SB0417

SENATE BILL 417

57th legislature - STATE OF NEW MEXICO - first session, 2025

INTRODUCED BY

Mimi Stewart and Marianna Anaya and Leo Jaramillo

AN ACT

RELATING TO ADOPTION; AMENDING AND ENACTING SECTIONS OF THE ADOPTION ACT AND THE NEW MEXICO UNIFORM PARENTAGE ACT TO PROVIDE FOR CONFIRMATORY ADOPTIONS.

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

SECTION 1. Section 32A-5-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 130, as amended) is amended to read:

"32A-5-3. DEFINITIONS.--As used in the Adoption Act:

A. "accrediting entity" means an entity that has entered into an agreement with the United States secretary of state pursuant to the federal Intercountry Adoption Act of 2000 and regulations adopted by the United States secretary of state pursuant to that act, to accredit agencies and approve persons who provide adoption services related to convention adoptions;

B. "adoptee" means a person who is the subject of an adoption petition;

C. "adoption service" means:

(1) identifying a child for adoption and arranging the adoption of the child;

(2) arranging or assisting in the process of connecting or matching parents who may place a child for adoption with prospective adoptive parents;

(3) providing counseling, advice or guidance related to a potential adoption;

(4) receiving or disbursing funds or anything of value on behalf of a prospective adoptive parent or to a parent who may place or has placed a child for adoption;

(5) securing termination of parental rights to a child or consent to adoption of the child;

(6) performing a background study on a child and reporting on the study;

(7) performing a home study on a prospective adoptive parent and reporting on the study;

(8) making determinations regarding the best interests of a child and the appropriateness of an adoptive placement for the child;

(9) performing post-placement monitoring of a child until an adoption is final; or

(10) when there is a disruption before an adoption of a child is final, assuming custody of the child and providing or facilitating the provision of child care or other social services for the child pending an alternative placement of the child;

D. "agency" means a 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;

E. "agency adoption" means an adoption when the adoptee is in the custody of an agency prior to placement;

F. "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; [or]

(4) has openly held out the adoptee as his own child by establishing a custodial, personal or financial relationship with the adoptee as follows:

(a) for an adoptee under six months old at the time of placement: 1) has initiated an action to establish paternity; 2) is living with the adoptee at the time the adoption petition is filed; 3) has lived with the mother a minimum of ninety days during the two-hundred-eighty-day period prior to the birth or placement of the adoptee; 4) has lived with the adoptee within the ninety days immediately preceding the adoptive placement; 5) has provided reasonable and fair financial support to the mother during the pregnancy and in connection with the adoptee's birth in accordance with his means and when not prevented from doing so by the person or authorized agency having lawful custody of the adoptee or the adoptee's mother; 6) has continuously paid child support to the mother since the adoptee's birth in an amount at least equal to the amount provided in Section 40-4-11.1 NMSA 1978, or has brought current any delinquent child support payments; or 7) any other factor the court deems necessary to establish a custodial, personal or financial relationship with the adoptee; or

(b) for an adoptee over six months old at the time of placement: 1) has initiated an action to establish paternity; 2) has lived with the adoptee within the ninety days immediately preceding the adoptive placement; 3) has continuously paid child support to the mother since the adoptee's birth in an amount at least equal to the amount provided in Section 40-4-11.1 NMSA 1978, or is making reasonable efforts to bring delinquent child support payments current; 4) has contact with the adoptee on a monthly basis when physically and financially able and when not prevented by the person or authorized agency having lawful custody of the adoptee; or 5) has regular communication with the adoptee, or with the person or agency having the care or custody of the adoptee, when physically and financially unable to visit the adoptee and when not prevented from doing so by the person or authorized agency having lawful custody of the adoptee; or

(5) has established a parent-child relationship pursuant to Article 2 of the New Mexico Uniform Parentage Act;

G. "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] a person who alleges or is alleged to be a genetic parent or possible genetic parent of a child, but whose parentage has not been adjudicated. "Alleged father" does not include:

(1) a presumed parent;

(2) a person whose parental rights have been terminated or declared not to exist; or

(3) a donor;

H. "assisted reproduction" means a method of causing pregnancy other than sexual intercourse. "Assisted reproduction" includes:

(1) intrauterine or vaginal insemination;

(2) donation of eggs or sperm;

(3) donation of embryos;

(4) in-vitro fertilization and transfer of embryos; and

(5) intracytoplasmic sperm injection;

I. "confirmatory adoption" means an action in which a parent or parents of a child born through assisted reproduction seek to confirm parentage of the child and obtain a judgment of adoption;

[H.] J. "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;

(2) whereby the department or an agency grants its consent to the adoption of a child in its custody; or

(3) signed by the adoptee if the child is fourteen years of age or older;

[I.] K. "convention adoption" means:

(1) an adoption by a United States resident of a child who is a resident of a foreign country that is a party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption; or

(2) an adoption by a resident of a foreign country that is a party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of a child who is a resident of the United States;

[J.] L. "counselor" means a person certified by the department to conduct adoption counseling in independent adoptions;

[K.] M. "department adoption" means an adoption when the child is in the custody of the department;

N. "donor" means a person who contributes a gamete or gametes or an embryo or embryos to another person for assisted reproduction or gestation, whether or not there is consideration for the contribution. "Donor" does not include a person who:

(1) provides gametes for use in assisted reproduction with that person's spouse;

(2) gives birth to a child by means of assisted reproduction, unless declared otherwise by a court pursuant to a surrogacy agreement;

(3) is a parent of a child of assisted reproduction pursuant to Article 7 of the New Mexico Uniform Parentage Act; or

(4) is an intended parent pursuant to a surrogacy agreement;

[L.] O. "foreign born child" means any child not born in the United States who is not a citizen of the United States;

[M.] P. "former parent" means a parent whose parental rights have been terminated or relinquished;

[N.] Q. "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;

[O.] R. "independent adoption" means an adoption when the child is not in the custody of the department or an agency;

[P.] S. "investigator" means an individual certified by the department to conduct pre-placement studies and post-placement reports;

[Q.] T. "office" means a place for the regular transaction of business or performance of particular services;

U. "parent" means a person who has established a parent-child relationship;

V. "parent-child relationship" means a relationship between a person and a child that is established by:

(1) the person having given birth to the child;

(2) an adjudication of the person's maternity or paternity;

(3) adoption of the child by the person;

(4) a presumption of parentage pursuant to Section 40-11A-204 NMSA 1978;

(5) an effective acknowledgment of parentage

by the person pursuant to Article 3 of the New Mexico Uniform Parentage Act, unless the acknowledgment has been rescinded or successfully challenged; or

(6) the person's having consented to assisted

reproduction pursuant to Article 7 of the New Mexico Uniform Parentage Act that resulted in the birth of the child;

[R.] W. "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;

[S.] X. "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;

[T.] Y. "post-placement report" means a written evaluation of the adoptive family and the adoptee after the adoptee is placed for adoption;

[U.] Z. "pre-placement study" means a written evaluation of the adoptive family, the adoptee's biological family and the adoptee;

[V.] AA. "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;

[W.] BB. "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;

[X.] CC. "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;

[Y.] DD. "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

[Z.] EE. "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."

SECTION 2. A new section of the Adoption Act, Section 32A-5-3.1 NMSA 1978 is enacted to read:

"32A-5-3.1. [NEW MATERIAL] APPLICABILITY OF TERMS.--To the extent practicable, any provision of the Adoption Act applicable to a father-child relationship applies to a mother-child relationship or parent-child relationship, and any provision of the Adoption Act applicable to a mother-child relationship applies to a father-child relationship or parent-child relationship."

SECTION 3. Section 32A-5-14 NMSA 1978 (being Laws 1993, Chapter 77, Section 141, as amended) is amended to read:

"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.

E. The requirements of this section shall not apply to confirmatory adoptions."

SECTION 4. Section 32A-5-27 NMSA 1978 (being Laws 1993, Chapter 77, Section 154, as amended) is amended to read:

"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 32A-5-7 NMSA 1978;

(2) any person, agency or institution whose consent or relinquishment is required by Section 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 32A-5-13 NMSA 1978; and

(11) any other person designated by the court.

B. Notice shall not be served on the following:

(1) an alleged father; and

(2) a 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 32A-5-7 NMSA 1978.

D. 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 32A-5-31 NMSA 1978. If an agency, the department or an investigator preparing the post-placement report wants to contest the adoption, it shall notify the court within twenty days after completion of the post-placement report.

E. Service shall be made pursuant to the Rules of Civil Procedure for the District Courts. If the whereabouts of a parent whose consent is required is unknown, the investigator, department or agency charged with investigating the adoption under Section 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.

F. 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.

G. The notice required by this section may be waived in writing by the person entitled to notice.

H. 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.

I. The requirements of this section shall not apply to confirmatory adoptions."

SECTION 5. Section 32A-5-34 NMSA 1978 (being Laws 1993, Chapter 77, Section 161, as amended) is amended to read:

"32A-5-34. FEES AND CHARGES--DAMAGES.--

A. Prior to the final hearing on a 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 an adoption. The accounting report shall be signed under penalty of perjury. The accounting report shall be itemized in detail and shall show the services reasonably 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 and 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 the petitioner or who participated in any way in the handling of the funds, either directly or indirectly. The requirements of this subsection shall not apply to confirmatory adoptions.

B. Only a prospective adoptive parent, acting alone, through an agency or through an attorney who is licensed in this state, shall make payments for services relating to the adoption or to the placement of the adoptee for adoption 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, including the adoptee, for a reasonable time before the birth or placement of the adoptee and for no more than six weeks after the birth or placement of the adoptee;

(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 for services relating to the adoption or to the placement of the adoptee for adoption.

C. Any person who makes payments that are not permitted pursuant to the provisions of this section is in violation of the Adoption Act and subject to the penalties set forth in Section 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, 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."

SECTION 6. A new section of the Adoption Act, Section 32A-5-46 NMSA 1978, is enacted to read:

"32A-5-46. [NEW MATERIAL] CONFIRMATORY ADOPTION.--

A. Whenever a child is born as a result of assisted reproduction and a person or persons who did not give birth is a parent or parents and seeks to confirm parentage through an adoption of the child, the court shall permit the parent to file a petition for adoption in accordance with this section.

B. Notwithstanding any other provisions of the Adoption Act, a petition for confirmatory adoption shall include the following:

(1) signatures from all petitioners for confirmatory adoption;

(2) if any of the petitioners are married, a copy of the petitioners' marriage certificate;

(3) a declaration signed by all petitioners explaining the circumstances of the child's birth through assisted reproduction, attesting that the petitioners are parents and that there are no other persons with a claim to parentage of the child; and

(4) a certified copy of the child's birth certificate.

C. Submission of a complete petition for confirmatory adoption constitutes notice of and written consent to the confirmatory adoption, and the court shall not require any additional notice or consent by any petitioner.

D. If a petitioner for confirmatory adoption conceived the child through assisted reproduction using a donor, the court shall not require notice of the confirmatory adoption to that donor or the consent of that donor to the confirmatory adoption.

E. Unless otherwise ordered by the court for good cause shown and supported by written findings of the court demonstrating good cause, for the purposes of evaluating and granting a petition for confirmatory adoption pursuant to this section, the court shall not require:

(1) placement;

(2) a pre-placement study or post-placement report, including home visits, interviews, medical exams or certificates, employment or financial resource verification, letters of reference or examination of a petitioner's capacity or readiness;

(3) counseling for any parent, presumed parent or child;

(4) a criminal records check;

(5) documentation of fees or charges related to the confirmatory adoption;

(6) a minimum residency in the home of the petitioners;

(7) a best interest of the child assessment; or

(8) a hearing or appearance.

F. The court shall grant a petition for confirmatory adoption within thirty days of the petition being filed upon finding that:

(1) the child was born through assisted reproduction to parents joined in marriage, one of the petitioners gave birth to the child and there are no competing claims of parentage; or

(2) the child was born through assisted reproduction with the consent of all petitioners, one of the petitioners gave birth to the child, the other petitioner or petitioners are parents and there are no competing claims of parentage.

G. A petition for confirmatory adoption shall not be denied on the basis that:

(1) any of the petitioners' parentage is already presumed or legally recognized in this state;

(2) the petitioners are unmarried; or

(3) there are more than two petitioners.

H. When parentage is presumed or legally recognized under state law, the fact that a party did not petition for confirmatory adoption shall not be considered as evidence in determining:

(1) parental rights disputes; or

(2) the best interest of a child."

SECTION 7. Section 40-11A-704 NMSA 1978 (being Laws 2009, Chapter 215, Section 7-704) is amended to read:

"40-11A-704. CONSENT TO ASSISTED REPRODUCTION.--

A. The intended parent or parents shall consent to the assisted reproduction in a record signed [by them before the placement of the eggs, sperm or embryos. Donors shall also consent to an assisted reproduction before retrieval of the donors' eggs or sperm] before, on or after the day of birth of the child or in an oral agreement entered into before conception by each intended parent.

B. [Failure of a parent to sign a consent required by] The absence of evidence required pursuant to Subsection A of this section does not preclude a finding of parentage if the [parent during the first two years of the child's life] person resided [in the same household] with the child after birth and openly held out the child as the [parent's] person's own jointly with the birthing parent.

C. All papers relating to the assisted reproduction, whether part of a court, medical or any other file, are subject to inspection only upon an order of the district court or with the consent, in a signed record, of:

(1) the donor or donors; and

(2) the parent or parents who consented to the assisted reproduction pursuant to Subsection A of this section or a child who was born as a result of the assisted reproduction pursuant to Subsection A of this section if the child is eighteen years of age or older."

SECTION 8. APPLICABILITY.--The provisions of this act apply to actions commenced on or after the effective date of this act.

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