46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO CHILDREN; AMENDING AND ENACTING SECTIONS OF THE ABUSE AND NEGLECT ACT TO PROVIDE THAT, IN CERTAIN INSTANCES, A PARENT MAY NOMINATE PERSONS AS POTENTIAL GUARDIANS OR ADOPTIVE PARENTS AND TO PROVIDE FOR THE TERMINATION OF PARENTAL RIGHTS OF CERTAIN PARENTS WHO ARE INCARCERATED OR OTHERWISE UNAVAILABLE.

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

Section 1. A new section of the Abuse and Neglect Act is enacted to read:

"[NEW MATERIAL] UNAVAILABLE PARENT--NOMINATION OF POTENTIAL GUARDIAN OR ADOPTIVE PARENT.--

A. After a finding by a court that probable cause exists to believe that a child has been abused or neglected, a noncustodial or unavailable parent may nominate, in writing, one or more relatives or other persons as potential guardians or adoptive parents. Within sixty days of receipt of a nomination, the department shall investigate the suitability of the nominees and report the results of its investigation to the court.

B. The court shall consider the nominees and the department report in any future hearing at which the rights and disposition of the child are determined."

Section 2. Section 32A-4-28 NMSA 1978 (being Laws 1993, Chapter 77, Section 122, as amended) is amended to read:

"32A-4-28. TERMINATION OF PARENTAL RIGHTS--ADOPTION DECREE.--

A. In proceedings to terminate parental rights, the court shall give primary consideration to the physical, mental and emotional welfare and needs of the child, including the likelihood of the child being adopted if parental rights are terminated.

B. The court shall terminate parental rights with respect to a child when:

(1) there has been an abandonment of the child by his parents;

(2) the child has been a neglected or abused child [as defined in the Abuse and Neglect Act] and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts by the department or other appropriate agency to assist the parent in adjusting the conditions that render the parent unable to properly care for the child. The court may find in some cases that efforts by the department or another agency are unnecessary, when:

(a) there is a clear showing that the efforts would be futile;

(b) the parent has subjected the child to aggravated circumstances; or

(c) the parental rights of the parent to a sibling of the child have been terminated involuntarily; [or]

(3) the child has been placed in the care of others, including care by other relatives, either by a court order or otherwise and the following conditions exist:

(a) the child has lived in the home of others for an extended period of time;

(b) the parent-child relationship has disintegrated;

(c) a psychological parent-child relationship has developed between the substitute family and the child;

(d) if the court deems the child of sufficient capacity to express a preference, the child no longer prefers to live with the natural parent;

(e) the substitute family desires to adopt the child; and

(f) a presumption of abandonment created by the conditions described in Subparagraphs (a) through (e) of this paragraph has not been rebutted; or

(4) the child has been a neglected or abused child and the parent is incarcerated or otherwise unavailable for an extended period of time and will not be available to care for the child for eighteen months or longer after the proceeding. In considering whether to terminate parental rights pursuant to this paragraph, the court shall consider:

(a) the age of the child and the extent to which a parent-child relationship exists;

(b) pursuant to Subsection C of this section, the suitability of the parent's nominees as guardians or adoptive parents for the child;

(c) the developmental and permanency needs of the child; and

(d) the period of time necessary for the parent to be able to provide a stable home appropriate to the child's needs following an anticipated parole or probation.

C. Within thirty days of the filing of a motion to terminate parental rights, an incarcerated or otherwise unavailable parent has the right to nominate, in writing, relatives or other persons as guardians or adoptive parents. Within sixty days of receiving the nomination, the department shall investigate the nominees and report the results of its investigation to the parent and the court. Prior to a hearing on the motion to terminate parental rights, the court shall hold a separate hearing to determine whether any of the nominees are adequate adoptive parents or guardians.

[C.] D. A finding by the court that all of the conditions set forth in Subparagraphs (a) through (f) of Paragraph (3) of Subsection B of this section exist shall create a rebuttable presumption of abandonment.

[D. The department shall not file a motion, and shall not join a motion filed by another party, to terminate parental rights when the sole factual basis for the motion is that a child's parent is incarcerated.]

E. The termination of parental rights involving a child subject to the federal Indian Child Welfare Act of 1978 shall comply with the requirements of that act.

F. If the court finds that parental rights should be terminated; that the requirements for the adoption of a child have been satisfied; that the prospective adoptive parent is a party to the action; and that good cause exists to waive the filing of a separate petition for adoption, the court may proceed to grant adoption of the child, absent an appeal of the termination of parental rights. The court shall not waive any time requirements set forth in the Adoption Act unless the termination of parental rights occurred pursuant to the provisions of Paragraph (3) of Subsection B of this section. The court may enter a decree of adoption only after finding that the party seeking to adopt the child has satisfied all of the requirements set forth in the Adoption Act. Unless otherwise stipulated by all parties, an adoption decree shall take effect sixty days after the termination of parental rights, to allow the department sufficient time to provide counseling for the child and otherwise prepare the child for the adoption. The adoption decree shall conform to the requirements of the Adoption Act and shall have the same force and effect as other adoption decrees entered pursuant to that act. The court clerk shall assign an adoption case number to the adoption decree."