45th legislature - STATE OF NEW MEXICO - first session, 2001
RELATING TO MINORS; PROVIDING FOR KINSHIP GUARDIANSHIP OF MINORS; ENACTING THE KINSHIP GUARDIANSHIP ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Kinship Guardianship Act"."
Section 2. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] POLICY--PURPOSE.--
A. It is the policy of the state that the interests of children are best served when they are raised by their parents. When neither parent is able or willing to provide appropriate care, guidance and supervision to a child, it is the policy of the state that, whenever possible, a child should be raised by family members or kinship caregivers.
B. The Kinship Guardianship Act is intended to address those cases where a parent has left a child or children in the care of another for ninety consecutive days and that arrangement leaves the child or children without appropriate care, guidance or supervision.
C. The purposes of the Kinship Guardianship Act are to:
(1) establish procedures to effect a legal relationship between a child and a kinship caregiver when the child is not residing with either parent; and
(2) provide a child with a stable and consistent relationship with a kinship caregiver that will enable the child to develop physically, mentally and emotionally to the maximum extent possible when the child's parents are not willing or able to do so."
Section 3. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] DEFINITIONS.--As used in the Kinship Guardianship Act:
A. "caregiver" means an adult, who is not a parent of a child, with whom a child resides and who provides that child with the care, maintenance and supervision consistent with the duties and responsibilities of a parent of the child;
B. "child" means an individual who is a minor;
C. "kinship" means the relationship that exists between a child and a relative of the child, a godparent, a member of the child's tribe or clan or an adult with whom the child has a significant bond;
D. "parent" means a biological or adoptive parent of a child whose parental rights have not been terminated; and E. "relative" means an individual related to a child as a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin or any person denoted by the prefix "grand" or "great", or the spouse or former spouse of the persons specified."
Section 4. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] JURISDICTION AND VENUE.--
A. The district court has jurisdiction of proceedings pursuant to the Kinship Guardianship Act.
B. Proceedings pursuant to the Kinship Guardianship Act shall be in the district court of the county of the child's legal residence or the county where the child resides, if different from the county of legal residence."
Section 5. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] 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, 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; 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 has the right to be served with the petition and notices of hearings in the action; and
(c) that he 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;
(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 resides, if different from the legal residence;
(4) the marital status of the child;
(5) the name and address of the petitioner;
(6) the kinship, if any, between the petitioner and the child;
(7) the names and addresses of the parents of the child;
(8) the names and addresses of persons having legal custody of the child;
(9) the existence of any matters pending involving the custody of the child;
(10) a statement that the petitioner agrees to accept the duties and responsibilities of guardianship;
(11) 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) 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) other facts in support of the guardianship sought."
Section 6. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] SERVICE OF PETITION--NOTICE--PARTIES.--
A. At the time of filing the petition, the petitioner shall obtain an order of the court setting 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 has reached his fourteenth birthday;
(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 7. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] TEMPORARY GUARDIANSHIP PENDING HEARING.--
A. After the filing of the petition, upon motion of the petitioner or a person required to be served pursuant to Subsection B of Section 6 of the Kinship Guardianship Act, or upon its own motion, the court may appoint a temporary guardian to serve for not more than one hundred eighty days or until the case is decided on the merits, whichever occurs first.
B. A motion for temporary guardianship shall be heard within twenty days of the date the motion is filed. The motion and notice of hearing shall be served on all persons required to be served pursuant to Subsection B of Section 6 of the Kinship Guardianship Act.
C. An order pursuant to Subsection A of this section may be entered ex parte upon good cause shown. If the order is entered ex parte, a copy of the order shall be served on the persons required to be served pursuant to Subsection B of Section 6 of the Kinship Guardianship Act. If a person files an objection to the order, the court immediately shall schedule a hearing to be held within ten days of the date the objection is filed. Notice of the hearing shall be given to the petitioner and all persons required to be served pursuant to Subsection B of Section 6 of the Kinship Guardianship Act."
Section 8. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] 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."
Section 9. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] GUARDIAN AD LITEM--APPOINTMENT.--
A. In a proceeding to appoint a guardian pursuant to the Kinship Guardianship Act, the court may appoint a guardian ad litem for the child upon the motion of a party or solely in the court's discretion. The court shall appoint a guardian ad litem if a parent of the child is participating in the proceeding and objects to the appointment requested.
B. In a proceeding in which a parent of the child has petitioned for the revocation of a guardianship established pursuant to the Kinship Guardianship Act and the guardian objects to the revocation, the court shall appoint a guardian ad litem.
C. The court may order all or some of the parties to a proceeding to pay a reasonable fee of a guardian ad litem. If all of the parties are indigent, the court may award a reasonable fee to the guardian ad litem to be paid out of funds of the court."
Section 10. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] GUARDIAN AD LITEM--POWERS AND DUTIES.--A guardian ad litem appointed by the court in a proceeding pursuant to the Kinship Guardianship Act shall:
A. in connection with a petition for guardianship, make a diligent investigation of the circumstances surrounding the petition, including visiting the child in the home, interviewing the person proposed as guardian and interviewing the parents of the child if available;
B. in connection with a petition or motion for revocation of a guardianship, recommend an appropriate transition plan in the event the guardianship is revoked; and
C. at a hearing held in connection with proceedings described in Subsection A or B of this section, report to the court concerning the best interests of the child and the child's position on the requested relief."
Section 11. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] NOMINATION OBJECTION BY CHILD.--In a proceeding for appointment of a guardian pursuant to the Kinship Guardianship Act:
A. the court shall appoint a person nominated by a child who has reached his fourteenth birthday unless the court finds the nomination contrary to the best interests of the child; and
B. the court shall not appoint a person as guardian if a child who has reached his fourteenth birthday files a written objection in the proceeding before the person accepts appointment as guardian."
Section 12. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] REVOCATION OF GUARDIANSHIP.--
A. Any person, including a child who has reached his fourteenth birthday, may move for revocation of a guardianship created pursuant to the Kinship Guardianship Act. The person requesting revocation shall attach to the motion a transition plan proposed to facilitate the reintegration of the child into the home of a parent or a new guardian. A transition plan shall take into consideration the child's age, development and any bond with the guardian.
B. If the court finds that a preponderance of the evidence proves a change in circumstances and the revocation is in the best interests of the child, it shall grant the motion and:
(1) adopt a transition plan proposed by a party or the guardian ad litem;
(2) propose and adopt its own transition plan; or
(3) order the parties to develop a transition plan by consensus if they will agree to do so."
Section 13. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] RIGHTS AND DUTIES OF GUARDIAN.--
A. A guardian appointed for a child pursuant to the Kinship Guardianship Act has the legal rights and duties of a parent except the right to consent to adoption of the child and except for parental rights and duties that the court orders retained by a parent.
B. Unless otherwise ordered by the court, a guardian appointed pursuant to the Kinship Guardianship Act has authority to make all decisions regarding visitation between a parent and the child.
C. A certified copy of the court order appointing a guardian pursuant to the Kinship Guardianship Act shall be satisfactory proof of the authority of the guardian, and letters of guardianship need not be issued."
Section 14. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] CONTINUING JURISDICTION OF THE COURT.--The court appointing a guardian pursuant to the Kinship Guardianship Act retains continuing jurisdiction of the matter."
Section 15. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:
"[NEW MATERIAL] CAREGIVER'S AUTHORIZATION AFFIDAVIT.--
A. A caregiver who executes a caregiver's authorization affidavit substantially in the form contained in Subsection J of this section by completing Items 1 through 4 of the form and who subscribes and swears to it before a notary public, is authorized to enroll the named child in school and consent to school-related medical care for the child.
B. A caregiver who is a relative of the child, who executes a caregiver's authorization affidavit substantially in the form set forth in Subsection J of this section by completing Items 1 through 8 and who subscribes and swears to the affidavit before a notary public, has the same authority to authorize medical care, dental care and mental health care for the child as a guardian appointed pursuant to the Kinship Guardianship Act.
C. A caregiver's authorization affidavit executed pursuant to this section is not valid for more than one year after the date of its execution.
D. The decision of a caregiver to consent to or refuse medical, dental or mental health care pursuant to a caregiver's authorization affidavit is superseded by a contravening decision of a parent or other person having legal custody of the child if the contravening decision does not jeopardize the life, health or safety of the child.
E. No person who acts in good faith reliance on a caregiver's authorization affidavit to provide medical, dental or mental health care to a child without actual knowledge of facts contrary to those stated in the affidavit is subject to criminal culpability, civil liability or professional disciplinary action if the affidavit complies with the requirements of this section. The foregoing exclusions apply even though a parent having parental rights or person having legal custody of the child has contrary wishes as long as the provider of the care has no actual knowledge of the contrary wishes.
F. A person who relies upon a caregiver's authorization affidavit is under no duty to make further inquiry or investigation.
G. If a child stops living with the caregiver, the caregiver shall give notice of that fact to a school, health care provider, mental health care provider, health insurer or other person who has been given a copy of the caregiver's authorization affidavit.
H. A caregiver's authorization affidavit is invalid unless it contains the warning statement set out in the form contained in Subsection J of this section in not less that ten-point boldface type, or a reasonable equivalent thereof, enclosed in a box with three-point rule lines.
I. As used in this section, "school-related medical care" means medical care that is required by the state or a local government authority as a condition for school enrollment.
J. The caregiver's authorization affidavit shall be in substantially the following form:
"Caregiver's Authorization Affidavit
Use of this affidavit is authorized by the Kinship Guardianship Act.
Instructions:
A. Completion of Items 1-4 and the signing of the affidavit is sufficient to authorize enrollment of a minor in school and authorize school-related medical care.
B. Completion of Items 5-8 is additionally required to authorize any other medical care.
Print clearly:
The minor named below lives in my home and I am 18 years of age or older.
1. Name of minor: ____________________________________________.
2. Minor's birth date: _______________________________________.
3. My name (adult giving authorization): _____________________.
4. My home address: __________________________________________.
5. ( ) I am a grandparent, aunt, uncle or other qualified relative of the minor (see back of this form for a definition of "qualified relative").
6. Check one or both (for example, if one parent was advised and the other cannot be located):
( ) I have advised the parent(s) or other person(s) having legal custody of the minor of my intent to authorize medical care, and have received no objection.
( ) I am unable to contact the parent(s) or other person(s) having legal custody of the minor at this time, to notify them of my intended authorization.
7. My date of birth: _________________________________________.
8. My NM driver's license or other identification card number: ______________________________.
WARNING: Do not sign this form if any of the statements above are incorrect, or you will be committing a crime punishable by a fine, imprisonment or both.
I declare under penalty of perjury under the laws of the state of New Mexico that the foregoing is true and correct.
Signed: _____________________________
The foregoing affidavit was subscribed, sworn to and acknowledged before me this _____ day of _________________, 20_____, by _____________________.
My commission expires: __________ _____________________
Notary Public
Notices:
1. This declaration does not affect the rights of the minor's parents or legal guardian regarding the care, custody and control of the minor, and does not mean that the caregiver has legal custody of the minor.
2. A person who relies on this affidavit has no obligation to make any further inquiry or investigation.
3. This affidavit is not valid for more than one year after the date on which it is executed.
Additional Information:
TO CAREGIVERS:
1. "Qualified relative", for purposes of Item 5, means a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, godparent, member of the child's tribe or clan, an adult with whom the child has a significant bond or any person denoted by the prefix "grand" or "great", or the spouse or former spouse of any of the persons specified in this definition.
2. If the minor stops living with you, you are required to notify any school, health care provider, mental health care provider, health insurer or other person to whom you have given this affidavit.
3. If you do not have the information requested in Item 8, provide another form of identification such as your social security number or medicaid number.
TO HEALTH CARE PROVIDERS AND HEALTH CARE SERVICE PLANS:
1. No person who acts in good faith reliance upon a caregiver's authorization affidavit to provide medical, dental or mental health care, without actual knowledge of facts contrary to those stated on the affidavit, is subject to criminal liability or to civil liability to any person, or is subject to professional disciplinary action, for such reliance if the applicable portions of the form are completed.
2. This affidavit does not confer dependency for health care coverage purposes."."