HOUSE BILL 277

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Javier Martínez

AN ACT

RELATING TO KINSHIP GUARDIANSHIP; REMOVING THE REQUIREMENT TO STATE MARITAL STATUS OF THE CHILD; UPDATING THE PROCESS OF OBTAINING A HEARING DATE; CHANGING THE STANDARD OF PROOF IN INDIAN CHILD WELFARE ACT CASES TO COMPORT WITH THE FEDERAL LAW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 40-10B-5 NMSA 1978 (being Laws 2001, Chapter 167, Section 5) is amended to read:

     "40-10B-5. PETITION--WHO MAY FILE--CONTENTS.--

          A. A petition seeking the appointment of a guardian pursuant to the Kinship Guardianship Act may be filed only by:

                (1) a kinship caregiver;

                (2) a caregiver, who has reached [his

twenty-first birthday] the age of twenty-one, with whom no kinship with the child exists, who has been nominated to be guardian of the child by the child, and the child has reached [his fourteenth birthday] the age of fourteen; or

                (3) a caregiver designated formally or informally by a parent in writing if the designation indicates on its face that the parent signing understands:

                     (a) the purpose and effect of the guardianship;

                     (b) that [he] the parent has the right to be served with the petition and notices of hearings in the action; and

                     (c) that [he] the parent may appear in court to contest the guardianship.

          B. A petition seeking the appointment of a guardian shall be verified by the petitioner and allege the following with respect to the child:

                (1) facts that, if proved, will meet the requirements of Subsection B of Section [8 of the Kinship Guardianship Act] 40-10B-8 NMSA 1978;

                (2) the date and place of birth of the child, if known, and if not known, the reason for the lack of knowledge;

                (3) the legal residence of the child and the place where [he] the child resides, if different from the legal residence;

                [(4) the marital status of the child;

                (5)] (4) the name and address of the petitioner;

                [(6)] (5) the kinship, if any, between the petitioner and the child;

                [(7)] (6) the names and addresses of the parents of the child;

                [(8)] (7) the names and addresses of persons having legal custody of the child;

                [(9)] (8) the existence of any matters pending involving the custody of the child;

                [(10)] (9) a statement that the petitioner agrees to accept the duties and responsibilities of guardianship;

                [(11)] (10) the existence of any matters pending pursuant to the provisions of Chapter 32A, Article 4 NMSA 1978 and, if so, a statement that the children, youth and families department consents to the relief requested in the petition;

                [(12)] (11) whether the child is subject to provisions of the federal Indian Child Welfare Act of 1978 and, if so:

                     (a) the tribal affiliations of the child's parents; and

                     (b) the specific actions taken by the petitioner to notify the parents' tribes and the results of the contacts, including the names, addresses, titles and telephone numbers of the persons contacted, and copies of correspondence with the tribe; and

                [(13)] (12) other facts in support of the guardianship sought."

     SECTION 2. Section 40-10B-6 NMSA 1978 (being Laws 2001, Chapter 167, Section 6) is amended to read:

     "40-10B-6. SERVICE OF PETITION--NOTICE--PARTIES.--

          A. [At the time of filing the petition, the petitioner shall obtain an order of the court setting] The court shall set a date for hearing on the petition, which date shall be no less than thirty and no more than ninety days from the date of filing the petition.

          B. The petition and a notice of the hearing shall be served upon:

                (1) the children, youth and families department if there is any pending matter relating to the child pursuant to the provisions of Chapter 32A, Article 4 NMSA 1978;

                (2) the child if [he] the child has reached [his fourteenth birthday] the age of fourteen;

                (3) the parents of the child;

                (4) a person having custody of the child or visitation rights pursuant to a court order; and

                (5) if the child is an Indian child as defined in the federal Indian Child Welfare Act of 1978, the appropriate Indian tribe and any "Indian custodian", together with a notice of pendency of the guardianship proceedings, pursuant to the provisions of the federal Indian Child Welfare Act of 1978.

          C. Service of process required by Subsection A of this section shall be made in accordance with the requirements for giving notice of a hearing pursuant to Subsection A of Section 45-1-401 NMSA 1978.

          D. The persons required to be served pursuant to Subsection B of this section have a right to file a response as parties to this action. Other persons may intervene pursuant to Rule 1-024 NMRA."

     SECTION 3. Section 40-10B-8 NMSA 1978 (being Laws 2001, Chapter 167, Section 8) is amended to read:

     "40-10B-8. HEARING--ELEMENTS OF PROOF--BURDEN OF PROOF--JUDGMENT--CHILD SUPPORT.--

          A. Upon hearing, if the court finds that a qualified person seeks appointment, the venue is proper, the required notices have been given, the requirements of Subsection B of this section have been proved and the best interests of the minor will be served by the requested appointment, it shall make the appointment. In other cases, the court may dismiss the proceedings or make any other disposition of the matter that will serve the best interests of the minor.

          B. A guardian may be appointed pursuant to the Kinship Guardianship Act only if:

                (1) a parent of the child is living and has consented in writing to the appointment of a guardian and the consent has not been withdrawn;

                (2) a parent of the child is living but all parental rights in regard to the child have been terminated or suspended by prior court order; or

                (3) the child has resided with the petitioner without the parent for a period of ninety days or more immediately preceding the date the petition is filed and a parent having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance and supervision for the child or there are extraordinary circumstances; and

                (4) no guardian of the child is currently appointed pursuant to a provision of the Uniform Probate Code.

          C. The burden of proof shall be by clear and convincing evidence [except that in those cases involving an Indian child as defined in the federal Indian Child Welfare Act of 1978, the burden of proof shall be proof beyond a reasonable doubt].

          D. As part of a judgment entered pursuant to the Kinship Guardianship Act, the court may order a parent to pay the reasonable costs of support and maintenance of the child that the parent is financially able to pay. The court may use the child support guidelines set forth in Section 40-4-11.1 NMSA 1978 to calculate a reasonable payment.

          E. The court may order visitation between a parent and child to maintain or rebuild a parent-child relationship if the visitation is in the best interests of the child."

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