New Mexico Adoption Law
New Mexico Territorial Laws
Chapter 32A Children's Code
Chapter 32A, Article 5 Adoptions
32A-5-1. Short title.
Chapter 32 [32A], Article 5 NMSA 1978 may be cited as the "Adoption Act".
History: 1978 Comp., § 32A-5-1, enacted by Laws 1993, ch. 77, § 128.
32A-5-2. Purpose.
The purpose of the Adoption Act [this article] is to:
A. establish procedures to effect a legal relationship between a parent and adopted child that is
identical to that of a parent and biological child;
B. provide for family relationships that will give the adopted child protection and economic security and that will enable the child to develop physically, mentally and emotionally to the maximum extent possible; and
C. ensure due process protections.
History: 1978 Comp., § 32A-5-2, enacted by Laws 1993, ch. 77, § 129.
32A-5-3. Definitions.
As used in the Adoption Act [this article]:
A. "adoptee" means any person who is the subject of an adoption petition;
B. "agency" means any person certified, licensed or otherwise specially empowered by law to place a child in a home in this or any other state for the purpose of adoption;
C. "agency adoption" means an adoption when the child is in the custody of any agency;
D. "acknowledged father" means a father who:
(1) acknowledges paternity of the adoptee pursuant to the putative father registry, as provided for in Section 32A-5-20 NMSA 1978;
(2) is named, with his consent, as the adoptee's father on the adoptee's birth certificate;
(3) is obligated to support the adoptee under a written voluntary promise or pursuant to a court order;
(4) has openly held out the adoptee as his own child; or
(5) has established a custodial, personal or financial relationship with the child. The relationship may be established prior to the child's birth;
E. "alleged father" means an individual whom the biological mother has identified as the biological father, but the individual has not acknowledged paternity or registered with the putative father registry, as provided for in Section 32A-5-20 NMSA 1978;
F. "consent" means a document:
(1) signed by a biological parent whereby the parent grants consent to the adoption of the parent's child by another; or
(2) whereby the department or an agency grants its consent to the adoption of a child in its custody;
G. "counselor" means a person certified by the department to conduct adoption counseling in independent adoptions;
H. "department adoption" means an adoption when the child is in the custody of the department;
I. "former parent" means a parent whose parental rights have been terminated or relinquished;
J. "full disclosure" means mandatory and continuous disclosure by the investigator, agency, department or petitioner throughout the adoption proceeding and after finalization of the adoption of all known, nonidentifying information regarding the adoptee, including:
(1) health history;
(2) psychological history;
(3) mental history;
(4) hospital history;
(5) medication history;
(6) genetic history;
(7) physical descriptions;
(8) social history;
(9) placement history; and
(10) education;
K. "independent adoption" means an adoption when the child is not in the custody of the department or an agency;
L. "investigator" means an individual certified by the department to conduct pre-placement studies and post-placement reports;
M. "office" means a place for the regular transaction of business or performance of particular services;
N. "parental rights" means all rights of a parent with reference to a child, including parental right to control, to withhold consent to an adoption or to receive notice of a hearing on a petition for adoption;
O. "placement" means the selection of a family for an adoptee or matching of a family with an adoptee and physical transfer of the adoptee to the family in all adoption proceedings, except in adoptions filed pursuant to Paragraphs (1) and (2) of Subsection C of Section 32A-5-12 NMSA 1978, in which case placement occurs when the parents consent to the adoption, parental rights are terminated or parental consent is implied;
P. "post-placement report" means a written evaluation of the adoptive family and the adoptee after the adoptee is placed for adoption;
Q. "pre-placement study" means a written evaluation of the adoptive family, the adoptee's biological family and the adoptee;
R. "presumed father" means:
(1) the husband of the biological mother at the time the adoptee was born;
(2) an individual who was married to the mother and either the adoptee was born during the term of the marriage or the adoptee was born within three hundred days after the marriage was terminated by death, annulment, declaration of invalidity or divorce; or
(3) before the adoptee's birth, an individual who attempted to marry the adoptee's biological mother by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid and if the attempted marriage:
(a) could be declared invalid only by a court, the adoptee was born during the attempted marriage or within three hundred days after its termination by death, annulment, declaration of invalidity or divorce; or
(b) is invalid without a court order, the adoptee was born within three hundred days after the termination of cohabitation;
S. "putative father" means the alleged father of the adoptee who has not acknowledged paternity of the adoptee pursuant to the putative father registry, as provided for in Section 32A-5-20 NMSA 1978;
T. "record" means any petition, affidavit, consent or relinquishment form, transcript or notes of testimony, deposition, power of attorney, report, decree, order, judgment, correspondence, document, photograph, invoice, receipt, certificate or other printed, written, videotaped or tape-recorded material pertaining to an adoption proceeding;
U. "relinquishment" means the document by which a parent relinquishes parental rights to the department or an agency to enable placement of the parent's child for adoption;
V. "resident" means a person who, prior to filing an adoption petition, has lived in the state for at least six months immediately preceding filing of the petition for adoption or a person who has become domiciled in the state by establishing legal residence with the intention of maintaining the residency indefinitely; and
W. "stepparent adoption" means an adoption of the adoptee by the adoptee's stepparent when the adoptee has lived with the stepparent for at least one year following the marriage of the stepparent to the custodial parent.
History: 1978 Comp., § 32A-5-3, enacted by Laws 1993, ch. 77, § 130; 1995, ch. 206, § 26.
32A-5-4. Application of the federal Indian Child Welfare Act of 1978.
The protections set forth in the federal Indian Child Welfare Act of 1978, including provisions concerning notice to the Indian child's tribe, transfer to tribal court and placement preferences, apply to all proceedings involving an Indian child under the Adoption Act [this article].
History: 1978 Comp., § 32A-5-4, enacted by Laws 1993, ch. 77, § 131.
32A-5-5. Indian child placement preferences.
A. In any adoptive placement of an Indian child under state law, preference shall be given, in the absence of good cause to the contrary, to a placement with:
(1) a member of the Indian child's extended family;
(2) other members of the child's Indian tribe; or
(3) other Indian families.
B. An Indian child accepted for pre-adoptive placement shall be placed in the least restrictive setting which most approximates a family in which the child's special needs, if any, may be met.
The Indian child shall also be placed within reasonable proximity to the Indian child's home, taking into account special needs of the Indian child. In any foster care or pre-adoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with:
(1) a member of the Indian child's extended family;
(2) a foster home licensed, approved and specified by the Indian child's tribe;
(3) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
(4) an institution for children approved by the Indian tribe or operated by an Indian organization that has a program suitable to meet the Indian child's needs.
C. If the placement preferences of this section are not followed or if the Indian child is placed in an institution, a plan shall be developed to ensure that the Indian child's cultural ties are protected and fostered.
History: 1978 Comp., § 32A-5-5, enacted by Laws 1993, ch. 77, § 132.
32A-5-6. Authority of the department.
A. The department may adopt and promulgate necessary regulations and forms for the administration of the Adoption Act [this article], but the regulations shall not conflict with the provisions of the Adoption Act.
B. The department has the authority to provide or request additional information from an investigator or an attorney representing any person involved in any action filed pursuant to the provisions of the Adoption Act.
C. The department has the authority to intervene in any action filed pursuant to the provisions of the Adoption Act. The intervention shall be effected when legal counsel for the department files a motion for an entry of appearance and an appropriate response.
D. The department shall be served by mail by the attorney for the petitioner with copies of all pleadings filed in any action pursuant to the provisions of the Adoption Act, except for copies of the petition for adoption, the request for placement and the decree of adoption, which shall be served as provided in Section 32A-5-7 NMSA 1978.
History: 1978 Comp., § 32A-5-6, enacted by Laws 1993, ch. 77, § 133; 1995, ch. 206, § 27.
32A-5-7. Clerk of the court; duties.
A. The clerk of the court shall file pleadings captioned pursuant to the provisions of Section 32A-5-9 NMSA 1978. The clerk of the court shall not file incorrectly captioned pleadings.
B. The clerk of the court shall mail a copy of the request for placement to the department within one working day of the request for placement being filed with the court. The attorney for the person requesting placement shall provide to the clerk of the court a copy of the request for placement and a stamped envelope addressed to the department as specified in department regulation.
C. The clerk of the court shall mail a copy of the petition for adoption within one working day of the petition for adoption being filed with the court. The attorney for the petitioner shall provide to the clerk of the court a copy of the petition for adoption and a stamped envelope addressed to the department as specified in department regulation.
D. The clerk of the court shall mail a copy of the decree of adoption to the department within one working day of the entry of the decree of adoption. The attorney for the petitioner shall provide to the clerk of the court a copy of the decree of adoption and a stamped envelope addressed to the department as specified in department regulation.
E. In any adoption involving an Indian child, the clerk of the court shall provide the secretary of the interior with a copy of any decree of adoption or adoptive placement order and other information as required by the federal Indian Child Welfare Act of 1978. The attorney for the petitioner shall provide to the clerk of the court a copy of an adoption decree, an adoptive placement order, any other information required by the federal Indian Child Welfare Act of 1978 and a stamped envelope addressed to the secretary of the interior.
F. The clerk of the court shall forward an application for a birth certificate in an adoptee's new name:
(1) for a person born in the United States, to the appropriate vital statistics office of the place, if known, where the adoptee was born; or
(2) for all other persons, to the state registrar of vital statistics.
History: 1978 Comp., § 32A-5-7, enacted by Laws 1993, ch. 77, § 134; 1995, ch. 206, § 28.
32A-5-8. Confidentiality of records.
A. Unless the petitioner agrees to be contacted or agrees to the release of the petitioner's identity to the parent and the parent agrees to be contacted or agrees to the release of the parent's identity to the petitioner, the attorneys, the court, the agency and the department shall maintain confidentiality regarding the names of the parties, unless the information is already otherwise known. After the petition is filed and prior to the entry of the decree, the records in adoption proceedings shall be open to inspection only by the attorney for the petitioner, the department or the agency, any attorney appointed as a guardian ad litem for the adoptee, any attorney retained by the adoptee or other persons upon order of the court for good cause shown.
B. All records, whether on file with the court, an agency, the department, an attorney or other provider of professional services in connection with an adoption, are confidential and may be disclosed only pursuant to the provisions of the Adoption Act [this article]. All information and documentation provided for the purpose of full disclosure is confidential. Documentation provided for the purpose of full disclosure shall remain the property of the person making full disclosure when a prospective adoptive parent decides not to accept a placement. Immediately upon refusal of the placement, the prospective adoptive parent shall return all full disclosure documentation to the person providing full disclosure. A prospective adoptive parent shall not disclose any confidential information received during the full disclosure process, except as necessary to make a placement decision or to provide information to a child's guardian ad litem or the court.
C. All hearings in adoption proceedings shall be confidential and shall be held in closed court without admittance of any person other than parties and their counsel.
D. Prior to the entry of the decree of adoption, the parent consenting to the adoption or relinquishing parental rights to an agency or the department shall execute an affidavit stating whether the parent will permit contact or the disclosure of the parent's identity to the adoptee or the adoptee's prospective adoptive parents.
History: 1978 Comp., § 32A-5-8, enacted by Laws 1993, ch. 77, § 135; 1995, ch. 206, § 29.
32A-5-9. Caption.
The caption for adoption proceedings shall be styled "In the Matter of the Adoption Petition of (Petitioner's Name)".
History: 1978 Comp., § 32A-5-9, enacted by Laws 1993, ch. 77, § 136.
32A-5-10. Venue.
A petition for adoption may be filed in any county where:
A. a petitioner is a resident;
B. the adoptee is physically present at the time the petition is filed;
C. an office of the agency that placed the adoptee for adoption is located; or
D. the department office from which the child was placed is located.
History: 1978 Comp., § 32A-5-10, enacted by Laws 1993, ch. 77, § 137.
32A-5-11. Who may be adopted; who may adopt.
A. Any child may be adopted.
B. Residents who are one of the following may adopt:
(1) any individual who has been approved by the court as a suitable adoptive parent pursuant to the provisions of the Adoption Act [this article]; and
(2) a married individual without the individual's spouse joining in the adoption if:
(a) the nonjoining spouse is a parent of the adoptee;
(b) the individual and the nonjoining spouse are legally separated; or
(c) the failure of the nonjoining spouse to join in the adoption is excused for reasonable circumstances as determined by the court.
C. Nonresidents who meet the criteria of Subsection B of this section may adopt in New Mexico if the adoptee is a resident of New Mexico or was born in New Mexico but is less than six months of age and was placed by the department or an agency licensed by the state of New Mexico.
History: 1978 Comp., § 32A-5-11, enacted by Laws 1993, ch. 77, § 138.
32A-5-12. Placement for adoption; restrictions; full disclosure.
A. No petition for adoption shall be granted by the court unless the adoptee was placed in the home of the petitioner for the purpose of adoption:
(1) by the department;
(2) by an appropriate public authority of another state;
(3) by an agency; or
(4) pursuant to a court order, as provided in Section 32A-5-13 NMSA 1978.
B. The provisions of Subsection A of this section do not apply to a child in the department's custody who is being adopted pursuant to the provisions of the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978].
C. When an adoptee is not in the custody of the department or an agency, the adoption is an independent adoption and the provisions of this section and Section 32A-5-13 NMSA 1978 shall apply, except when the following circumstances exist:
(1) a stepparent of the adoptee seeks to adopt the adoptee and prior to the filing of the adoption petition, the adoptee has lived with the stepparent for at least one year since the marriage of the stepparent to the custodial parent and the family has received counseling, as provided for in Section 32A-5-22 NMSA 1978;
(2) a relative within the fifth degree of consanguinity to the adoptee or that relative's spouse seeks to adopt the adoptee, and, prior to the filing of the adoption petition, the adoptee has lived with the relative or the relative's spouse for at least one year; or
(3) a person designated to care for the adoptee in the will of the adoptee's deceased parent seeks to adopt the adoptee, and, prior to the filing of the adoption petition, the adoptee has lived with that person for at least one year.
D. All placements shall be made by the department, an agency or the parent of the adoptee pursuant to Section 32A-5-13 NMSA 1978.
E. In all adoptions, prior to any placement being made, the person making the placement shall provide full disclosure.
History: 1978 Comp., § 32A-5-12, enacted by Laws 1993, ch. 77, § 139; 1995, ch. 206, § 30.
32A-5-13. Independent adoptions; request for placement; placement order; certification.
A. When a placement order is required, the petitioner shall file a request with the court to allow the placement. The request shall be filed at least thirty days prior to an adoptive placement in an independent adoption proceeding. An order permitting the placement shall be obtained prior to actual placement.
B. A pre-placement study approving the petitioner as an appropriate adoptive parent shall be filed with the court prior to issuance of a placement order, except as provided in Subsection C of Section 32A-5-12 NMSA 1978.
C. In order for a person to be certified to conduct pre-placement studies, the person shall meet the standards promulgated by the department. If the child is an Indian child, the person shall meet the standards set forth in the federal Indian Child Welfare Act of 1978.
D. The pre-placement study shall be conducted by an agency or a person certified by the department to conduct the study. A person or agency that wants to be certified to perform pre-placement studies shall file documents verifying their qualifications with the department. The department shall publish a list of persons or agencies certified to conduct a pre-placement study. If necessary to defray additional costs associated with compiling the list, the department may assess and charge a reasonable administrative fee to the person or agency listed.
E. When a person or agency that wants to be certified to perform pre-placement studies files false documentation with the department, the person or agency shall be subject to the provisions of Section 32A-5-42 NMSA 1978.
F. A request for placement shall be filed and verified by the petitioner and shall allege:
(1) the full name, age and place and duration of residence of the petitioner and, if married, the place and date of marriage;
(2) the date and place of birth of the adoptee, if known, or the anticipated date and place of birth of the adoptee;
(3) a detailed statement of the circumstances and persons involved in the proposed placement;
(4) if the adoptee has been born, the address where the adoptee is residing at the time of the request for placement;
(5) if the adoptee has been born, the places where the adoptee has lived within the past three years and the names and addresses of the persons with whom the adoptee has lived. If the adoptee is in the custody of an agency or the department, the address shall be the address of the agency or the county office of the department from which the child was placed;
(6) the existence of any court orders that are known to the petitioner and that regulate custody, visitation or access to the adoptee, copies of which shall be attached to the request for placement as exhibits; if copies of any such court orders are unavailable at the time of filing the request for placement, the copies shall be filed prior to the issuance of the order of placement;
(7) that the petitioner desires to establish a parent and child relationship between the petitioner and the adoptee and that the petitioner is a fit and proper person able to care and provide for the adoptee's welfare;
(8) the relationship, if any, of the petitioner to the adoptee;
(9) whether the adoptee is subject to the federal Indian Child Welfare Act of 1978, and, if so, the petition shall allege the actions taken to comply with the federal Indian Child Welfare Act of 1978 and all other allegations required pursuant to that act;
(10) whether the adoption is subject to the Interstate Compact on the Placement of Children and what specific actions have been taken to comply with the Interstate Compact on the Placement of Children [32A-11-1 NMSA 1978]; and
(11) the name, address and telephone number of the agency or investigator who has agreed to do the pre-placement study.
G. The request for placement shall be served on all parties entitled to receive notice of the filing of a petition for adoption, as provided in Section 32A-5-27 NMSA 1978.
H. A hearing and the court decision on the request for placement shall occur within thirty days of the filing of the request. For good cause shown, the court may shorten the time to twenty days in which to schedule the hearing and issue a court decision. In the event of exigent circumstances, including premature birth, the court may shorten the time to five days in which to schedule the hearing and issue a court decision.
I. As part of any court order authorizing placement under this section, the court shall find whether the pre-placement study complies with Section 32A-5-14 NMSA 1978 and that the time requirements concerning placement set forth in this section have been met.
History: 1978 Comp., § 32A-5-13, enacted by Laws 1993, ch. 77, § 140; 1995, ch. 206, § 31.
32A-5-14. Pre-placement study.
A. The pre-placement study shall be performed as prescribed by department regulation and shall include at a minimum the following:
(1) an individual interview with each petitioner;
(2) a joint interview with both petitioners; if a joint interview is not conducted, an explanation shall be provided in the pre-placement study;
(3) a home visit, which shall include an interview with the petitioner's children and any other permanent residents of the petitioner's home;
(4) an interview with the adoptee, if age appropriate;
(5) an individual interview with each of the adoptee's parents; if a parent is not interviewed, an explanation shall be provided in the pre-placement study;
(6) full disclosure to the petitioner;
(7) exploration of the petitioners' philosophy concerning discussion of adoption issues with the adoptee;
(8) the initiation of a criminal records check of each petitioner;
(9) a medical certificate dated not more than one year prior to any adoptive placement assessing the petitioner's health as it relates to the petitioner's ability to care for the adoptee;
(10) a minimum of three letters of reference from individuals named by the petitioner or memoranda of the dates and contents of personal contacts with the references;
(11) a statement of the capacity and readiness of the petitioner for parenthood and the petitioner's emotional and physical health and ability to shelter, feed, clothe and educate the adoptee;
(12) verification of the petitioner's employment, financial resources and marital status;
(13) a report of a medical examination performed on the adoptee within one year prior to the proposed adoptive placement;
(14) a statement of the results of any prior pre-placement study or initiation of a pre-placement study, if any, of the petitioners done by any person; and
(15) the investigator shall attach a copy of proof of certification by the department for the investigator to conduct pre-placement studies, or if the preparer of the pre-placement study is out-of-state, the preparer shall attach a statement setting forth qualifications that are equivalent to those required of an investigator pursuant to the provisions of Section 32A-5-13 NMSA 1978 and department regulations.
B. The pre-placement study shall be completed at the cost of the petitioner.
C. Unless directed by the court, a pre-placement study is not required in cases in which the child is being adopted by a stepparent, a relative or a person named in the child's deceased parent's will pursuant to Section 32A-5-12 NMSA 1978.
D. The pre-placement study shall be filed with the court.
History: 1978 Comp., § 32A-5-14, enacted by Laws 1993, ch. 77, § 141; 1995, ch. 206, § 32.
32A-5-15. Termination of parental rights.
A. The physical, mental and emotional welfare and needs of the child shall be the primary consideration for the termination of parental rights. The court may terminate the rights of the child's parents as provided by the Adoption Act [this article].
B. The court shall terminate parental rights with respect to a child when:
(1) the child has been abandoned by the parents;
(2) the child has been a neglected or abused child and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future; or
(3) the child has been placed in the care of others, including care by other relatives, either by a court order or otherwise, and the following conditions exist:
(a) the child has lived in the home of others for an extended period of time;
(b) the parent-child relationship has disintegrated;
(c) a psychological parent-child relationship has developed between the substitute family and the child;
(d) if the court deems the child of sufficient capacity to express a preference, the child no longer prefers to live with the natural parent;
(e) the substitute family desires to adopt the child; and
(f) a presumption of abandonment created by the conditions described in Subparagraphs (a) through (e) of this paragraph has not been rebutted.
C. A finding by the court that all of the conditions set forth in Subparagraph (a) through (e) of Paragraph (3) of Subsection B of this section exist shall create a rebuttable presumption of abandonment.
D. The termination of parental rights involving an Indian child shall comply with the requirements of the federal Indian Child Welfare Act of 1978.
History: 1978 Comp., § 32A-5-15, enacted by Laws 1993, ch. 77, § 142; 1995, ch. 206, § 33.
32A-5-16. Termination procedures.
A. A proceeding to terminate parental rights may be initiated in connection with or prior to an adoption proceeding. Venue shall be in the court for the county in which the child is physically present or in the county from which the child was placed. The proceeding may be initiated by any of the following:
(1) the department;
(2) an agency; or
(3) any other person having a legitimate interest in the matter, including a petitioner for adoption, the child's guardian, the child's guardian ad litem in another action, an agency, a foster parent, a relative of the child or the child.
B. Any petition for termination of parental rights shall be signed and verified by the petitioner, be filed with the court and set forth:
(1) the date, place of birth and marital status of the child, if known;
(2) the grounds for termination and the facts and circumstances supporting the grounds for termination;
(3) the names and addresses of the person, authorized agency or agency officer to whom custody might be transferred;
(4) the basis for the court's jurisdiction;
(5) that the petition is in contemplation of adoption;
(6) the relationship or legitimate interest of the applicant to the child; and
(7) whether the child is an Indian child and, if so:
(a) the tribal affiliations of the child's parents;
(b) the specific actions taken by the moving party to notify the parents' tribe and the results of the contacts, including the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the Indian tribe shall be attached as exhibits to the petition; and
(c) what specific efforts were made to comply with the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the appropriate Indian tribes.
C. Notice of the filing of the petition, accompanied by a copy of the petition, shall be served by the petitioner on the parents of the child, the child's guardian, the legal custodian of the child, the person with whom the child is residing, any person with whom the child has resided within the past six months and the department. Service shall be in accordance with the Rules of Civil Procedure for the District Courts for the service of process in a civil action in this state, with the exception that the department may be served by certified mail. The notice shall state specifically that the person served must file a written response to the petition within twenty days if the person intends to contest the termination. In any case involving an Indian child, notice shall also be served on the child's Indian tribe pursuant to the federal Indian Child Welfare Act of 1978.
D. If the identification or whereabouts of a parent is unknown, the petitioner shall file a motion for an order granting service by publication supported by the affidavit of the petitioner, the agency or the petitioner's attorney detailing the efforts made to locate the parent. Upon being satisfied that reasonable efforts to locate the parent have been made and that information as to the identity or whereabouts of the parent is still insufficient to effect service in accordance with SCRA, Rule 1-004, the court shall order service by publication.
E. The court shall, upon request, appoint counsel for any parent who is unable to obtain counsel for financial reasons, or, if in the court's discretion, appointment of counsel is required in the interest of justice. Payment for the appointed counsel shall be made by the petitioner.
F. The court shall appoint a guardian ad litem for the child in all contested proceedings for termination of parental rights.
G. Within thirty days after the filing of a petition to terminate parental rights, the petitioner shall request a hearing on the petition. The hearing date shall be at least thirty days after service is effected upon the parent of the child or completion of publication.
H. The grounds for any attempted termination shall be proved by clear and convincing evidence. In any proceeding involving an Indian child, the grounds for any attempted termination shall be proved beyond a reasonable doubt and meet the requirements set forth in the federal Indian Child Welfare Act of 1978.
I. If the court terminates parental rights, it shall appoint a custodian for the child. Upon entering an order terminating the parental rights of a parent, the court may commit the child to the custody of the department, the petitioner or an agency willing to accept custody for the purpose of placing the child for adoption. In any termination proceeding involving an Indian child, the court shall in any termination order make specific findings that the requirements of the federal Indian Child Welfare Act of 1978 were met.
J. A judgment of the court terminating parental rights divests the parent of all legal rights. Termination of parental rights shall not affect the child's right of inheritance through the former parent.
History: 1978 Comp., § 32A-5-16, enacted by Laws 1993, ch. 77, § 143.
32A-5-17. Persons whose consents or relinquishments are required.
A. Consent to adoption or relinquishment of parental rights to the department or an agency licensed by the state of New Mexico shall be required of the following:
(1) the adoptee, if ten years of age or older, except when the court finds that the adoptee does not have the mental capacity to give consent;
(2) the adoptee's mother;
(3) the adoptee's adoptive father;
(4) the presumed father of the adoptee;
(5) the adoptee's acknowledged father;
(6) the department or the agency to whom the adoptee has been relinquished that has placed the adoptee for adoption or the department or the agency that has custody of the adoptee; provided, however, that the court may grant the adoption without the consent of the department or the agency if the court finds the adoption is in the best interests of the adoptee and that the withholding of consent by the department or the agency is unreasonable; and
(7) the guardian of the adoptee's parent when, pursuant to provisions of the Probate Code, that guardian has express authority to consent to adoption.
B. In any adoption involving an Indian child, consent to adoption by the petitioner or relinquishment of parental rights shall be obtained from an "Indian custodian", as required pursuant to the provisions of the federal Indian Child Welfare Act of 1978.
C. A consent or relinquishment executed by a parent who is a minor shall not be subject to avoidance or revocation solely by reason of the parent's minority.
History: 1978 Comp., § 32A-5-17, enacted by Laws 1993, ch. 77, § 144; 1995, ch. 206, § 34.
32A-5-18. Implied consent or relinquishment.
A. A consent to adoption or relinquishment of parental rights required pursuant to the provisions of the Adoption Act [this article] shall be implied by the court if the parent, without justifiable cause, has:
(1) left the adoptee without provision for the child's identification for a period of fourteen days; or
(2) left the adoptee with others, including the other parent or an agency, without provisions for support and without communication for a period of:
(a) three months if the adoptee was under the age of six years at the commencement of the three-month period; or
(b) six months if the adoptee was over the age of six years at the commencement of the six-month period.
B. A court shall not imply consent or relinquishment under this section unless the parent whose relinquishment or consent is to be implied has been served with notice setting forth the time and place of the hearing at which the consent or relinquishment may be implied. The implication of a consent or relinquishment under this section shall have the same effect as though the consent or relinquishment had been given voluntarily.
C. The court shall render its decision on the implied consent prior to proceeding with the adjudicatory hearing.
History: 1978 Comp., § 32A-5-18, enacted by Laws 1993, ch. 77, § 145.
32A-5-19. Persons whose consents or relinquishments are not required.
The consent to adoption or relinquishment of parental rights required pursuant to the provisions of the Adoption Act [this article] shall not be required from:
A. a parent whose rights with reference to the adoptee have been terminated pursuant to law;
B. a parent who has relinquished the child to an agency for an adoption;
C. a biological father of an adoptee conceived as a result of rape or incest;
D. any person who has failed to respond when given notice pursuant to the provisions of Section 32-5-27 [32A-5-27] NMSA 1978; or
E. any putative father who has failed to register with the putative father registry within 90 [ninety] days of the child's birth.
History: 1978 Comp., § 32A-5-19, enacted by Laws 1993, ch. 77, § 146.
32A-5-20. Putative father registry; notice; penalty.
A. The purpose of the putative father registry is to protect the parental rights of fathers who affirmatively assume responsibility for children they may have fathered and to expedite adoptions of children whose biological fathers are unwilling to assume responsibility for their children by registering with the putative father registry or otherwise acknowledging their children. The registry does not relieve the obligation of mothers to identify known fathers.
B. A putative father registry shall be established by the department of health to record the names and addresses of:
(1) any person adjudicated by a court of this state to be the father of a child;
(2) any person who has filed with the registry before or after birth of a child out-of-wedlock, a notice of intent to claim paternity of the child;
(3) any person who has filed with the registry an instrument acknowledging paternity; or
(4) any person adjudicated by a court of another state or territory of the United States to be the father of an out-of-wedlock child, when a certified copy of the court order has been filed with the registry.
C. A person filing a notice of intent to claim paternity of a child or an acknowledgment of paternity shall include in the notice the following:
(1) his name;
(2) his current address;
(3) the mother's name and any other identifying information requested by the department of health; and
(4) the child's name, if known, and any other identifying information requested by the department of health.
D. If the person filing the notice of intent to claim paternity of a child or acknowledgment changes his address, the person shall notify the department of health of his new address in the manner prescribed by the department of health.
E. A person who has filed a notice of intent to claim paternity may at any time revoke a notice of intent to claim paternity previously filed. Upon receipt by the registry of the notice of revocation, the revoked notice of intent to claim paternity shall be deemed a nullity nunc pro tunc.
F. No registration fee shall be charged for registering the intent to claim paternity of a child or acknowledgment of paternity. The department of health may charge a reasonable fee as prescribed by regulation for processing searches of the putative father registry.
G. An unrevoked notice of intent to claim paternity of a child may be introduced in evidence by any party in any proceeding in which that fact may be relevant.
H. The department of health shall, upon request, provide the names and addresses of persons listed with the registry to any court, the department, an agency, the petitioner's attorney or the mother of the child. The information shall not be divulged to any other person, except upon order of the court for good cause shown. If the registry has not received a notice of intent to claim paternity or an acknowledgment of paternity, the department of health shall provide a written statement to that effect to the person making the inquiry. The person making inquiry shall provide a self-addressed, stamped envelope to the department of health for the department's response to the inquiry.
I. The department of health may promulgate any regulations or forms necessary to implement the provisions of this section.
J. Any person who intentionally and unlawfully releases information from the putative father registry to the public or makes any other unlawful use of the information in violation of the provisions of this section is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.
History: 1978 Comp., § 32A-5-20, enacted by Laws 1993, ch. 77, § 147.
32A-5-21. Form of consent or relinquishment.
A. Except when consent or relinquishment is implied, a consent or relinquishment by a parent shall be in writing, signed by the parent consenting or relinquishing and shall state the following:
(1) the date, place and time of execution;
(2) the date and place of birth of the adoptee and any names by which the adoptee has been known;
(3) if a consent to adoption is being executed, the identity of the petitioner, if known, or when the adoption is an independent adoption and the identity of the petitioner is unknown, how the petitioner was selected by the consenting parent;
(4) if a relinquishment of parental rights is being executed, the name and address of the agency or the department;
(5) that the person executing the consent or relinquishment has been counseled, as provided in Section 32-5-22 [32A-5-22] NMSA 1978, by a certified counselor of the person's choice and with this knowledge the person is voluntarily and unequivocally consenting to the adoption of the named adoptee;
(6) that the consenting party has been advised of the legal consequences of the relinquishment or consent either by independent legal counsel or a judge;
(7) that the consent to or relinquishment for adoption cannot be withdrawn;
(8) that the person executing the consent or relinquishment has received or been offered a copy of the consent or relinquishment;
(9) that a counseling narrative has been prepared pursuant to department regulations and is attached to the consent or relinquishment;
(10) that the person who performed the counseling meets the requirements set forth in the Adoption Act [this article]; and
(11) that the person executing the consent or relinquishment waives further notice of the adoption proceedings.
B. The consent of an adoptee, if over the age of ten years, shall be in writing, signed by the adoptee consenting to the adoption and shall state the following:
(1) the date, place and time of execution;
(2) the date and place of birth of the adoptee and any names by which the adoptee has been known;
(3) the name of the petitioner;
(4) that the adoptee has been counseled regarding the consent pursuant to department regulation;
(5) that the adoptee has been advised of the legal consequences of the consent;
(6) that the adoptee is voluntarily and unequivocally consenting to the adoption;
(7) that the consent or relinquishment cannot be withdrawn;
(8) that a counseling narrative has been prepared pursuant to department regulation and is attached to the consent; and
(9) that the person who performed the counseling meets the requirements set forth in the Adoption Act.
C. In cases when the consent or relinquishment is in English and English is not the first language of the consenting or relinquishing person, the person taking the consent or relinquishment shall certify in writing that the document has been read and explained to the person whose consent or relinquishment is being taken in that person's first language, by whom the document was so read and explained and that the meaning and implications of the document are fully understood by the person giving the consent or relinquishment.
D. Unconditional consents or relinquishments are preferred and therefore, conditional consents or relinquishments must be for good cause and approved by the court. However, if the condition is for a specific petitioner or the condition requires the other parent to consent before the decree of adoption is entered, the condition shall be deemed for good cause. In any event, any and all conditions permitted under this subsection shall be met within one hundred eighty days of the execution of the conditional consent or relinquishment or the conclusion of any litigation concerning the petition for adoption. The court may grant an extension of this time for good cause.
E. Agency or department consents required pursuant to the provisions of Section 32-5-17 [32A-5-17] NMSA 1978 shall state the following:
(1) the date, place and time of execution;
(2) the date and place of birth of the adoptee and any names by which the adoptee has been known;
(3) the name of the petitioner; and
(4) the consent of the agency or department.
F. A consent or relinquishment taken by an individual appointed to take consents or relinquishments by an agency shall be notarized, except that a consent or relinquishment signed in the presence of a judge need not be notarized. A hearing before the court for the purpose of taking a consent or relinquishment shall be heard by the court within seven days of request for setting.
G. No consent to adoption or relinquishment of parental rights shall be valid if executed within forty-eight hours after the adoptee's birth. Consent to adoption or relinquishment of parental rights involving an Indian child shall comply with the more stringent requirements of the federal Indian Child Welfare Act of 1978.
H. The requirements of a consent to adoption or relinquishment of parental rights involving an Indian child and the rights of a parent of an Indian child to withdraw the consent or relinquishment shall be governed by the relevant provisions of the federal Indian Child Welfare Act of 1978.
I. A consent to or relinquishment for adoption shall not be withdrawn prior to the entry of a decree of adoption unless the court finds, after notice and opportunity to be heard is afforded to the petitioner, to the person seeking the withdrawal and to the agency placing a child for adoption, that the consent or relinquishment was obtained by fraud. In no event shall a consent or relinquishment be withdrawn after the entry of a decree of adoption.
History: 1978 Comp., § 32A-5-21, enacted by Laws 1993, ch. 77, § 148.
32A-5-22. Persons required to receive counseling; content and form of counseling.
A. Counseling required pursuant to the provisions of this section shall occur prior to:
(1) consent to the adoption; or
(2) the relinquishment of parental rights.
For good cause, the court may waive any or all counseling requirements.
B. Counseling shall be required for the following persons:
(1) the adoptee, if the adoptee is ten years of age or older;
(2) the adoptee's parent who is consenting to the adoption or relinquishing parental rights; and
(3) in a stepparent adoption, when the stepparent and the custodial parent have been married for more than one year, but less than two years:
(a) the custodial parent whose parental rights are not being terminated, but who is consenting to adoption of the adoptee by the stepparent; and
(b) the petitioning stepparent.
C. The content of the counseling shall be as follows:
(1) an adoptee who is ten years of age or older shall be counseled regarding:
(a) the adoptee's understanding of the adoption process, the consequences of the adoption and alternatives to the adoption;
(b) the adoptee's feelings and wishes regarding the adoption;
(c) the adoptee's readiness for the adoption; and
(d) any other issues relevant to the adoption, given the specific circumstances of the adoption;
(2) the adoptee's parent who is consenting to the adoption or relinquishing his parental rights shall be counseled regarding alternatives to and the consequences of adoption; and
(3) in a stepparent adoption, the custodial parent consenting to the adoption of the custodial parent's child by the stepparent and the petitioning stepparent shall be counseled regarding alternatives to adoption, the consequences of the adoption, child custody and child support.
D. The form of the counseling shall be as follows:
(1) adults required to receive counseling shall be counseled individually without the presence of any other person for a minimum of one counseling session; and
(2) for adoptees ten years of age or older and minor biological parents, there shall be a minimum of two separate counseling sessions with at least one of the sessions to be conducted without the presence of the adoptee's parent or guardian, the minor biological parent's parent or guardian or the petitioner.
E. All counseling sessions shall be conducted in the primary language of the person receiving the counseling.
F. A counseling narrative shall be prepared as prescribed by department regulation and shall be attached to the consent or relinquishment form for filing with the court.
G. Counseling may be provided by a counselor, the department or an agency.
H. A person required to receive counseling who is residing outside of New Mexico may receive counseling from a person who possesses qualifications equivalent to a person certified to perform counseling by the state of New Mexico. A person providing counseling in another state or country shall attach a statement specifying that person's qualification to perform counseling to the counseling narrative. A person providing counseling in New Mexico shall attach a copy of that person's certification to the counseling narrative.
History: 1978 Comp., § 32A-5-22, enacted by Laws 1993, ch. 77, § 149; 1995, ch. 206, § 35.
32A-5-23. Persons who may take consents or relinquishments.
A. A consent to adoption or relinquishment of parental rights shall be signed before and approved by:
(1) a judge who has jurisdiction over adoption proceedings, within or without this state, and who is in the jurisdiction in which the child is present or in which the parent resides at the time it is signed; or
(2) an individual appointed by the department to take consents or relinquishments or by an agency licensed by the state, but only when the consenting or relinquishing parent is represented by independent legal counsel and a guardian ad litem has been appointed for any adoptee whose consent is required.
B. No parent may relinquish parental rights to the department or an agency without the department's or the agency's consent.
C. The consent or relinquishment shall be filed with the court in which the petition for adoption has been filed before adjudication of the petition.
History: 1978 Comp., § 32A-5-23, enacted by Laws 1993, ch. 77, § 150; 1995, ch. 206, § 36.
32A-5-24. Relinquishments to the department.
A. When a parent elects to relinquish parental rights to the department, a petition to accept the relinquishment shall be filed, unless an abuse or neglect proceeding is pending. If an abuse or neglect proceeding is pending, the relinquishment shall be heard in the context of that proceeding.
B. In all hearings regarding relinquishment of parental rights to the department, the child shall be represented by a guardian ad litem.
C. If a proposed relinquishment of parental rights is not in contemplation of adoption, the court shall not allow the relinquishment of parental rights unless it finds that good cause exists, that the department has made reasonable efforts to preserve the family and that relinquishment of parental rights is in the child's best interest. Whenever a parent relinquishes his parental rights pursuant to this subsection, the parent shall remain financially responsible for the child. The court may order the parent to pay the reasonable costs of support and maintenance of the child. The court may use the child support guidelines set forth in Section 40-4-11.1 NMSA 1978 to calculate a reasonable payment.
History: 1978 Comp., § 32A-5-24, enacted by Laws 1993, ch. 77, § 151.
32A-5-25. Petition; time of filing.
A. A petition for adoption shall be filed within sixty days of the adoptee's placement into the proposed adoptive home if the adoptee is under the age of one year. If the adoptee is over the age of one year at the time of placement, the petition shall be filed within one hundred twenty days of the placement. For good cause shown, the court may extend those time limits up to an additional one hundred eighty days if a request for extension is filed prior to the expiration of the initial time limits. No further extensions of time shall be granted after the one hundred eighty day extension period, unless an addendum to the pre-placement study is filed in addition to an affidavit establishing good cause for the delay in filing the adoption petition.
B. If a petition is not filed in a timely manner, any person having knowledge of the proceeding shall notify the department, which may proceed as if the adoptee were a neglected child.
History: 1978 Comp., § 32A-5-25, enacted by Laws 1993, ch. 77, § 152; 1995, ch. 206, § 37.
32A-5-26. Petition; content.
A petition for adoption shall be filed and verified by the petitioner and shall allege:
A. the full name, age and place and duration of residence of the petitioner and, if married, the place and date of marriage; the date and place of any prior marriage, separation or divorce; and the name of any present or prior spouse;
B. the date and place of birth of the adoptee, if known;
C. the places where the adoptee has lived within the past three years and the names and addresses of the persons with whom the adoptee has lived, unless the adoptee is in the custody of an agency or the department, in which case the petitioner shall state the name and address of the agency or the department's county office from which the child was placed;
D. the birth name of the adoptee, any other names by which the adoptee has been known and the adoptee's proposed new name; provided that, in the case of an agency adoption, if the petitioner and the biological parents have not agreed to the release of the adoptee's identity to the other person, the birth name and any other names by which the adoptee has been known shall be filed with the court as separate documents at the time the petition is filed;
E. where the adoptee is residing at the time of the filing of the petition and, if the adoptee is not living with the petitioner, when the adoptee will commence living with the petitioner;
F. that the petitioner desires to establish a parent and child relationship with the adoptee and that the petitioner is a fit and proper person able to care and provide for the adoptee's welfare;
G. the existence of any court orders, including placement orders, that are known to the petitioner and that regulate custody, visitation or access to the adoptee, copies of which shall accompany and be attached to the petition as exhibits;
H. the relationship, if any, of the petitioner to the adoptee;
I. the name and address of the placing agency, if any;
J. the names and addresses of all persons from whom consents or relinquishments are required, attaching copies of those obtained and alleging the facts that excuse or imply the consents or relinquishments of the others; provided that if the petitioner has not agreed to the release of his identity to the parent or if the parent has not agreed to the release of his identity to the petitioner, the names and addresses of all persons from whom consents or relinquishments are required shall be filed with the court as separate documents at the time the petition for adoption is filed;
K. whether the adoption will be an open adoption, pursuant to the provisions of Section 32A-5-35 NMSA 1978;
L. when consent of the child's father is alleged to be unnecessary, the results of a search of the putative father registry;
M.whether the adoptee is an Indian child and, if so, the petition shall allege:
(1) the tribal affiliation of the adoptee's parents;
(2) what specific actions have been taken and by whom to notify the parents' tribe and the results of the contact, including the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the Indian tribe shall be attached as exhibits to the petition; and
(3) what specific efforts were made to comply with the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the appropriate Indian tribe;
N. whether the adoption is subject to the Interstate Compact on the Placement of Children [32A-11-1 NMSA 1978] and, if so, a copy of the interstate compact form indicating approval shall be attached as an exhibit to the petition;
O. whether the adoptee is foreign born and, if so, copies of the child's passport and United States visa and of all documents demonstrating that the adoptee is legally free for adoption; and
P. the name, address and telephone number of the agency or individual who has agreed to conduct the post-placement report in accordance with Section 32A-5-31 NMSA 1978, if different than the agency or individual who prepared the pre-placement study in accordance with Section 32A-5-13 NMSA 1978.
History: 1978 Comp., § 32A-5-26, enacted by Laws 1993, ch. 77, § 153; 1995, ch. 206, § 38.
32A-5-27. Notice of petition; form of service; waiver.
A. The petition for adoption shall be served by the petitioner on the following unless it has been previously waived in writing:
(1) the department, by providing a copy to the court clerk for service pursuant to Section 32-5-7 [32A-5-7] NMSA 1978;
(2) any person, agency or institution whose consent or relinquishment is required by Section 32-5-17 [32A-5-17] NMSA 1978, unless the notice has been previously waived;
(3) any acknowledged father of the adoptee;
(4) the legally appointed custodian or guardian of the adoptee;
(5) the spouse of any petitioner who has not joined in the petition;
(6) the spouse of the adoptee;
(7) the surviving parent of a deceased parent of the adoptee;
(8) any person known to the petitioner having custody of or visitation with the adoptee under a court order;
(9) any person in whose home the child has resided for at least two months within the preceding six months;
(10) the agency or individual authorized to investigate the adoption under Section 32-5-13 [32A-5-13] NMSA 1978; and
(11) any other person designated by the court.
B. Notice shall not be served on the following:
(1) alleged or putative fathers; and
(2) any person whose parental rights have been relinquished or terminated.
C. The petitioner shall provide the clerk of the court with a copy of the petition for adoption, to be mailed to the department pursuant to the provisions of Section 32-5-7 [32A-5-7] NMSA 1978.
D. In any adoption in which the adoptee is an Indian child, in addition to the notice required pursuant to Subsection A of this section, notice of pendency of the adoption proceeding shall be served by the petitioner on the appropriate Indian tribe and on any "Indian custodian" pursuant to the provisions of the federal Indian Child Welfare Act of 1978.
E. The notice shall state that the person served shall respond to the petition within twenty days if the person intends to contest the adoption and shall state that the failure to so respond shall be treated as a default and the person's consent to the adoption shall not be required. Provided, however, that this provision shall not apply to an agency, the department or an investigator preparing the post-placement report pursuant to Section 32-5-31 [32A-5-31] NMSA 1978. If an agency, the department or an investigator preparing the post-placement report wants to contest the adoption, they shall notify the court within twenty days after completion of the post-placement report.
F. Service shall be made pursuant to the Rules of Civil Procedure for the District Court. If the whereabouts of a parent, whose consent is required is unknown, the investigator, department or agency charged with investigating the adoption under Section 32-5-13 [32A-5-13] NMSA 1978 shall investigate the whereabouts of the parent and shall file by affidavit the results of the investigation with the court. Upon a finding by the court that information as to the whereabouts of a parent has been sufficiently investigated and is still insufficient to effect service in accordance with the Rules of Civil Procedure for the District Courts, the court shall issue an order providing for service by publication.
G. As to any other person for whom notice is required under Subsection A of this section, service by certified mail, return receipt requested, shall be sufficient. If the service cannot be completed after two attempts, the court shall issue an order providing for service by publication.
H. The notice required by this section may be waived in writing by the person entitled to notice.
I. Proof of service of the notice on all persons for whom notice is required by this section shall be filed with the court before any hearing adjudicating the rights of the persons.
History: 1978 Comp., § 32A-5-27, enacted by Laws 1993, ch. 77, § 154.
32A-5-28. Response to petition.
A. Any person responding to a notice of a petition for adoption shall file a verified response to the petition within the time limits specified in Section 32-5-25 [32A-5-25] NMSA 1978.
B. The verified response shall follow the Rules of Civil Procedure for the District Courts and shall allege:
(1) the existence of any court orders known to the respondent that regulate custody, visitation or access to the adoptee but have not been filed with the court at the time the response is filed and copies of which shall be attached to the response;
(2) the relationship, if any, of the respondent to the adoptee;
(3) whether the adoptee is an Indian child, and, if so, the response shall set forth all allegations required under the federal Indian Child Welfare Act of 1978;
(4) whether the adoption is subject to the Interstate Compact on the Placement of Children [32A-11-1 NMSA 1978]; and
(5) whether the adoption is an open adoption.
History: 1978 Comp., § 32A-5-28, enacted by Laws 1993, ch. 77, § 155.
32A-5-29. Custody pending decree.
Once the adoptee has been placed with the petitioner pursuant to the provisions of the Adoption Act [this article], the petitioner shall have physical custody and control of the adoptee and shall be responsible for the care, maintenance and support of the adoptee, including all necessary medical, dental, psychological or surgical treatment, pending the further order of the court. Should the child be returned to the parents, this section shall not prohibit petitioners from seeking reimbursement for the child's expenses from the parents.
History: 1978 Comp., § 32A-5-29, enacted by Laws 1993, ch. 77, § 156.
32A-5-30. Removal of adoptee from the county.
During the pendency of an adoption proceeding, the adoptee shall not be removed from the county where the petitioner resides at the time of filing a petition for adoption for a period longer than fifteen days without the permission of the court in which the adoption is pending.
History: 1978 Comp., § 32A-5-30, enacted by Laws 1993, ch. 77, § 157; 1995, ch. 206, § 39.
32A-5-31. Post-placement report.
A. An agency or an individual with the credentials set out in Subsection C of Section 32-5-13 [32A-5-13] NMSA 1978 shall file with the court its post-placement report of the prospective adoptive home and the adoptee. The post-placement report shall be completed as prescribed by department regulations and shall include a description of the following:
(1) the expressed desires of the parents as to the kind of adoptive family sought;
(2) the interaction between the adoptee and petitioner;
(3) the adjustment of the adoptee since placement;
(4) the integration and acceptance of the adoptee in the petitioner's family;
(5) the petitioner's ability to meet the physical and emotional needs of the adoptee;
(6) whether the adoptive home is a suitable home for the proposed adoption;
(7) whether the adoption is in the best interest of the adoptee;
(8) the type and frequency of post-placement services given to the petitioner;
(9) any orders, judgments or decrees affecting the adoptee or any children of the petitioner;
(10) any property owned by the adoptee;
(11) full disclosure;
(12) the costs, expenses and professional fees connected with the adoption;
(13) any other circumstances which are relevant to the adoption of the adoptee by the petitioner; and
(14) when the adoptee is placed by an agency, an itemized agency statement of all payments made to any person or entity in connection with the adoption, including the date paid, the amount paid, the payee and the purpose of the payment.
B. The post-placement report shall contain an evaluation of the proposed adoption with a recommendation as to the granting of the petition for adoption and such other information as the court requires.
C. Unless directed by the court, a post-placement report is not required in cases in which the child is being adopted by a stepparent, a relative or a person named in the child's deceased parent's will pursuant to Section 32-5-12 [32A-5-12] NMSA 1978.
D. The investigation for the post-placement report shall be conducted by the department, an agency or an investigator. The department, agency or investigator conducting the post-placement report may be the same as the agency or individual conducting the pre-placement study and they shall be maintained on the same list as that compiled for pre-placement studies under Subsection D of Section 32-5-13 [32A-5-13] NMSA 1978.
E. The department, agency or investigator shall observe the adoptee and interview the petitioner in the petitioner's home as specified in department regulations as soon as possible after the receipt of notice of the action, but in any event within thirty days after receipt of the notice.
F. The department, agency or investigator shall complete and file the written report with the court within sixty days from receipt of notice of the proceeding and shall deliver a copy of the report to the petitioner's attorney or to the petitioner, if not represented by counsel, and to the department. Upon a showing of good cause and after notice to the petitioner, the court may grant extensions of time to the department, agency or investigator to file the post-placement report so long as the report is filed at least thirty days before the hearing for the decree of adoption.
History: 1978 Comp., § 32A-5-31, enacted by Laws 1993, ch. 77, § 158.
32A-5-32. Stepparent adoptions.
A. Any person may adopt his spouse's child in accordance with the provisions of the Adoption Act [this article].
B. When the adoptee has lived with his stepparent for at least one year following the stepparent's marriage to the custodial parent:
(1) placement shall not be required pursuant to Section 32A-5-12 NMSA 1978;
(2) a pre-placement study or post-placement report shall not be required unless ordered by the court;
(3) when the stepparent and the custodial parent have been married for less than two years, counseling shall be required for the stepparent and the custodial parent;
(4) the noncustodial parent shall receive counseling unless counseling is waived;
(5) the adoptee, if ten years of age or older, shall receive counseling;
(6) a criminal records check shall be conducted on a stepparent pursuant to the provisions of Section 32A-5-14 NMSA 1978;
(7) a report of fees and charges shall not be prepared, unless ordered by the court pursuant to Section 32A-5-34 NMSA 1978;
(8) the court may waive the ninety-day period between the filing of the petition for adoption and issuance of the decree of adoption; and
(9) when adopted, the adoptee shall take the name designated in the adoption petition, so long as the petitioner's spouse and the adoptee, if ten years of age or older, consent to the name.
C. When an adoptee has not lived with the stepparent for more than one year following the stepparent's marriage to the custodial parent, the adoption shall proceed as an independent adoption.
History: 1978 Comp., § 32A-5-32, enacted by Laws 1993, ch. 77, § 159; 1995, ch. 206, § 40.
32A-5-33. Appointment of guardian ad litem for the adoptee or other party.
Upon the motion of any party, or upon the court's own motion, the court may appoint a guardian ad litem for the adoptee or for any incompetent or child who is a party to the proceeding. In any contested proceeding, the court shall appoint a guardian ad litem for the adoptee.
History: 1978 Comp., § 32A-5-33, enacted by Laws 1993, ch. 77, § 160.
32A-5-34. Fees and charges; damages.
A. Prior to the final hearing on the petition, the petitioner shall file a full accounting of all disbursements of anything of value made or agreed to be made by or on behalf of the petitioner in connection with the adoption. The accounting report shall be signed under penalty of perjury. The accounting report shall be itemized in detail and shall show the services relating to the adoption or to the placement of the child for adoption that were received by the parents of the child, by the child, or by or on behalf of the petitioner. The report shall also include the dates of each payment, the names and addresses of each attorney, physician, hospital, licensed adoption agency or other person or organization who received any funds or any other thing of value from the petitioner in connection with the adoption or the placement of the child with him, or who participated in any way in the handling of the funds, either directly or indirectly.
B. A prospective adoptive parent, or another person acting on behalf of a prospective adoptive parent, shall make payments for allowed expenses only to third party vendors, as reasonably practical. These payments shall consist of reasonable and actual fees or charges for:
(1) the services of an agency in connection with an adoption;
(2) medical, hospital, nursing, pharmaceutical, traveling or other similar expenses incurred by a mother or the adoptee in connection with the birth or any illness of an adoptee;
(3) reasonable counseling services relating to the adoption;
(4) living expenses of a mother and her dependent children for a reasonable time before the birth of her child and for no more than six weeks after the birth;
(5) expenses incurred for the purposes of full disclosure;
(6) legal services, court costs and traveling or other administrative expenses connected with an adoption, including any legal service performed for a parent who consents to the adoption of a child or relinquishes the child to an agency;
(7) preparation of a pre-placement study and of a post-placement report during the pendency of the adoption proceeding; or
(8) any other service or expense the court finds is reasonably necessary.
C. Any person who makes payments that are not permitted pursuant to the provisions of this section, shall be in violation of this article and subject to the penalties set forth in Section 32-5-42 [32A-5-42] NMSA 1978.
D. Any person who threatens or coerces a parent to complete the relinquishment of parental rights or to complete the consent to an adoption, by demanding repayment of expenses or by any other threat or coercion, shall be liable to the parent for compensatory and punitive damages.
E. The accounting required in Subsection A of this section is not applicable to stepparent adoptions or to adoptions under the provisions of the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978], unless ordered by the court.
F. Nothing in this section shall be construed to permit payment to a woman for conceiving and carrying a child.
History: 1978 Comp., § 32A-5-34, enacted by Laws 1993, ch. 77, § 161.
32A-5-35. Open adoptions.
A. The parents of the adoptee and the petitioner may agree to contact between the parents and the petitioner or contact between the adoptee and one or more of the parents or contact between the adoptee and relatives of the parents. An agreement shall, absent a finding to the contrary, be presumed to be in the best interests of the child and shall be included in the decree of adoption. The contact may include exchange of identifying or nonidentifying information or visitation between the parents or the parents' relatives and the petitioner or visitation between the parents or the parents' relatives and the adoptee.
B. The court may appoint a guardian ad litem for the adoptee. The court shall appoint a guardian ad litem for the adoptee when visitation between the biological family and the adoptee is contemplated. In all adoptions other than those in which the child is placed by the department, the court may assess the parties for the cost of services rendered by the guardian ad litem.
C. In determining whether the agreement is in the adoptee's best interests, the court shall consider the adoptee's wishes, but the wishes of the adoptee shall not control the court's findings as to the best interests of the adoptee.
D. Every agreement entered into pursuant to provisions of this section shall contain a clause stating that the parties agree to the continuing jurisdiction of the court and to the agreement and understand and intend that any disagreement or litigation regarding the terms of the agreement shall not affect the validity of the relinquishment of parental rights, the adoption or the custody of the adoptee.
E. The court shall retain jurisdiction after the decree of adoption is entered for the purpose of hearing motions brought to enforce or modify an agreement entered into pursuant to the provisions of this section. The court shall not grant a request to modify the agreement unless the moving party establishes that there has been a change of circumstances and the agreement is no longer in the adoptee's best interests.
History: 1978 Comp., § 32A-5-35, enacted by Laws 1993, ch. 77, § 162; 1995, ch. 206, § 41.
32A-5-36. Adjudication; disposition; decree of adoption.
A. The court shall conduct hearings on the petition for adoption so as to determine the rights of the parties in a manner that protects confidentiality. The petitioner and the adoptee shall attend the hearing unless the court for good cause waives a party's appearance. Good cause may include burdensome travel requirements.
B. The petitioner shall file all documents required pursuant to the Adoption Act [this article] and serve the department with copies of the same simultaneously with the request for hearing on the petition for adoption.
C. If any person who claims to be the biological father of the adoptee has appeared before the court and filed a written petition or response seeking custody and assuming financial responsibility of the adoptee, the court shall hear evidence as to the merits of the petition. If the court determines by a preponderance of the evidence that the person is not the biological father of the adoptee or that the child was conceived through an act of rape or incest, the petition shall be dismissed and the person shall no longer be a party to the adoption. If the court determines that the person is the biological father of the adoptee, the court shall further determine whether the person qualifies as a presumed or acknowledged father whose consent is necessary for adoption, pursuant to Section 32A-5-17 NMSA 1978. If the court determines that the person is the biological father, but does not qualify as a presumed or acknowledged father, the court shall adjudicate the person's rights pursuant to the provisions of the Adoption Act.
D. If the mother or father of the adoptee has appeared before the court and filed a written petition that alleges the invalidity of the mother's or father's own consent or relinquishment for adoption previously filed in the adoption proceeding, the court shall hear evidence as to the merits of the petition. If the court determines that the allegations have not been proved by a preponderance of the evidence, the petition shall be dismissed. If the court determines that the allegations of the petition are true, the consent or relinquishment for adoption shall be held invalid, and the court shall determine, in the best interests of the adoptee, the person who shall have custody of the child.
E. The petitioner shall present and prove each allegation set forth in the petition for adoption by clear and convincing evidence.
F. The court shall grant a decree of adoption if it finds that the petitioner has proved by clear and convincing evidence that:
(1) the court has jurisdiction to enter a decree of adoption affecting the adoptee;
(2) the adoptee has been placed with the petitioner for a period of ninety days if the adoptee is under the age of one year at the time of placement or for a period of one hundred eighty days if the adoptee is one year of age or older at the time of placement, unless, for good cause shown, the requirement is waived by the court;
(3) all necessary consents, relinquishments, terminations or waivers have been obtained;
(4) the post-placement report required by Section 32A-5-31 NMSA 1978 has been filed with the court;
(5) service of the petition for adoption has been made or dispensed with as to all persons entitled to notice pursuant to provisions of Section 32A-5-27 NMSA 1978;
(6) at least ninety days have passed since the filing of the petition for adoption, except the court may shorten or waive this period of time in cases in which the child is being adopted by a stepparent, a relative or a person named in the child's deceased parent's will pursuant to provisions of Section 32A-5-12 NMSA 1978;
(7) the petitioner is a suitable adoptive parent and the best interests of the adoptee are served by the adoption;
(8) if visitation between the biological family and the adoptee is contemplated, that the visitation is in the child's best interests;
(9) if the adoptee is foreign born, the child is legally free for adoption;
(10) the results of the criminal records check required pursuant to provisions of Section 32A-5-14 NMSA 1978 have been received and considered;
(11) if the adoptee is an Indian child, the requirements set forth in the federal Indian Child Welfare Act of 1978 have been met;
(12) when the child is an Indian child, the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the appropriate Indian tribes have been followed, or if not followed, good cause for noncompliance has been clearly stated and supported, as required by the federal Indian Child Welfare Act of 1978 and provision has been made to ensure that the Indian child's cultural ties to the Indian child's tribe are protected and fostered; and
(13) if the adoption involves the interstate placement of the adoptee, the requirements of the Interstate Compact on the Placement of Children [32A-11-1 NMSA 1978] have been met.
G. In addition to the findings required by Subsection F of this section, the court in any decree of adoption shall make findings with respect to each allegation of the petition.
H. If the court determines that any of the requirements for a decree of adoption pursuant to provisions of Subsections E and F of this section have not been met or that the adoption is not in the best interests of the adoptee, the court shall deny the petition and determine, in the best interests of the adoptee, the person who shall have custody of the child.
I. The decree of adoption shall include the new name of the adoptee and shall not include any other name by which the adoptee has been known or the names of the former parents. The decree of adoption shall order that from the date of the decree, the adoptee shall be the child of the petitioner and accorded the status set forth in Section 32A-5-37 NMSA 1978.
J. A decree of adoption shall be entered within six months of the filing of the petition if the adoptee is under the age of one year at the time of placement or twelve months if the adoptee is one year of age or older at the time of placement, except that the time may be extended by the court upon request of any of the parties or upon the court's own motion for good cause shown.
K. A decree of adoption may not be attacked upon the expiration of one year from the entry of the decree; provided, however, that in any adoption involving an Indian child, the Indian child's parent or Indian custodian may petition the court pursuant to the provisions of the federal Indian Child Welfare Act of 1978 to invalidate the adoption.
L. In any adoption involving an Indian child, the clerk of the court shall provide the secretary of the interior with a copy of any decree of adoption or adoptive placement order and other information as required by the federal Indian Child Welfare Act of 1978.
History: 1978 Comp., § 32A-5-36, enacted by Laws 1993, ch. 77, § 163; 1995, ch. 206, § 42.
32A-5-37. Status of adoptee and petitioner upon entry of decree of adoption.
A. Once adopted, an adoptee shall take a name designated by the petitioner, except in stepparent adoptions. In stepparent adoptions, the adoptee shall take the new name designated by the petitioner in the petition so long as the petitioner's spouse and the child, if over the age of ten years, consent to the new name.
B. After adoption, the adoptee and the petitioner shall sustain the legal relation of parent and child as if the adoptee were the biological child of the petitioner and the petitioner were the biological parent of the child. The adoptee shall have all rights and be subject to all of the duties of that relation, including the right of inheritance from and through the petitioner and the petitioner shall have all rights and be subject to all duties of that relation, including right of inheritance from and through the adoptee.
History: 1978 Comp., § 32A-5-37, enacted by Laws 1993, ch. 77, § 164.
32A-5-38. Birth certificates.
A. Within thirty days after an adoption decree becomes final, the petitioner shall prepare an application for a birth certificate in the new name of the adoptee showing the petitioner as the adoptee's parent and shall provide the application to the clerk of the court. The clerk of the court shall forward the application:
(1) for a person born in the United States, to the appropriate vital statistics office of the place, if known, where the adoptee was born; or
(2) for all other persons, to the state registrar of vital statistics. In the case of the adoption of a person born outside the United States, if requested by the petitioner, the court shall make findings, based on evidence from the petitioner and other reliable state or federal sources, on the date and place of birth of the adoptee. These findings shall be certified by the court and included with the application for a birth certificate.
B. The state registrar of vital statistics shall prepare a birth record in the new name of the adoptee in accordance with the vital statistics laws, but subject to the requirements of the Adoption Act as to the confidentiality of adoption records.
History: 1978 Comp., § 32A-5-38, enacted by Laws 1993, ch. 77, § 165.
32A-5-39. Recognition of foreign decrees.
Every judgment terminating the parent-child relationship or establishing the relationship of parent and child by adoption issued pursuant to due process of law by the tribunals of any other jurisdiction within or without the United States shall be recognized in this state, so that the rights and obligations of the parties as to matters within the jurisdiction of this state shall be determined as though the judgment were issued by the courts of this state.
History: 1978 Comp., § 32A-5-39, enacted by Laws 1993, ch. 77, § 166.
32A-5-40. Post-decree of adoption access to records.
A. After the decree of adoption has been entered, all court files containing records of judicial proceedings conducted pursuant to the provisions of the Adoption Act [this article] and records submitted to the court in the proceedings shall be kept in separate locked files withheld from public inspection. Upon application to the clerk of the court, the records shall be open to inspection by a former parent if the adoptee is eighteen years of age or older, by an adoptee if the adoptee is eighteen years of age or older at the time application is made for inspection, by the adoptive parent if the adoptee is under eighteen years of age at the time application is made for inspection, by the attorney of any party, by any agency that has exercised guardianship over or legal custody of a child who was the adoptee in the particular proceeding or by the department; provided that the identity of the former parents and of the adoptee shall be kept confidential unless the former parents and the adoptee have consented to the release of identity. In the absence of consent to release identity, the inspection shall be limited to the following nonidentifying information:
(1) the health and medical histories of the adoptee's biological parents;
(2) the health and medical history of the adoptee;
(3) the adoptee's general family background, including ancestral information, without name references or geographical designations;
(4) physical descriptions; and
(5) the length of time the adoptee was in the care and custody of persons other than the petitioner.
B. After the entry of the decree of adoption, at any time, a former parent may file with the court, with the placing agency or with the department:
(1) a consent or refusal or an amended consent or refusal to be contacted;
(2) a release of the former parent's identity to the adoptee if the adoptee is eighteen years of age or older or to the adoptive parent if the adoptee is under eighteen years of age; or
(3) information regarding the former parent's location or changes in background information.
C. The consent or refusal referred to in Subsection B of this section shall be honored by the court, the placing agency or the department, unless for good cause the court orders to the contrary.
D. At any time, an adoptee who is eighteen years of age or older may file with the court, a placing agency or the department:
(1) information regarding the adoptee's location; or
(2) a consent or refusal regarding opening of the adoptee's adoption file to the adoptee's former parents.
E. If mutual authorizations for release of identifying information by the parties are not available, an adoptee who is eighteen years of age or older, the biological parents if the adoptee is eighteen years of age or older or the adoptive parents if the adoptee is under the age of eighteen years may file a motion with the court to obtain the release of identifying information for good cause shown. When hearing the motion, the court shall give primary consideration to the best interests of the adoptee, but shall also give due consideration to the interests of the members of the adoptee's former and adoptive families. In determining whether good cause exists for the release of identifying information, the court shall consider:
(1) the reason the information is sought;
(2) any procedure available for satisfying the petitioner's request without disclosing the name or identity of another individual, including appointment of a confidential intermediary to contact the individual and request specific information;
(3) whether the individual about whom identifying information is sought is alive;
(4) the preference, to the extent known, of the adoptee, the adoptive parents, the former parents and other members of the adoptee's former and adoptive families and the likely effect of disclosure on those individuals;
(5) the age, maturity and expressed needs of the adoptee;
(6) the report or recommendation of any individual appointed by the court to assess the request for identifying information; and
(7) any other factor relevant to an assessment of whether the benefit to the adoptee of releasing the information sought will be greater than the benefit to any other individual of not releasing the information.
F. An adoptee shall have the right, for the purpose of enrolling in the adoptee's tribe of origin, to access information kept by the department. Information needed by an adoptee to enroll in his tribe of origin may be requested from the department by the following persons:
(1) the adoptee, after he reaches eighteen years of age;
(2) when the adoptee is a child, his adoptive parent or guardian; or
(3) an adoptee's descendant or, if the adoptee's descendant is a child, an adult representative for the descendant.
G. When the department receives a request for information regarding an adoptee's tribe of origin, the department shall examine its records to determine if the adoptee is of Indian descent. If the department establishes that an adoptee is of Indian descent, the department shall:
(1) provide the requestor with the tribal affiliation of the adoptee's biological parents;
(2) submit to the tribe information necessary to establish tribal enrollment for the adoptee and to protect any rights flowing from the adoptee's tribal relationship; and
(3) provide notice to the requestor of the department's submission of information to the adoptee's tribe.
History: 1978 Comp., § 32A-5-40, enacted by Laws 1993, ch. 77, § 167; 1995, ch. 206, § 43.
32A-5-41. Appointment of confidential intermediary.
A. The court may appoint a confidential intermediary to ascertain whether an individual is willing to be contacted, is willing to release his name or identity or is willing to meet or otherwise communicate about any condition that may affect the moving party's physical or mental health, upon petition to the court by:
(1) an adoptee who is eighteen years of age or older;
(2) an adoptive parent of an adoptee who is less than eighteen years of age; or
(3) an adoptee's former parent, when the adoptee is eighteen years of age or older.
B. The confidential intermediary shall make a reasonable effort to determine if the individual whose identity is sought by the petitioner has filed a signed document authorizing or refusing to authorize the release of the individual's name or identity.
C. When the confidential intermediary finds a signed authorization for a party to be contacted or for the release of identifying information, the intermediary shall release that information to the petitioner. Upon the petitioner's written request, the intermediary may assist the petitioner in locating the individual who authorized the release of identifying information, in ascertaining whether the individual is willing to meet or communicate with the petitioner and in facilitating a meeting or other communication.
D. When the confidential intermediary finds a signed refusal to authorize the release of identifying information, the intermediary shall report this to the petitioner and the court and shall not attempt to locate or contact the individual who has refused to authorize contact or the release of identifying information. The petitioner may then withdraw the petition or request the release of identifying information for good cause shown, pursuant to the provisions of Section 32A-5-40 NMSA 1978.
E. When the confidential intermediary does not find any documents concerning the release of identifying information or if the intermediary finds a document indicating that an individual whose identity is sought by the petitioner is undecided about whether to release identifying information, the intermediary shall make a reasonable search for and discreetly contact the individual to ascertain whether the individual is willing to release information to the petitioner or willing to meet or communicate with the petitioner, whom the intermediary may describe to the individual only in general, nonidentifying terms. When the individual consents in writing to the release of information, the intermediary shall release the information to the petitioner, and upon the mutual written request and consent of the petitioner and the individual, the intermediary shall facilitate a meeting or other communication between the petitioner and the individual. If the individual refuses to authorize the release of information sought by the petitioner, the intermediary shall report this to the petitioner and the court and the petitioner may withdraw the motion or file a motion with the court for an order to release identifying information for good cause shown, pursuant to provisions of Section 32A-5-40 NMSA 1978.
F. When an individual sought by the confidential intermediary is deceased, the intermediary shall report this to the petitioner and the court and, upon the petitioner's request, the court shall determine on the basis of the factors listed in Section 32A-5-40 NMSA 1978 whether good cause exists to release identifying information about the individual to the petitioner.
G. When an individual sought by the confidential intermediary cannot be located within a year, the intermediary shall report this to the petitioner and the court. The court may authorize an additional search for a specified period of time or determine on the basis of the factors listed in Section 32A-5-40 NMSA 1978 whether good cause exists to release identifying information about the individual to the petitioner.
H. A confidential intermediary may charge the petitioner for actual expenses incurred in providing a service requested under this section. Upon motion by the intermediary, the court may authorize a reasonable fee in addition to the expenses.
I. A confidential intermediary shall complete training provided by the department or any other entity approved by the court and shall file an oath of confidentiality in every court in which the intermediary expects to serve.
J. The confidential intermediary oath shall state:
"I,________________________, signing under penalty of perjury, affirm that I have completed the requisite training for a confidential intermediary in this state.
I will not disclose to the petitioner, directly or indirectly, any identifying information in sealed records except under the conditions specified in this section.
I will conduct a reasonable search for an individual being sought and make a discreet and confidential inquiry as to whether the individual consents to the release of identifying or medical information to the petitioner or to meeting or communicating with the petitioner. I will report to the petitioner or the court the results of my search and inquiry, along with any signed request or consent I receive from the individual.
If the individual and the petitioner request and consent in writing to meet or communicate with each other, I will act in accordance with the instructions of the petitioner or the court to facilitate any meeting or communication between them.
I will not charge or accept any fee for my services except for reimbursement from the petitioner for actual expenses incurred in performing my services or as authorized by the court.
I recognize that unauthorized release of information is a violation of the Adoption Act [this article] and subjects me to penalties pursuant to the provisions of Section 32A-5-42 NMSA 1978 and may subject me to being found in contempt of court with penalties, dismissal by the court and civil liability."
History: 1978 Comp., § 32A-5-41, enacted by Laws 1993, ch. 77, § 168; 1995, ch. 206, § 44.
32A-5-42. Penalties.
A. Any person other than an agency who, in the regular course of business, selects an adoptive family for a prospective adoptee or arranges for the selection is guilty of a misdemeanor and subject to imprisonment in the county jail for a definite term of less than one year or to the payment of a fine of not more than one thousand dollars ($1,000), or to both, the penalties to be in the discretion of the judge, for each occurrence; provided, that the exchange of information between persons regarding the existence of a potential adoptee or potential adoptive family shall not be a violation of this section.
B. Any person who violates any provision of the Adoption Act [this article] is guilty of a misdemeanor and subject to imprisonment in the county jail for a definite term of less than one year or to the payment of a fine of not more than one thousand dollars ($1,000), or both, the penalties to be in the discretion of the judge, for each occurrence.
History: 1978 Comp., § 32A-5-42, enacted by Laws 1993, ch. 77, § 169.
32A-5-43. Purpose of subsidized adoptions.
It is the purpose of Sections 32-5-43 [32A-5-43] through 32-5-45 [32A-5-45] NMSA 1978 to encourage and promote the placement of children who are difficult to place in permanent homes through a subsidized program within the social services division of the department.
History: 1978 Comp., § 32A-5-43, enacted by Laws 1993, ch. 77, § 170.
32A-5-44. Eligibility for subsidized adoptions.
A. The social services division of the department may make payments to adoptive parents or to medical vendors on behalf of a child placed for adoption by the division or by a child placement agency licensed by the division when the division determines that:
(1) the child is difficult to place; and
(2) the adoptive family is capable of providing the permanent family relationship needed by the child in all respects, except that the needs of the child are beyond the economic resources and ability of the family.
B. As used in Sections 32-5-43 [32A-5-43] through 32-5-45 [32A-5-45] NMSA 1978, a "difficult to place child" means a child who is physically or mentally handicapped or emotionally disturbed or who is in special circumstances by virtue of age, sibling relationship or racial background.
History: 1978 Comp., § 32A-5-44, enacted by Laws 1993, ch. 77, § 171.
32A-5-45. Administration of subsidized adoptions.
A. The social services division of the department shall promulgate all necessary regulations for the administration of the program of subsidized adoptions or placement with permanent guardians.
B. Subsidy payments may include payments to vendors for medical and surgical expenses and payments to the adoptive parents or permanent guardians for maintenance and other costs incidental to the adoption, care, training and education of the child. The payments in any category of assistance shall not exceed the cost of providing the assistance in foster care and shall not be made after the child reaches eighteen years of age.
C. A written agreement between the adoptive family or permanent guardians and the social services division shall precede the decree of adoption or permanent guardianship. The agreement shall incorporate the terms and conditions of the subsidy plan based on the individual needs of the child within the permanent family. In cases of subsidies that continue for more than one year, there shall be an annual redetermination of the need for a subsidy. The social services division shall develop an appeal procedure whereby a permanent family may contest a division determination to deny, reduce or terminate a subsidy.
History: 1978 Comp., § 32A-5-45, enacted by Laws 1993, ch. 77, § 172.
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