0001| SENATE BILL 1160 | 0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0003| INTRODUCED BY | 0004| LEONARD LEE RAWSON | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO PARENTAL RIGHTS; PROVIDING JUDICIAL DISCRETION | 0012| REGARDING NOTICE AND PUBLICATION IN CERTAIN CIRCUMSTANCES. | 0013| | 0014| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0015| Section 1. Section 32A-5-16 NMSA 1978 (being Laws 1993, | 0016| Chapter 77, Section 143) is amended to read: | 0017| "32A-5-16. TERMINATION PROCEDURES.-- | 0018| A. A proceeding to terminate parental rights may be | 0019| initiated in connection with or prior to an adoption | 0020| proceeding. Venue shall be in the court for the county in | 0021| which the child is physically present or in the county from | 0022| which the child was placed. The proceeding may be initiated by | 0023| any of the following: | 0024| (1) the department; | 0025| (2) an agency; or | 0001| (3) any other person having a legitimate | 0002| interest in the matter, including a petitioner for adoption, | 0003| the child's guardian, the child's guardian ad litem in another | 0004| action, an agency, a foster parent, a relative of the child or | 0005| the child. | 0006| B. Any petition for termination of parental rights | 0007| shall be signed and verified by the petitioner, be filed with | 0008| the court and set forth: | 0009| (1) the date, place of birth and marital | 0010| status of the child, if known; | 0011| (2) the grounds for termination and the facts | 0012| and circumstances supporting the grounds for termination; | 0013| (3) the names and addresses of the person, | 0014| authorized agency or agency officer to whom custody might be | 0015| transferred; | 0016| (4) the basis for the court's jurisdiction; | 0017| (5) that the petition is in contemplation of | 0018| adoption; | 0019| (6) the relationship or legitimate interest of | 0020| the applicant to the child; and | 0021| (7) whether the child is an Indian child and, | 0022| if so: | 0023| (a) the tribal affiliations of the | 0024| child's parents; | 0025| (b) the specific actions taken by the | 0001| moving party to notify the parents' tribe and the results of | 0002| the contacts, including the names, addresses, titles and | 0003| telephone numbers of the persons contacted. Copies of any | 0004| correspondence with the Indian tribe shall be attached as | 0005| exhibits to the petition; and | 0006| (c) what specific efforts were made to | 0007| comply with the placement preferences set forth in the federal | 0008| Indian Child Welfare Act of 1978 or the placement preferences | 0009| of the appropriate Indian tribes. | 0010| C. Notice of the filing of the petition, | 0011| accompanied by a copy of the petition, shall be served by the | 0012| petitioner on the parents of the child, the child's guardian, | 0013| the legal custodian of the child, the person with whom the | 0014| child is residing, any person with whom the child has resided | 0015| within the past six months and the department. Service shall | 0016| be in accordance with the Rules of Civil Procedure for the | 0017| District Courts for the service of process in a civil action in | 0018| this state, with the exception that the department may be | 0019| served by certified mail. The notice shall state specifically | 0020| that the person served [must] shall file a written response | 0021| to the petition within twenty days if the person intends to | 0022| contest the termination. In any case involving an Indian | 0023| child, notice shall also be served on the child's Indian tribe | 0024| pursuant to the federal Indian Child Welfare Act of 1978. | 0025| D. If the identification or whereabouts of a parent | 0001| is unknown, the petitioner shall file a motion for an order | 0002| granting service by publication supported by the affidavit of | 0003| the petitioner, the agency or the petitioner's attorney | 0004| detailing the efforts made to locate the parent. Upon being | 0005| satisfied that reasonable efforts to locate the parent have | 0006| been made and that information as to the identity or | 0007| whereabouts of the parent is still insufficient to effect | 0008| service in accordance with SCRA, Rule 1-004, the court | 0009| [shall] may order service by publication. | 0010| E. The court shall, upon request, appoint counsel | 0011| for any parent who is unable to obtain counsel for financial | 0012| reasons or if, in the court's discretion, appointment of | 0013| counsel is required in the interest of justice. Payment for | 0014| the appointed counsel shall be made by the petitioner. | 0015| F. The court shall appoint a guardian ad litem for | 0016| the child in all contested proceedings for termination of | 0017| parental rights. | 0018| G. Within thirty days after the filing of a | 0019| petition to terminate parental rights, the petitioner shall | 0020| request a hearing on the petition. The hearing date shall be | 0021| at least thirty days after service is effected upon the parent | 0022| of the child or completion of publication. | 0023| H. The grounds for any attempted termination shall | 0024| be proved by clear and convincing evidence. In any proceeding | 0025| involving an Indian child, the grounds for any attempted | 0001| termination shall be proved beyond a reasonable doubt and meet | 0002| the requirements set forth in the federal Indian Child Welfare | 0003| Act of 1978. | 0004| I. If the court terminates parental rights, it | 0005| shall appoint a custodian for the child. Upon entering an | 0006| order terminating the parental rights of a parent, the court | 0007| may commit the child to the custody of the department, the | 0008| petitioner or an agency willing to accept custody for the | 0009| purpose of placing the child for adoption. In any termination | 0010| proceeding involving an Indian child, the court shall, in any | 0011| termination order, make specific findings that the requirements | 0012| of the federal Indian Child Welfare Act of 1978 were met. | 0013| J. A judgment of the court terminating parental | 0014| rights divests the parent of all legal rights. Termination of | 0015| parental rights shall not affect the child's right of | 0016| inheritance through the former parent." | 0017| Section 2. Section 32A-5-27 NMSA 1978 (being Laws 1993, | 0018| Chapter 77, Section 154) is amended to read: | 0019| "32A-5-27. NOTICE OF PETITION--FORM OF SERVICE--WAIVER.-- | 0020| A. The petition for adoption shall be served by the | 0021| petitioner on the following, unless it has been previously | 0022| waived in writing: | 0023| (1) the department, by providing a copy to the | 0024| court clerk for service pursuant to Section [32-5-7] 32A-5- | 0025| 7 NMSA 1978; | 0001| (2) any person, agency or institution whose | 0002| consent or relinquishment is required by Section [32-5-17] | 0003| 32A-5-17 NMSA 1978, unless the notice has been previously | 0004| waived; | 0005| (3) any acknowledged father of the adoptee; | 0006| (4) the legally appointed custodian or | 0007| guardian of the adoptee; | 0008| (5) the spouse of any petitioner who has not | 0009| joined in the petition; | 0010| (6) the spouse of the adoptee; | 0011| (7) the surviving parent of a deceased parent | 0012| of the adoptee; | 0013| (8) any person known to the petitioner having | 0014| custody of or visitation with the adoptee under a court order; | 0015| (9) any person in whose home the child has | 0016| resided for at least two months within the preceding six | 0017| months; | 0018| (10) the agency or individual authorized to | 0019| investigate the adoption under Section [32-5-13] 32A-5-13 | 0020| NMSA 1978; and | 0021| (11) any other person designated by the court. | 0022| B. Notice shall not be served on the following: | 0023| (1) alleged or putative fathers; and | 0024| (2) any person whose parental rights have been | 0025| relinquished or terminated. | 0001| C. The petitioner shall provide the clerk of the | 0002| court with a copy of the petition for adoption, to be mailed to | 0003| the department pursuant to the provisions of Section | 0004| [32-5-7] 32A-5-7 NMSA 1978. | 0005| D. In any adoption in which the adoptee is an | 0006| Indian child, in addition to the notice required pursuant to | 0007| Subsection A of this section, notice of pendency of the | 0008| adoption proceeding shall be served by the petitioner on the | 0009| appropriate Indian tribe and on any "Indian custodian" pursuant | 0010| to the provisions of the federal Indian Child Welfare Act of | 0011| 1978. | 0012| E. The notice shall state that the person served | 0013| shall respond to the petition within twenty days if the person | 0014| intends to contest the adoption and shall state that the | 0015| failure to so respond shall be treated as a default and the | 0016| person's consent to the adoption shall not be required. | 0017| Provided, however, that this provision shall not apply to an | 0018| agency, the department or an investigator preparing the post- | 0019| placement report pursuant to Section [32-5-31] 32A-5-31 | 0020| NMSA 1978. If an agency, the department or an investigator | 0021| preparing the post-placement report wants to contest the | 0022| adoption, they shall notify the court within twenty days after | 0023| completion of the post-placement report. | 0024| F. Service shall be made pursuant to the Rules of | 0025| Civil Procedure for the District [Court] Courts. If the | 0001| whereabouts of a parent whose consent is required is unknown, | 0002| the investigator, department or agency charged with | 0003| investigating the adoption under Section [32-5-13] 32A-5-13 | 0004| NMSA 1978 shall investigate the whereabouts of the parent and | 0005| shall file by affidavit the results of the investigation with | 0006| the court. Upon a finding by the court that information as to | 0007| the whereabouts of a parent has been sufficiently investigated | 0008| and is still insufficient to effect service in accordance with | 0009| the Rules of Civil Procedure for the District Courts, the court | 0010| [shall] may issue an order providing for service by | 0011| publication. G. As to any other person for whom | 0012| notice is required under Subsection A of this section, service | 0013| by certified mail, return receipt requested, shall be | 0014| sufficient. If the service cannot be completed after two | 0015| attempts, the court [shall] may issue an order providing | 0016| for service by publication. | 0017| H. The notice required by this section may be | 0018| waived in writing by the person entitled to notice. | 0019| I. Proof of service of the notice or of attempt to | 0020| serve the notice on all persons for whom notice is required by | 0021| this section shall be filed with the court before any hearing | 0022| adjudicating the rights of the persons." | 0023|  |