HOUSE FLOOR SUBSTITUTE FOR
HOUSE BILL 387
52nd legislature - STATE OF NEW MEXICO - first session, 2015
AN ACT
RELATING TO PARENTAL RIGHTS; PROVIDING FOR THE TERMINATION OR PERMANENT SUSPENSION OF PARENTAL RIGHTS WHEN CRIMINAL SEXUAL PENETRATION RESULTS IN CONCEPTION OF A CHILD; AMENDING THE ADOPTION ACT; PROVIDING A PENALTY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of Chapter 40 NMSA 1978 is enacted to read:
"[NEW MATERIAL] CONCEPTION RESULTING FROM CRIMINAL SEXUAL PENETRATION--TERMINATION OF PARENTAL RIGHTS OR PERMANENT SUSPENSION OF LEGAL AND PHYSICAL CUSTODY AND VISITATION RIGHTS.--
A. As used in this section:
(1) "child" means a child conceived as a result of criminal sexual penetration as found pursuant to Subsection B of this section;
(2) "criminal sexual penetration" means criminal sexual penetration pursuant to the laws of this state or an offense pursuant to the laws of another jurisdiction, territory or possession of the United States or an Indian nation, tribe or pueblo that is equivalent to criminal sexual penetration pursuant to the laws of this state;
(3) "petitioner" means a woman who became pregnant as a result of criminal sexual penetration as found pursuant to Subsection B of this section; and
(4) "respondent" means the biological father of a child whose rights a petitioner seeks to terminate or permanently suspend pursuant to this section and who is not legally married to the petitioner.
B. In a proceeding pursuant to this section, the court shall find whether clear and convincing evidence exists that the child was conceived as a result of criminal sexual penetration. For the purposes of this section, a court need not determine that a respondent was convicted of criminal sexual penetration.
C. If the court finds that the child was conceived as a result of criminal sexual penetration, the court shall terminate or permanently suspend legal and physical custody and visitation rights of the respondent with respect to the child if, having considered the relationship between the child's biological parents and the circumstances of the child's conception, the court finds that termination of parental rights or permanent suspension of legal and physical custody and visitation rights is necessary to protect the physical, mental or emotional welfare of the petitioner and is in the best interest of the child.
D. Proceedings to terminate parental rights or permanently suspend legal and physical custody and visitation rights that involve a child subject to the federal Indian Child Welfare Act of 1978 shall comply with the requirements of that act.
E. A petition to terminate parental rights or permanently suspend legal and physical custody and visitation rights pursuant to this section shall be filed within six years from the date the petitioner knew or had reason to know the identity of the perpetrator of the criminal sexual penetration that resulted in the pregnancy.
F. A petition for termination of parental rights or permanent suspension of legal and physical custody and visitation rights filed pursuant to this section shall set forth:
(1) whether the petitioner seeks termination of the respondent's parental rights or permanent suspension of the respondent's legal and physical custody and visitation rights;
(2) the facts and circumstances of the child's conception;
(3) the date and place of birth of the child;
(4) the name of the respondent and, if known, the address of the respondent;
(5) the name and address of the person who would retain legal custody of the child upon termination of the respondent's parental rights or permanent suspension of legal and physical custody and visitation rights; and
(6) whether the child is subject to the federal Indian Child Welfare Act of 1978 and, if so:
(a) the tribal affiliations of the child's biological parents;
(b) the specific actions taken by the petitioner to notify the child's biological parents' tribes and the results of the contacts, including the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the tribes shall be attached as exhibits to the petition; and
(c) the specific efforts 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.
G. Notice of the filing of the petition, accompanied by a copy of the petition, shall be served by the petitioner on all other parties, including, if applicable, the foster parent, the person providing care for the child with whom the child is residing, the custodian of the child, any person appointed to represent any party and any other person the court orders. Service shall be in accordance with the Rules of Civil Procedure for the District Courts. The notice shall state specifically that the person served shall file a written response to the motion within thirty days if the person intends to contest the termination of parental rights or permanent suspension of legal and physical custody and visitation rights. In any case involving a child subject to the federal Indian Child Welfare Act of 1978, notice shall also be sent by certified mail to the tribes of the child's biological parents and upon any "Indian custodian", as that term is defined in 25 U.S.C. Section 1903(6).
H. When a petition to terminate parental rights or permanently suspend legal and physical custody and visitation rights is filed, the petitioner shall request a hearing on the petition. The hearing date shall be at least thirty days, but no more than sixty days, after service is effected upon the parties entitled to service.
I. If there is significant cause, the court may appoint a guardian ad litem for a child who is the subject of a proceeding pursuant to this section. When the court appoints a guardian ad litem, the court shall make a record of its reasons for the appointment. A party to the proceeding or an employee or representative of a party shall not be appointed as guardian ad litem.
J. The grounds for a termination of parental rights or permanent suspension of legal and physical custody and visitation rights shall be proved by clear and convincing evidence, except for a proceeding involving a child subject to the federal Indian Child Welfare Act of 1978.
K. In a proceeding to terminate parental rights or permanently suspend legal and physical custody and visitation rights that involves a child subject to the federal Indian Child Welfare Act of 1978:
(1) the grounds for a termination of parental rights or permanent suspension of legal and physical custody and visitation rights shall be proved beyond a reasonable doubt and shall meet the requirements set forth in 25 U.S.C. Section 1912(f); and
(2) the court shall, in an order terminating parental rights or permanently suspending legal and physical custody and visitation rights, make specific findings that the requirements of that act have been met.
L. A judgment of the court permanently suspending a respondent's legal and physical custody and visitation rights pursuant to this section shall provide:
(1) that the respondent has no rights to legal or physical custody of or visitation with the child;
(2) that the respondent has no right to consent to or receive notice of a subsequent adoption proceeding concerning the child;
(3) that the judgment does not affect the ability of the petitioner, the child or the state to seek child support for the child from the respondent;
(4) that the judgment does not affect the child's right of inheritance from and through the respondent;
(5) that the respondent has no right of inheritance from the child; and
(6) the name of the person who retains custody of the child.
M. A judgment of the court terminating a respondent's parental rights pursuant to this section shall provide:
(1) that the respondent has no rights to legal or physical custody of or visitation with the child;
(2) that the respondent has no right to consent to or receive notice of a subsequent adoption proceeding concerning the child;
(3) that the respondent is divested of all legal rights and privileges with respect to the child;
(4) that no party may seek child support for the child from the respondent; and
(5) the name of the person who retains custody of the child.
N. The court shall issue appropriate orders within thirty days after the hearing on a petition filed pursuant to this section.
O. The statements made in a proceeding pursuant to this section shall be unavailable for use in any other legal proceeding or action.
P. All records or information concerning a party to a proceeding to terminate parental rights or permanently suspend legal and physical custody and visitation rights pursuant to this section shall be confidential and closed to the public. The records and information shall be disclosed only to the parties and any other person or entity, having a legitimate interest in the case or the work of the court, by order of the court.
Q. Whoever intentionally and unlawfully releases any information or records closed to the public pursuant to this section or releases or makes other unlawful use of records in violation of this section is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.
R. Nothing in this section shall affect the requirements set forth in the Abuse and Neglect Act or the Adoption Act as those acts may relate to a child that is the subject of a proceeding pursuant to this section."
SECTION 2. Section 32A-5-19 NMSA 1978 (being Laws 1993, Chapter 77, Section 146, as amended) is amended to read:
"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 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] criminal sexual penetration, as defined in Section 30-9-11 NMSA 1978, or incest, as defined in Section 30-10-3 NMSA 1978;
D. a biological parent of an adoptee whose legal and physical custody and visitation rights with respect to the adoptee have been permanently suspended or whose parental rights with respect to the adoptee have been terminated pursuant to Section 1 of this 2015 act;
[D.] E. a person who has failed to respond when given notice pursuant to the provisions of Section 32A-5-27 NMSA 1978; or
[E.] F. an alleged father who has failed to register with the putative father registry within ten days of the child's birth and is not otherwise the acknowledged father."
SECTION 3. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.
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