." Section 40-11A-636(G). Instead of categorically forbidding or categorically requiring retroactive support, the NMUPA calls for a case-by-case approach to retroactive support issues, including consideration of any equitable defenses.

{33} Adhering to the NMUPA's provisions, the district court gave Father the opportunity to present his equitable argument. The district court weighed the parties' competing arguments and evidence about whether Mother's actions constituted waiver, including Mother's testimony about her efforts to locate Father for the purpose of seeking child support and the parties' conflicting testimony about whether Mother ever asked Father to stop paying child support. The court then made a case-specific decision about whether to order retroactive support, as the NMUPA requires.

CONCLUSION

{34} We affirm the district court's order requiring Father to pay retroactive child support. We remand for further proceedings consistent with this opinion.

{35} IT IS SO ORDERED.

WE CONCUR:

J. MILES HANISEE, Judge

JACQUELINE R. MEDINA, Judge

      The NMUPA came into effect on January 1, 2010, replacing its simultaneously-repealed predecessor statute, the Uniform Parentage Act, NMSA 1978, § 40-11-1 to -23 (1986, as amended through 2004).

      The NMUPA explicitly prohibits the Bureau of Vital Records and Health Statistics from charging a fee for the filing of an acknowledgment of paternity. Section 40-11A-306.

      The NMUPA defines "presumed father" as "a man who, by operation of law pursuant to Section [40-11A]-204 ... is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding[.]" Section 40-11A-102(P).

      The quoted provision of Section 40-11A-636(G) is unique to New Mexico. It was not part of the model legislation from which our Legislature derived certain other provisions of the NMUPA and its predecessor. Nor does this language appear in a statute in any other state.

      Although there may be temporal limitations on awards of retroactive support beyond those explicitly provided for in Section 40-11A-607, the NMUPA's statute of limitations, see § 40-11A-636(G)(2) (providing for equitable defenses to the award of retroactive support); cf. Zabolzadeh, 2009-NMCA-046, ¶ 6, 146 N.M. 125, 207 P.3d 359, we express no opinion on their applicability in cases, where, as here, there has been no prior adjudication of parentage.

      Sisneroz, Zabolzadeh, and Diamond involved two different versions of the UPA. See Diamond, 2011-NMCA-002, ¶ 5, 149 N.M. 133, 245 P.3d 578 (applying UPA as amended through 2004); Zabolzadeh, 2009-NMCA-046, ¶ 1, 146 N.M. 125, 207 P.3d 359 (same); Sisneroz, 1999-NMCA-039, ¶ 1, 126 N.M. 779, 975 P.2d 392 (applying the UPA as amended through 1997). No party invites us to revisit the holdings or reasoning of Sisneroz, Zabolzadeh, and Diamond in light of the changes that came with the NMUPA, and we need not do so to resolve Father's appeal.

      The parties discuss our calendar notice and summary disposition in State ex rel. Human Services Department v. Kindred, 2014 WL 4293013, No. 33,541, mem. op. (N.M. Ct. App. July 1, 2014) (non-precedential), in which we reversed the district court's award of retroactive support. In our notice of proposed summary disposition, we indicated, as Father argues here, that the NMUPA's retroactivity provision does not apply when a father has acknowledged paternity before judicial proceedings regarding paternity or child support begin. We "suggest[ed] that the basis for distinguishing Zabolzadeh that existed in Diamond "-the lack of a "judicial[ ] acknowledge[ment] and adjudica[tion]" of parentage, Diamond, 2011-NMCA-002, ¶ 30, 149 N.M. 133, 245 P.3d 578 -was inapplicable because the NMUPA's equivalency provision "equates an acknowledgment ... to an adjudication of paternity[.]" We therefore proposed "rel[iance] on Zabolzadeh " in reasoning that the NMUPA did not apply because paternity was not in dispute.
      Our ensuing memorandum opinion noted that "[n]o memorandum opposing summary reversal ha[d] been filed, and the time for doing so ha[d] expired." Kindred, No. 33,541, mem. op. ¶ 1. Having now considered the issue with the benefit of full briefing, which we did not have in Kindred , we resolve the issue differently for the reasons we explain in the text of this opinion.

      Despite the informal nature of acknowledgment execution, the court may not even "ratify" an unchallenged acknowledgement. Section 40-11A-310.

      Although Chatterjee interpreted the NMUPA's predecessor, nothing in the NMUPA gives us any reason to believe that our Legislature intended for the NMUPA to apply more narrowly than the UPA.

      Our interpretation of the NMUPA's retroactivity provision avoids the constitutional questions and potential statutory discord that troubled the district court. See Chatterjee, 2012-NMSC-019, ¶ 18, 280 P.3d 283 (interpreting UPA broadly "to avoid an interpretation ... that would raise constitutional concerns"); State v. Smith , 2004-NMSC-032, ¶ 13, 136 N.M. 372, 98 P.3d 1022 ("[O]ur task is to construe statutes in harmony whenever possible."). Concluding that the NMUPA deprives certain children of retroactive support would raise equal protection questions. See U.S Const. amend. XIV, § 1 ; N.M. Const. art. II, § 18. It would also raise questions under the NMUPA's equal rights provision, Section 40-11A-202. See id. ("A child born to parents who are not married to each other has the same rights pursuant to the law as a child born to parents who are married to each other."). We need not answer those questions to decide Father's appeal.

      Neither CSED nor Mother questioned whether waiver is a viable defense. See generally Webb v. Menix, 2004-NMCA-048, ¶¶ 4-11, 135 N.M. 531, 90 P.3d 989 (discussing two kinds of common-law waiver in the child support context); Sisneroz, 1999-NMCA-039, ¶ 11, 126 N.M. 779, 975 P.2d 392 (declining to rule on mother's argument "that she could not bind her child to a waiver of retroactive child support without court appointment of a guardian ad litem and some measure of judicial approval").