AN ACT

RELATING TO CHILDREN; MAKING REVISIONS TO THE CHILDREN'S CODE; AMENDING, REPEALING AND ENACTING SECTIONS OF CHAPTER 32A NMSA 1978; RECONCILING MULTIPLE AMENDMENTS TO THE NMSA 1978 BY REPEALING LAWS 2003, CHAPTER 225, SECTION 10.

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

     Section 1. Section 32A-1-4 NMSA 1978 (being Laws 1993, Chapter 77, Section 13, as amended) is amended to read:

     "32A-1-4. DEFINITIONS.--As used in the Children's Code:           A. "adult" means a person who is eighteen years of age or older;

          B. "child" means a person who is less than eighteen years old;

          C. "court", when used without further qualification, means the children's court division of the district court and includes the judge, special master or commissioner appointed pursuant to the provisions of the Children's Code or supreme court rule;

          D. "court appointed special advocate" or "CASA" means a person appointed as a CASA, pursuant to the provisions of the Children's Court Rules, who assists the court in determining the best interests of the child by investigating the case and submitting a report to the court;

          E. "custodian" means an adult with whom the child lives who is not a parent or guardian of the child;

          F. "department" means the children, youth and families department, unless otherwise specified;

          G. "foster parent" means a person, including a relative of the child, licensed or certified by the department or a child placement agency to provide care for children in the custody of the department or agency;

          H. "guardian" means a person appointed as a guardian by a court or Indian tribal authority or a person authorized to care for the child by a parental power of attorney as permitted by law;

          I. "guardian ad litem" means an attorney appointed by the children's court to represent and protect the best interests of the child in a court proceeding; provided that no party or employee or representative of a party to the proceeding shall be appointed to serve as a guardian ad litem;

          J. "Indian child" means an unmarried person who is:

                (1) less than eighteen years old;

                (2) a member of an Indian tribe or is eligible for membership in an Indian tribe; and

                (3) the biological child of a member of an Indian tribe;

          K. "Indian child's tribe" means:

                (1) the Indian tribe in which an Indian child is a member or eligible for membership; or

                (2) in the case of an Indian child who is a member or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has more significant contacts;

          L. "Indian tribe" means a federally recognized Indian tribe, community or group pursuant to

25 U.S.C. § 1903(1);

          M. "judge", when used without further qualification, means the judge of the court;

          N. "legal custody" means a legal status created by order of the court or other court of competent jurisdiction or by operation of statute that vests in a person, department or agency the right to determine where and with whom a child shall live; the right and duty to protect, train and discipline the child and to provide the child with food, shelter, personal care, education and ordinary and emergency medical care; the right to consent to major medical, psychiatric, psychological and surgical treatment and to the administration of legally prescribed psychotropic medications pursuant to the Children's Mental Health and Developmental Disabilities Act; and the right to consent to the child's enlistment in the armed forces of the United States;

          O. "parent" or "parents" includes a biological or adoptive parent if the biological or adoptive parent has a constitutionally protected liberty interest in the care and custody of the child;

          P. "permanency plan" means a determination by the court that the child's interest will be served best by:

                (1) reunification

                (2) placement for adoption after the parents' rights have been relinquished or terminated or after a motion has been filed to terminate parental rights;

                (3) placement with a person who will be the child's permanent guardian;

                (4) placement in the legal custody of the department with the child placed in the home of a fit and willing relative; or

                (5) placement in the legal custody of the department under a planned permanent living arrangement;

          Q. "person" means an individual or any other form of entity recognized by law;

          R. "preadoptive parent" means a person with whom a child has been placed for adoption;

          S. "protective supervision" means the right to visit the child in the home where the child is residing, inspect the home, transport the child to court-ordered diagnostic examinations and evaluations and obtain information and records concerning the child;

          T. "reunification" means either a return of the child to the parent or to the home from which the child was removed or a return to the noncustodial parent;

          U. "tribal court" means:

                (1) a court established and operated pursuant to a code or custom of an Indian tribe; or

                (2) any administrative body of an Indian tribe that is vested with judicial authority;

          V. "tribal court order" means a document issued by a tribal court that is signed by an appropriate authority, including a judge, governor or tribal council member, and that orders an action that is within the tribal court's jurisdiction; and

          W. "tribunal" means any judicial forum other than the court."

     Section 2. Section 32A-1-6 NMSA 1978 (being Laws 1993, Chapter 77, Section 15, as amended) is amended to read:

     "32A-1-6. CHILDREN'S COURT ATTORNEY.--

          A. The "office of children's court attorney" is established in each judicial district. Except as provided by Subsection C, D or E of this section, each district attorney is the ex-officio children's court attorney for the judicial district of the district attorney.

          B. Except as provided by Subsection C, D or E of this section, the children's court attorney may represent the state in any matter arising under the Children's Code when the state is the petitioner or complainant. The children's court attorney shall represent the petitioner in matters arising under the Children's Code when, in the discretion of the judge, the matter presents legal complexities requiring representation by the children's court attorney, whether or not the state is petitioner or complainant, but not in those matters when there is a conflict of interest between the petitioner or complainant and the state. A petitioner or complainant may be represented by counsel in any matter arising under the Children's Code.

          C. In cases involving civil abuse or civil neglect and the periodic review of their dispositions, the attorney selected by and representing the department is the children's court attorney. The attorney selected by and representing the department shall provide the district attorney of the appropriate judicial district with a copy of any abuse or neglect petition filed in that judicial district. Upon the request of the district attorney, the attorney selected by and representing the department shall provide the district attorney with reports, investigations and pleadings relating to any abuse or neglect petition.

          D. In cases involving families in need of

court-ordered services, the periodic review of their dispositions and voluntary placements, the attorney selected by and representing the department is the children's court attorney. The attorney selected by and representing the department shall provide the district attorney of the appropriate judicial district with a copy of any family in need of court-ordered services petition filed in that judicial district. Upon the request of the district attorney, the attorney selected by and representing the department shall provide the district attorney with reports, investigations and pleadings relating to any family in need of court-ordered services petition.

          E. In cases involving a child subject to the provisions of the Children's Mental Health and Developmental Disabilities Act that also involves civil abuse, civil neglect or a family in need of court-ordered services, the attorney selected by and representing the department is the children's court attorney. In cases involving a child subject to the provisions of the Children's Mental Health and Developmental Disabilities Act that does not also involve civil abuse, civil neglect or a family in need of

court-ordered services, the district attorney is the ex-officio children's court attorney.

          F. In those counties where the children's court attorney has sufficient staff and the workload requires it, the children's court attorney may delegate children's court functions to a staff attorney."

     Section 3. Section 32A-1-7 NMSA 1978 (being Laws 1993, Chapter 77, Section 16, as amended) is amended to read:

     "32A-1-7. GUARDIAN AD LITEM--POWERS AND DUTIES.--

          A. A guardian ad litem shall zealously represent the child's best interests in the proceeding for which the guardian ad litem has been appointed and in any subsequent appeals.

          B. Unless excused by a court, a guardian ad litem appointed to represent a child's best interests shall continue the representation in any subsequent appeals.

          C. Any party may petition the court for an order to remove a guardian ad litem on the grounds that the guardian ad litem has a conflict of interest or is unwilling or unable to zealously represent the child's best interests.

          D. After consultation with the child, a guardian ad litem shall convey the child's declared position to the court at every hearing.

          E. Unless a child's circumstances render the following duties and responsibilities unreasonable, a guardian ad litem shall:

                (1) meet with and interview the child prior to custody hearings, adjudicatory hearings, dispositional hearings, judicial reviews and any other hearings scheduled in accordance with the provisions of the Children's Code;

                (2) communicate with health care, mental health care and other professionals involved with the child's case;

                (3) review medical and psychological reports relating to the child and the respondents;

                (4) contact the child prior to any proposed change in the child's placement;

                (5) contact the child after changes in the child's placement;

                (6) attend local substitute care review board hearings concerning the child and if unable to attend the hearings, forward to the board a letter setting forth the child's status during the period since the last local substitute care review board review and include an assessment of the department's permanency and treatment plans;

                (7) report to the court on the child's adjustment to placement, the department's and respondent's compliance with prior court orders and treatment plans and the child's degree of participation during visitations; and

                (8) represent and protect the cultural needs of the child.

          F. A guardian ad litem may retain separate counsel to represent the child in a tort action on a contingency fee basis or any other cause of action in proceedings that are outside the jurisdiction of the children's court. When a guardian ad litem retains separate counsel to represent the child, the guardian ad litem shall provide the court with written notice within ten days of retaining the separate counsel. A guardian ad litem shall not retain or subsequently obtain any pecuniary interest in an action filed on behalf of the child outside of the jurisdiction of the children's court.

          G. In the event of a change of venue, the originating guardian ad litem shall remain on the case until a new guardian ad litem is appointed by the court in the new venue and the new guardian ad litem has communicated with and received all pertinent information from the former guardian ad litem.

          H. A guardian ad litem shall receive notices, pleadings or other documents required to be provided to or served upon a party. A guardian ad litem may file motions and other pleadings and take other actions consistent with the guardian ad litem's powers and duties.

          I. A guardian ad litem shall not serve concurrently as both the child's delinquency attorney and guardian ad litem."

     Section 4. Section 32A-1-8 NMSA 1978 (being Laws 1993, Chapter 77, Section 17, as amended by Laws 1999, Chapter 46, Section 1 and also by Laws 1999, Chapter 78, Section 1) is amended to read:

     "32A-1-8. JURISDICTION OF THE COURT--TRIBAL COURT JURISDICTION.--

          A. The court has exclusive original jurisdiction of all proceedings under the Children's Code in which a person is eighteen years of age or older and was a child at the time the alleged act in question was committed or is a child alleged to be:

                (1) a delinquent child;

                (2) a child of a family in need of

court-ordered services or a child in need of services pursuant to the Family in Need of Services Act;

                 (3) a neglected child;

                (4) an abused child;

                (5) a child subject to adoption; or

                (6) a child subject to placement for a developmental disability or a mental disorder.

          B. The court has exclusive original jurisdiction to emancipate a minor.

           C. During abuse or neglect proceedings in which New Mexico is the home state, pursuant to the provisions of the Uniform Child-Custody Jurisdiction and Enforcement Act, the court shall have jurisdiction over both parents to determine the best interest of the child and to decide all matters incident to the court proceedings.

          D. Nothing in this section shall be construed to in any way abridge the rights of any Indian tribe to exercise jurisdiction over child custody matters as defined by and in

accordance with the federal Indian Child Welfare Act of 1978.           E. A tribal court order pertaining to an Indian child in an action under the Children's Code shall be recognized and enforced by the district court for the judicial district in which the tribal court is located. A tribal court order pertaining to an Indian child that accesses state resources shall be recognized and enforced pursuant to the provisions of intergovernmental agreements entered into by the Indian child's tribe and the department or another state agency. An Indian child residing on or off a reservation, as a citizen of this state, shall have the same right to services that are available to other children of the state, pursuant to intergovernmental agreements. The cost of the services provided to an Indian child shall be determined and provided for in the same manner as services are made available to other children of the state, utilizing tribal, state and federal funds and pursuant to intergovernmental agreements. The tribal court, as the court of original jurisdiction, shall retain jurisdiction and authority over the Indian child."

     Section 5. Section 32A-1-9 NMSA 1978 (being Laws 1993, Chapter 77, Section 18, as amended) is amended to read:

     "32A-1-9. VENUE AND TRANSFER.--

           A. Proceedings in the court under the provisions of the Children's Code shall begin in the county where the child resides. If delinquency is alleged, the proceeding may also be begun in the county where the act constituting the alleged delinquent act occurred or in the county in which the child is detained. Neglect, abuse, family in need of

court-ordered services or mental health proceedings may also begin in the county where the child is present when the proceeding is commenced.

           B. The venue for proceedings under other laws will be determined by the venue provisions of the other laws. If the other laws contain no venue provisions, then the venue and transfer provisions of Subsections A and C of this section apply.

           C. If a proceeding is begun in a court for a county other than the county in which the child resides, that court, on its own motion or on the motion of a party made at any time prior to disposition of the proceeding, may transfer the proceeding to the court for the county of the child's residence for such further proceedings as the receiving court deems proper. A like transfer may be made if the residence of the child changes during or after the proceeding. Certified copies of all legal and social records pertaining to the proceeding shall accompany the case on transfer.

          D. In neglect, abuse, family in need of

court-ordered services or adoption proceedings for the placement of an Indian child, the court shall, in the absence of good cause to the contrary, transfer the proceeding to the jurisdiction of the Indian child's tribe upon the petition of the Indian child's parent, the Indian child's guardian or the Indian child's tribe. The transfer shall be barred if there is an objection to the transfer by a parent of the Indian child or the Indian child's tribe."

     Section 6. Section 32A-1-11 NMSA 1978 (being Laws 1993, Chapter 77, Section 20) is amended to read:

     "32A-1-11. PETITION--FORM AND CONTENT.--A petition initiating proceedings pursuant to the provisions of

Chapter 32A, Article 2, 3B, 4 or 6 NMSA 1978 shall be entitled, "In the Matter of ............, a child", and shall set forth with specificity:

          A. the facts necessary to invoke the jurisdiction of the court;

          B. if violation of a criminal statute or other law or ordinance is alleged, the citation to the appropriate law;

          C. the name, birth date and residence address of the child;

          D. the name and residence address of the parents, guardian, custodian or spouse, if any, of the child; and if no parent, guardian, custodian or spouse, if any, resides or can be found within the state or if a residence address is unknown, the name of any known adult relative residing within the state or, if there be none, the known adult relative residing nearest to the court;

          E. whether the child is in custody or detention pursuant to the Delinquency Act and, if so, the place of custody or detention and the time the child was taken into custody;

           F. whether the child is an Indian child; and

           G. if any of the matters required to be set forth by this section are not known, a statement of those matters and the fact that they are not known."

     Section 7. Section 32A-1-13 NMSA 1978 (being Laws 1993, Chapter 77, Section 22, as amended) is amended to read:

     "32A-1-13. SUMMONS--SERVICE.--

          A. If a party to be served with a summons can be found within the state, the summons shall be served upon the party as provided by the Rules of Civil Procedure for the District Courts at least forty-eight hours before the hearing, except that for a child party to an action pursuant to the Abuse and Neglect Act, service shall be on the child's guardian ad litem or attorney and not personally pursuant to children's court rule.

          B. If a party to be served is within the state and cannot be found but the party's address is known, service of the summons may be made by mailing a copy of the summons to the party by certified mail at least fifteen days before the hearing.

          C. If after reasonable effort a party to be served cannot be found, or address ascertained, within or without the state, the court may order service of the summons by publication in accordance with the provisions of Rule 1-004 of the Rules of Civil Procedure for the District Courts, in which event the hearing shall not be less than five days after the date of last publication.

          D. The court may authorize the payment from court funds of the costs of service and of necessary travel expenses incurred by persons summoned or otherwise required to appear at the hearing."

     Section 8. Section 32A-1-14 NMSA 1978 (being Laws 1993, Chapter 77, Section 23) is amended to read:

     "32A-1-14. NOTICE TO INDIAN TRIBES.--

          A. In a case involving a family in need of

court-ordered services, if the child is an Indian child, the Indian child's tribe shall be notified when the petition is filed. The form of the notice shall comply with the provisions of the federal Indian Child Welfare Act of 1978.

          B. In abuse, neglect or adoption proceedings, if the child is an Indian child, the Indian child's tribe shall be notified. The form of the notice shall comply with the provisions of the federal Indian Child Welfare Act of 1978."

     Section 9. Section 32A-1-19 NMSA 1978 (being Laws 1993, Chapter 77, Section 28) is amended to read:

     "32A-1-19. COURT COSTS AND EXPENSES.--

          A. The following expenses shall be a charge upon the funds of the court upon their certification by the court:

                (1) reasonable compensation for services and related expenses for counsel appointed by the court;

                (2) reasonable compensation for services and related expenses of a guardian ad litem or a child's attorney appointed by the court; and

                (3) the expenses of service of summonses, notices, subpoenas, traveling expenses of witnesses and other like expenses incurred in any proceeding under the Children's Code.

          B. The court may order the parent or other person legally obligated to care for and support a child to pay all or part of the costs and expenses pursuant to Subsection A of this section when:

                (1) the child has been found to be a delinquent child, a child of a family in need of

court-ordered services, an abused or neglected child or a child with a mental illness or a developmental disability;

                (2) the parent or other person legally obligated to care for and support a child is given notice and a hearing to determine the parent or person's financial ability to pay the costs and expenses; and

                (3) the court finds that the parent or person is able to pay all or part of the costs and expenses.

     Unless otherwise ordered, payment shall be made to the court for remittance to those to whom compensation is due or, if costs and expenses have been paid by the court, to the court for remittance to the state. The court may prescribe the manner of payment.

          C. Whenever legal custody of an adjudicated child is vested in someone other than the child's parents, including an agency, institution or department of this state, if the court, after notice to the parents or other persons legally obligated to support the child and after a hearing, finds that the parents or other legally obligated persons are financially able to pay all or part of the costs and expenses of the support and treatment, the court may order the parents or other legally obligated persons to pay to the custodian in the manner the court directs a reasonable sum that will cover all or part of the expenses of the support and treatment of the child subsequent to the entry of the custody order. The court may use the child support guidelines set forth in Section 40-4-11.1 NMSA 1978 to calculate a reasonable payment. If the parents or other legally obligated persons willfully fail or refuse to pay the sum ordered, the court may proceed with contempt charges and the order for payment may be filed and if filed shall have the effect of a civil judgment."

     Section 10. A new section of the Children's Code General Provisions Act is enacted to read:

     "CHILD'S ATTORNEY--POWERS AND DUTIES.--

          A. An attorney shall represent a child in a proceeding for which the attorney has been retained or appointed. The attorney shall provide the same manner of legal representation and be bound by the same duties to the child as is due an adult client, in accordance with the rules of professional conduct.

          B. Unless excused by a court, an attorney appointed to represent a child shall represent the child in any subsequent appeals.

          C. An attorney representing a child in a proceeding pursuant to the Abuse and Neglect Act may retain separate counsel to represent the child in a tort action on a contingency fee basis or any other cause of action in proceedings that are outside the jurisdiction of the children's court. When a child's attorney retains separate counsel to represent the child, the attorney shall provide the court with written notice within ten days of retaining the separate counsel. The child's attorney shall not retain or subsequently obtain any pecuniary interest in an action filed on behalf of the child outside of the jurisdiction of the children's court."

     Section 11. Section 32A-2-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 32, as amended) is amended to read:

     "32A-2-3. DEFINITIONS.--As used in the Delinquency Act:

          A. "delinquent act" means an act committed by a child that would be designated as a crime under the law if committed by an adult, including the following offenses:

                (1) an offense pursuant to municipal traffic codes or the Motor Vehicle Code:

                     (a) driving while under the influence of intoxicating liquor or drugs;

                     (b) failure to stop in the event of an accident causing death, personal injury or damage to property;

                     (c) unlawful taking of a vehicle or motor vehicle;

                     (d) receiving or transferring of a stolen vehicle or motor vehicle;

                     (e) homicide by vehicle;

                     (f) injuring or tampering with a vehicle;

                     (g) altering or changing of an engine number or other vehicle identification numbers;

                     (h) altering or forging of a driver's license or permit or any making of a fictitious license or permit;

                     (i) reckless driving;

                     (j) driving with a suspended or revoked license; or

                     (k) an offense punishable as a felony;

                (2) buying, attempting to buy, receiving, possessing or being served any alcoholic liquor or being present in a licensed liquor establishment, other than a restaurant or a licensed retail liquor establishment, except in the presence of the child's parent, guardian, custodian or adult spouse. As used in this paragraph, "restaurant" means an establishment where meals are prepared and served primarily for on-premises consumption and that has a dining room, a kitchen and the employees necessary for preparing, cooking and serving meals. "Restaurant" does not include an establishment, as defined in regulations promulgated by the director of the special investigations division of the department of public safety, that serves only hamburgers, sandwiches, salads and other fast foods;

                (3) a violation of Section 30-29-2 NMSA 1978, regarding the illegal use of a glue, aerosol spray product or other chemical substance;

                (4) a violation of the Controlled Substances Act;

                (5) escape from the custody of a law enforcement officer or a juvenile probation or parole officer or from any placement made by the department by a child who has been adjudicated a delinquent child;

                (6) a violation of Section 30-15-1.1 NMSA 1978 regarding unauthorized graffiti on personal or real property; or

                (7) a violation of an order of protection issued pursuant to the provisions of the Family Violence Protection Act;

          B. "delinquent child" means a child who has committed a delinquent act;

          C. "delinquent offender" means a delinquent child who is subject to juvenile sanctions only and who is not a youthful offender or a serious youthful offender;

          D. "detention facility" means a place where a child may be detained under the Children's Code pending court hearing and does not include a facility for the care and rehabilitation of an adjudicated delinquent child;

          E. "felony" means an act that would be a felony if committed by an adult;

          F. "misdemeanor" means an act that would be a misdemeanor or petty misdemeanor if committed by an adult;

          G. "restitution" means financial reimbursement by the child to the victim or community service imposed by the court and is limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical, psychiatric and psychological treatment for injury to a person and lost wages resulting from physical injury, which are a direct and proximate result of a delinquent act. "Restitution" does not include reimbursement for damages for mental anguish, pain and suffering or other intangible losses. As used in this subsection, "victim" means a person who is injured or suffers damage of any kind by an act that is the subject of a complaint or referral to law enforcement officers or juvenile probation authorities. Nothing contained in this definition limits or replaces the provisions of Subsections A and B of Section 32A-2-27 NMSA 1978;

          H. "serious youthful offender" means an individual fifteen to eighteen years of age who is charged with and indicted or bound over for trial for first degree murder. A "serious youthful offender" is not a delinquent child as defined pursuant to the provisions of this section; and

          I. "youthful offender" means a delinquent child subject to adult or juvenile sanctions who is:

                (1) fourteen to eighteen years of age at the time of the offense and who is adjudicated for at least one of the following offenses:

                     (a) second degree murder, as provided in Section 30-2-1 NMSA 1978;

                     (b) assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978;

                     (c) kidnapping, as provided in

Section 30-4-1 NMSA 1978;

                     (d) aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978;

                     (e) aggravated battery against a household member, as provided in Subsection C of Section 30-3-16 NMSA 1978;

                     (f) aggravated battery upon a peace officer, as provided in Subsection C of Section 30-22-25 NMSA 1978;

                     (g) shooting at a dwelling or occupied building or shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;

                     (h) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978;

                     (i) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

                     (j) robbery, as provided in Section

30-16-2 NMSA 1978;

                     (k) aggravated burglary, as provided in Section 30-16-4 NMSA 1978;

                     (l) aggravated arson, as provided in Section 30-17-6 NMSA 1978; or

                     (m) abuse of a child that results in great bodily harm or death to the child, as provided in Section 30-6-1 NMSA 1978;

                (2) fourteen to eighteen years of age at the time of the offense and adjudicated for any felony offense and who has had three prior, separate felony adjudications within a three-year time period immediately preceding the instant offense. The felony adjudications relied upon as prior adjudications shall not have arisen out of the same transaction or occurrence or series of events related in time and location. Successful completion of consent decrees are not considered a prior adjudication for the purposes of this paragraph; or

                (3) fourteen years of age and adjudicated for first degree murder, as provided in Section 30-2-1 NMSA 1978."

     Section 12. Section 32A-2-7 NMSA 1978 (being Laws 1993, Chapter 77, Section 36) is amended to read:

     "32A-2-7. COMPLAINTS--REFERRAL--PRELIMINARY INQUIRY--NOTICE--TIME WAIVER.--

          A. Complaints alleging delinquency shall be referred to probation services, which shall conduct a preliminary inquiry to determine the best interests of the child and of the public with regard to any action to be taken.

          B. During the preliminary inquiry on a delinquency complaint, the matter may be referred to another appropriate agency and conferences may be conducted for the purpose of effecting adjustments or agreements that will obviate the necessity for filing a petition. At the commencement of the preliminary inquiry, the parties shall be advised of their basic rights pursuant to Section 32A-2-14 NMSA 1978, and no party may be compelled to appear at any conference, to produce any papers or to visit any place. The child shall be informed of the child's right to remain silent. The preliminary inquiry shall be completed within the time limits set forth in the Children's Court Rules.

          C. Prior to a preliminary inquiry being conducted with a child who is detained, the child's parent, guardian or custodian or the child's attorney shall be given reasonable notice by the juvenile probation and parole officer and an opportunity to be present at the preliminary inquiry. If a child is not detained, the preliminary inquiry shall be conducted within thirty days of receipt of the referral from law enforcement. The thirty-day time period may be extended upon a determination by the department that an extension is necessary to conduct a thorough preliminary inquiry and that the extension is not prejudicial to the best interests of the child.

          D. When a child is in detention or custody and the children's court attorney does not file a petition within the time limits authorized by the Children's Court Rules, the child shall be released immediately. If a child is not detained and a determination is made to file a petition, the petition shall be filed within sixty days of completion of the preliminary inquiry, unless a motion is granted to extend the time limit for good cause shown. If a child is not in custody or detention, a petition shall not be dismissed for failure to comply with the time limit set forth in this subsection unless there is a showing of prejudice to the child.

          E. After completion of the preliminary inquiry on a delinquency complaint involving a misdemeanor, probation services may notify the children's court attorney and recommend an appropriate disposition for the case. If the child has been referred for three or more prior misdemeanors within two years of the instant offense, probation services shall notify the children's court attorney and recommend an appropriate disposition for the case.

          F. Probation services shall notify the children's court attorney of the receipt of any complaint involving an act that constitutes a felony under the applicable criminal law. Probation services shall also recommend a disposition to the children's court attorney.

          G. The child, through counsel, and the children's court attorney may agree, without judicial approval, to a waiver of time limitations imposed after a petition is filed. A time waiver defers adjudication of the charges. The children's court attorney may place restrictions on a child's behavior as a condition of a time waiver. If the child completes the agreed upon conditions and no new charges are filed against the child, the pending petition shall be dismissed. If the children's court attorney files a new petition against the child, the children's court attorney may proceed on both the original petition and the new charges. The department shall become a party if probation services are requested as a condition of the time waiver."

     Section 13. Section 32A-2-10 NMSA 1978 (being Laws 1993, Chapter 77, Section 39, as amended) is amended to read:

     "32A-2-10. RELEASE OR DELIVERY FROM CUSTODY.--

          A. A person taking a child into custody shall, with all reasonable speed:

                (1) release the child to the child's parent, guardian or custodian and issue verbal counsel or warning as may be appropriate;

                (2) release the child to the child's parent, guardian or custodian upon their written promise to bring the child before the court when requested by the court. If the parent, guardian or custodian fails, when requested, to bring the child before the court as promised, the court may order the child taken into custody and brought before the court;

                (3) deliver the child to a place of detention as provided in Section 32A-2-12 NMSA 1978;

                (4) deliver the child to a medical facility, if available, if the child is believed to be suffering from a serious illness that requires prompt treatment or prompt diagnosis; or

                (5) deliver the child to an evaluation facility, if available, if the person taking the child into custody has reasonable grounds to believe the child presents a likelihood of serious harm to himself or others or is suffering from some other serious mental condition or illness that requires prompt treatment or prompt diagnosis.

           B. When an alleged delinquent child is delivered to a place of detention as provided in Section 32A-2-12 NMSA 1978, only a department employee or a trained county detention professional designated by the department may place the child in detention, in accordance with the criteria for detention set forth in Section 32A-2-11 NMSA 1978. If the criteria for detention of an alleged delinquent child are not met, the child shall be released from custody.

          C. A child under the age of eleven shall not be held in detention. If a child under the age of eleven poses a substantial risk of harm to himself or others, a peace officer may detain and transport that child for emergency mental health evaluation and care in accordance with Section 32A-6-11 NMSA 1978.

          D. If a child is taken into custody and is not released to the child's parent, guardian or custodian, the person taking the child into custody shall give written notice thereof as soon as possible, and in no case later than twenty-four hours, to the child's parent, guardian or custodian and to the court, together with a statement of the reason for taking the child into custody.

          E. In all cases when a child is taken into custody, the child shall be released to the child's parent, guardian or custodian in accordance with the conditions and time limits set forth in the Children's Court Rules."

     Section 14. Section 32A-2-12 NMSA 1978 (being Laws 1993, Chapter 77, Section 41, as amended) is amended to read:

     "32A-2-12. PLACEMENT OR DETENTION.--

          A. A child alleged to be a delinquent child may be placed or detained, pending a court hearing, in any of the following places:

                (1) a licensed foster home or a home otherwise authorized under the law to provide foster or group care;

                (2) a facility operated by a licensed child welfare services agency;

                (3) a shelter-care facility provided for in the Children's Shelter Care Act or a detention facility certified by the department for children alleged to be delinquent children;

                (4) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent may be confined pursuant to Section 32A-2-19 NMSA 1978, designated by the court and which meets the standards for detention facilities pursuant to the Children's Code and federal law; or

                (5) the child's home or place of residence, under conditions and restrictions approved by the court.

          B. A child alleged to be a youthful offender may be detained, pending a court hearing, in any of the following places:

                (1) a detention facility, licensed by the department, for children alleged to be delinquent children; or

                (2) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent children may be confined pursuant to Section

32A-2-19 NMSA 1978, designated by the court and that meets the standards for detention facilities pursuant to the Children's Code and federal law.

          C. A child adjudicated as a youthful offender who is violent toward staff or other residents in a detention facility may be transferred and detained, pending a court hearing, in a county jail. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of his age, and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult.

          D. A child who has previously been incarcerated as an adult or a person eighteen years of age or older shall not be detained in a juvenile detention facility or a facility for the long-term care and rehabilitation of delinquent children, but may be detained in a county jail. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of his age, and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult.

          E. A child alleged to be a serious youthful offender may be detained pending a court hearing in any of the following places, prior to arraignment in metropolitan, magistrate or district court:

                (1) a detention facility, licensed by the department, for children alleged to be delinquent children;

                (2) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent children may be confined pursuant to Section

32A-2-19 NMSA 1978, designated by the court which meets the standards for detention facilities pursuant to the Children's Code and federal law; or

                (3) a county jail, if a facility in Paragraph (1) or (2) of this subsection is not appropriate. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of his age and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult.

          F. When a person who is eighteen years of age or older is taken into custody and transported to an adult facility on a juvenile warrant or an adult warrant or other adult charges and an outstanding juvenile warrant exists, notice shall be given to the children's court attorney and the juvenile probation and parole office in the jurisdiction where the juvenile warrant was issued within one day of the person being taken into custody. The juvenile probation and parole office shall give notice that the person has been taken into custody to the children's court judge and the attorney who represented the person in the juvenile proceeding."

     Section 15. Section 32A-2-17 NMSA 1978 (being Laws 1993, Chapter 77, Section 46, as amended) is amended to read:

     "32A-2-17. PREDISPOSITION STUDIES--REPORTS AND EXAMINATIONS.--

          A. After a petition has been filed and either a finding with respect to the allegations of the petition has been made or a notice of intent to admit the allegations of the petition has been filed, the court may direct that a predisposition study and report to the court be made in writing by the department or an appropriate agency designated by the court concerning the child, the family of the child, the environment of the child and any other matters relevant to the need for treatment or to appropriate disposition of the case. The following predisposition reports shall be provided to the parties and the court five days before actual disposition or sentencing:

                (1) the adult probation and parole division of the corrections department shall prepare a predisposition report for a serious youthful offender;

                (2) the department shall prepare a predisposition report for a serious youthful offender who is convicted of an offense other than first degree murder;

                (3) the department shall prepare a predisposition report for a youthful offender concerning the youthful offender's amenability to treatment and if:

                     (a) the court determines that a juvenile disposition is appropriate, the department shall prepare a subsequent predisposition report; or

                     (b) the court makes the findings necessary to impose an adult sentence pursuant to Section 32A-2-20 NMSA 1978, the adult probation and parole division of the corrections department shall prepare a subsequent predisposition report; and

                (4) the department shall prepare a predisposition report for a delinquent offender, upon the court's request.

           B. Where there are indications that the child may have a mental disorder or developmental disability, the court, on motion by the children's court attorney or that of counsel for the child, may order the child to be examined at a suitable place by a physician, a licensed psychologist or a licensed independent social worker prior to a hearing on the merits of the petition. An examination made prior to the hearing or as a part of the predisposition study and report shall be conducted on an outpatient basis, unless the court finds that placement in a hospital or other appropriate facility is necessary.

           C. The court, after a hearing, may order examination by a physician, a licensed psychologist or a licensed independent social worker of a parent or custodian whose ability to care for or supervise a child is an issue before the court.

           D. The court may order that a child adjudicated as a delinquent child be transferred to the facility designated by the secretary of the department for a period of not more than fifteen days within a three hundred sixty-five day time period for purposes of diagnosis, with direction that the court be given a report indicating what disposition appears most suitable when the interests of the child and the public are considered.

           E. Once the child is committed, the department shall determine when the child is released. The release shall be any time after commitment, but not more than fifteen days after commitment. Upon petition by the department to the court, the judge may extend the commitment for an additional fifteen days upon good cause shown."

     Section 16. Section 32A-2-19 NMSA 1978 (being Laws 1993, Chapter 77, Section 48, as amended by Laws 2003, Chapter 225, Section 10 and by Laws 2003, Chapter 239, Section 5) is amended to read:

     "32A-2-19. DISPOSITION OF AN ADJUDICATED DELINQUENT OFFENDER.--

          A. At the conclusion of the dispositional hearing, the court may make and include in the dispositional judgment its findings on the following:

                (1) the interaction and interrelationship of the child with the child's parents, siblings and any other person who may significantly affect the child's best interests;

                (2) the child's adjustment to his home, school and community;

                (3) the mental and physical health of all individuals involved;

                (4) the wishes of the child as to his custodian;

                (5) the wishes of the child's parents as to the child's custody;

                (6) whether there exists a relative of the child or other individual who, after study by the department, is found to be qualified to receive and care for the child;

                (7) the availability of services recommended in the predisposition report; and

                (8) the ability of the parents to care for the child in the home.

          B. If a child is found to be delinquent, the court may impose a fine not to exceed the fine that could be imposed if the child were an adult and may enter its judgment making any of the following dispositions for the supervision, care and rehabilitation of the child:

                (1) transfer legal custody to the department, an agency responsible for the care and rehabilitation of delinquent children, which shall receive the child at a facility designated by the secretary of the department as a juvenile reception facility. The department shall thereafter determine the appropriate placement, supervision and rehabilitation program for the child. The judge may include recommendations for placement of the child. Commitments are subject to limitations and modifications set forth in Section 32A-2-23 NMSA 1978. The types of commitments include:

                     (a) a short-term commitment of one year in a facility for the care and rehabilitation of adjudicated delinquent children. No more than nine months shall be served at the facility and no less than ninety days shall be served on parole, unless: 1) a petition to extend the commitment has been filed prior to the commencement of parole; 2) the commitment has been extended pursuant to Section 32A-2-23 NMSA 1978; or 3) parole is revoked pursuant to Section 32A-2-25 NMSA 1978;

                     (b) a long-term commitment for no more than two years in a facility for the care and rehabilitation of adjudicated delinquent children. No more than twenty-one months shall be served at the facility and no less than ninety days shall be served on parole, unless: 1) parole is revoked pursuant to Section 32A-2-25 NMSA 1978; or 2) the commitment is extended pursuant to Section 32A-2-23 NMSA 1978;

                     (c) if the child is a delinquent offender who committed one of the criminal offenses set forth in Subsection I of Section 32A-2-3 NMSA 1978, a commitment to age twenty-one, unless sooner discharged; or

                     (d) if the child is a youthful offender, a commitment to age twenty-one, unless sooner discharged;

                (2) place the child on probation under those conditions and limitations as the court may prescribe;

                (3) place the child in a local detention facility that has been certified in accordance with the provisions of Section 32A-2-4 NMSA 1978 for a period not to exceed fifteen days within a three hundred sixty-five day time period; or if a child is found to be delinquent solely on the basis of Paragraph (3) of Subsection A of Section

32A-2-3 NMSA 1978, the court shall only enter a judgment placing the child on probation or ordering restitution or imposing a fine not to exceed the fine that could be imposed if the child were an adult or any combination of these dispositions; or

                (4) if a child is found to be delinquent solely on the basis of Paragraph (2), (3) or (4) of Subsection A of Section 32A-2-3 NMSA 1978, the court may make any disposition provided by this section and may enter its judgment placing the child on probation and, as a condition of probation, transfer custody of the child to the department for a period not to exceed six months without further order of the court; provided that this transfer shall not be made unless the court first determines that the department is able to provide or contract for adequate and appropriate treatment for the child and that the treatment is likely to be beneficial.

          C. When the child is an Indian child, the Indian child's cultural needs shall be considered in the dispositional judgment and reasonable access to cultural practices and traditional treatment shall be provided.

          D. A child found to be delinquent shall not be committed or transferred to a penal institution or other facility used for the execution of sentences of persons convicted of crimes.

          E. Whenever the court vests legal custody in an agency, institution or department, it shall transmit with the dispositional judgment copies of the clinical reports, predisposition study and report and other information it has pertinent to the care and treatment of the child.

          F. Prior to any child being placed in the custody of the department, the department shall be provided with reasonable oral or written notification and an opportunity to be heard.

          G. In addition to any other disposition pursuant to Subsection B of this section, the court may make an abuse or neglect report for investigation and proceedings as provided for in the Abuse and Neglect Act. The report may be made to a local law enforcement agency, the department or a tribal law enforcement or social service agency for an Indian child residing in Indian country.

          H. In addition to any other disposition pursuant to this section or any other penalty provided by law, if a child fifteen years of age or older is adjudicated delinquent on the basis of Paragraph (2), (3) or (4) of Subsection A of Section 32A-2-3 NMSA 1978, the child's driving privileges may be denied or the child's driver's license may be revoked for a period of ninety days. For a second or a subsequent adjudication, the child's driving privileges may be denied or the child's driver's license revoked for a period of one year. Within twenty-four hours of the dispositional judgment, the court may send to the motor vehicle division of the taxation and revenue department the order adjudicating delinquency. Upon receipt of an order from the court adjudicating delinquency, the director of the motor vehicle division of the taxation and revenue department may revoke or deny the delinquent's driver's license or driving privileges. Nothing in this section may prohibit the delinquent from applying for a limited driving privilege pursuant to Section 66-5-35 NMSA 1978 or an ignition interlock license pursuant to the Ignition Interlock Licensing Act, and nothing in this section precludes the delinquent's participation in an appropriate educational, counseling or rehabilitation program.

          I. In addition to any other disposition pursuant to this section or any other penalty provided by law, when a child is adjudicated delinquent on the basis of Paragraph (6) of Subsection A of Section 32A-2-3 NMSA 1978, the child shall perform the mandatory community service set forth in Section 30-15-1.1 NMSA 1978. When a child fails to completely perform the mandatory community service, the name and address of the child's parent or legal guardian shall be published in a newspaper of general circulation, accompanied by a notice that he is the parent or legal guardian of a child adjudicated delinquent for committing graffiti."

     Section 17. Section 32A-2-20 NMSA 1978 (being Laws 1993, Chapter 77, Section 49, as amended) is amended to read:

     "32A-2-20. DISPOSITION OF A YOUTHFUL OFFENDER.--

          A. The court has the discretion to invoke either an adult sentence or juvenile sanctions on a youthful offender. The children's court attorney shall file a notice of intent to invoke an adult sentence within ten working days of the filing of the petition, provided that the court may extend the time for filing of the notice of intent to invoke an adult sentence, for good cause shown, prior to the adjudicatory hearing. A preliminary hearing by the court or a hearing before a grand jury shall be held, within ten days after the filing of the intent to invoke an adult sentence, to determine whether probable cause exists to support the allegations contained in the petition.

           B. If the children's court attorney has filed a notice of intent to invoke an adult sentence and the child is adjudicated as a youthful offender, the court shall make the following findings in order to invoke an adult sentence:

                (1) the child is not amenable to treatment or rehabilitation as a child in available facilities; and

                (2) the child is not eligible for commitment to an institution for children with developmental disabilities or mental disorders.

          C. In making the findings set forth in Subsection B of this section, the judge shall consider the following factors:

                (1) the seriousness of the alleged offense;

                (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

                (3) whether a firearm was used to commit the alleged offense;

                (4) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;

                (5) the sophistication and maturity of the child as determined by consideration of the child's home, environmental situation, emotional attitude and pattern of living;

                (6) the record and previous history of the child;

                (7) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available; and

                (8) any other relevant factor, provided that factor is stated on the record.

          D. If a child has previously been sentenced as an adult pursuant to the provisions of this section, there shall be a rebuttable presumption that the child is not amenable to treatment or rehabilitation as a child in available facilities.

          E. If the court invokes an adult sentence, the court may sentence the child to less than, but shall not exceed, the mandatory adult sentence. A youthful offender given an adult sentence shall be treated as an adult offender and shall be transferred to the legal custody of an agency responsible for incarceration of persons sentenced to adult sentences. This transfer terminates the jurisdiction of the court over the child with respect to the delinquent acts alleged in the petition.

          F. If a juvenile disposition is appropriate, the court shall follow the provisions set forth in Section

32A-2-19 NMSA 1978. A youthful offender may be subject to extended commitment in the care of the department until the age of twenty-one, pursuant to the provisions of Section

32A-2-23 NMSA 1978.

          G. A child fourteen years of age or older, charged with first degree murder, but not convicted of first degree murder and found to have committed a youthful offender offense as set forth in Subsection I of Section 32A-2-3 NMSA 1978, is subject to the dispositions set forth in this section.

          H. A child fourteen years of age or older charged with first degree murder, but found to have committed a delinquent act that is neither first degree murder nor a youthful offender offense as set forth in Subsection I of Section 32A-2-3 NMSA 1978, shall be adjudicated as a delinquent subject to the dispositions set forth in Section 32A-2-19 NMSA 1978."

     Section 18. Section 32A-2-21 NMSA 1978 (being Laws 1993, Chapter 77, Section 50, as amended) is amended to read:

     "32A-2-21. DISPOSITION OF A CHILD WITH A MENTAL DISORDER OR DEVELOPMENTAL DISABILITY IN A DELINQUENCY PROCEEDING.--

          A. If in a hearing at any stage of a proceeding on a delinquency petition the evidence indicates that the child has or may have a mental disorder or developmental disability, the court may:

                 (1) order the child detained if appropriate under the criteria established pursuant to the provisions of the Delinquency Act; and

                (2) initiate proceedings for the involuntary placement of the child as a minor with a mental disorder or developmental disability pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.

          B. If the child is placed for residential treatment or habilitation pursuant to the Children's Mental Health and Developmental Disabilities Act, the department shall retain legal custody during the period of involuntary placement or until further order of the court.

          C. If a child is committed to a psychiatric hospital for treatment or habilitation and in the event that the department should be required to pay more than four hundred dollars ($400) per day because of the individualized treatment plan, the annual costs over four hundred dollars ($400) per child per day will be reported annually by the department to the legislative finance committee.

          D. The child may remain in the residential treatment or habilitation facility pending the disposition of the delinquency petition.

          E. When a child in departmental custody needs involuntary placement for residential mental health or developmental disability services as a result of a mental disorder or developmental disability, the department shall request the children's court attorney to petition for that child's placement pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.

          F. A child subject to the provisions of the Delinquency Act who receives treatment in a residential treatment or habilitation program shall enjoy all the substantive and procedural rights set forth in the Children's Mental Health and Developmental Disabilities Act.

          G. A child's competency to stand trial or participate in his own defense may be raised by a party at any time during a proceeding. If the child has been accused of an act that would be considered a misdemeanor if the child were an adult and the child is found to be incompetent to stand trial, the court shall dismiss the petition with prejudice and may recommend that the children's court attorney initiate proceedings pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. In all other cases, the court shall stay the proceedings until the child is competent to stand trial; provided that a petition shall not be stayed for more than one year. The court may order treatment to enable the child to attain competency to stand trial and may amend the conditions of release pursuant to Sections 32A-2-11 and

32A-2-13 NMSA 1978. The child's competency to stand trial shall be reviewed every ninety days for up to one year. The court shall dismiss the petition without prejudice if, at any time during the year, the court finds that a child cannot be treated to competency or if, after one year, the court determines that a child is incompetent to stand trial or participate in his own defense. Upon dismissal, the court may recommend that the children's court attorney initiate proceedings pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.

          H. Involuntary residential treatment shall only occur pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act."

     Section 19. Section 32A-2-22 NMSA 1978 (being Laws 1993, Chapter 77, Section 51, as amended) is amended to read:

     "32A-2-22. CONTINUANCE UNDER SUPERVISION WITHOUT JUDGMENT--CONSENT DECREE--DISPOSITION.--

          A. At any time after the filing of a delinquency petition and before the entry of a judgment, the court may, on motion of the children's court attorney or that of counsel for the child, suspend the proceedings and continue the child under supervision in the child's own home under terms and conditions negotiated with probation services and agreed to by all the parties affected. The court's order continuing the child under supervision under this section shall be known as a "consent decree". An admission of some or all of the allegations stated in the delinquency petition shall not be required for a consent decree order.

           B. If the child objects to a consent decree, the court shall proceed to findings, adjudication and disposition of the case. If the child does not object but an objection is made by the children's court attorney after consultation with probation services, the court shall, after considering the objections and the reasons given, proceed to determine whether it is appropriate to enter a consent decree and may, in its discretion, enter the consent decree.

           C. A consent decree shall remain in force for six months unless the child is discharged sooner by probation services. Prior to the expiration of the six-month period and upon the application of probation services or any other agency supervising the child under a consent decree, the court may extend the decree for an additional six months in the absence of objection to extension by the child. If the child objects to the extension, the court shall hold a hearing and make a determination on the issue of extension.

           D. If either prior to discharge by probation services or expiration of the consent decree the child allegedly fails to fulfill the terms of the decree, the children's court attorney may file a petition to revoke the consent decree. Proceedings on the petition shall be conducted in the same manner as proceedings on petitions to revoke probation. If the child is found to have violated the terms of the consent decree, the court may:

                 (1) extend the period of the consent decree; or

                (2) make any other disposition that would have been appropriate in the original proceeding.

          E. A child who is discharged by probation services or who completes a period under supervision without reinstatement of the original delinquency petition shall not again be proceeded against in any court for the same offense alleged in the petition or an offense based upon the same conduct and the original petition shall be dismissed with prejudice. Nothing in this subsection precludes a civil suit against the child for damages arising from the child's conduct.

           F. A judge who pursuant to this section elicits or examines information or material about a child that would be inadmissible in a hearing on the allegations of the petition shall not, over the objection of the child, participate in any subsequent proceedings on the delinquency if:

                (1) a consent decree is denied and the allegations in the petition remain to be decided in a hearing where the child denies the allegations; or

                 (2) a consent decree is granted but the delinquency petition is subsequently reinstated.

          G. If a consent decree has been entered pursuant to the filing of a delinquency petition based on Paragraph (2), (3) or (4) of Subsection A of Section 32A-2-3 NMSA 1978 for a child who is fifteen years of age or older, a condition of the consent decree agreement may be the denial of the child's driving privileges or the revocation of the child's driver's license for a period of ninety days. For the second or subsequent adjudication, the child's driving privileges may be denied or the child's driver's license revoked for a period of one year. Within twenty-four hours of the entry by the court of a decree consenting to the revocation or denial of the child's driver's license or driving privileges, the court shall send the decree to the motor vehicle division of the taxation and revenue department. Upon receipt of the decree from the court consenting to the denial or revocation of the child's driving privileges or driver's license, the director of the motor vehicle division of the taxation and revenue department shall revoke or deny the delinquent child's driver's license or driving privileges. Nothing in this section shall prohibit the delinquent child from applying for a limited driving privilege pursuant to Section 66-5-35 NMSA 1978 or an ignition interlock license pursuant to the Ignition Interlock Licensing Act, and nothing in this section precludes the delinquent child's participation in an appropriate educational, counseling or rehabilitation program."

     Section 20. Section 32A-2-23 NMSA 1978 (being Laws 1993, Chapter 77, Section 52, as amended) is amended to read:

     "32A-2-23. LIMITATIONS ON DISPOSITIONAL JUDGMENTS--MODIFICATION--TERMINATION OR EXTENSION OF COURT ORDERS.--

          A. A judgment transferring legal custody of an adjudicated delinquent child to an agency responsible for the care and rehabilitation of delinquent children divests the court of jurisdiction at the time of transfer of custody, unless the transfer of legal custody is for a commitment not exceeding fifteen days pursuant to the provisions of

Section 32A-2-19 NMSA 1978, in which case the court retains jurisdiction, and:

                (1) the juvenile parole board pursuant to the Juvenile Parole Board Act has the exclusive power to parole or release the child, subject to the provisions of Section 32A-7-8 NMSA 1978;

                (2) the supervision of a child after release under Paragraph (1) of this subsection shall be conducted by the department; and

                (3) the period of time a child absconds from parole or probation supervision shall toll all time limits for the requirement of filing a petition to revoke probation or parole and shall toll the computation of the period of probation or parole supervision pursuant to the provisions of the Delinquency Act.

          B. A judgment of probation or protective supervision shall remain in force for an indeterminate period not to exceed the term of commitment from the date entered.

          C. A child shall be released by an agency and probation or supervision shall be terminated by juvenile probation and parole services or the agency providing supervision when it appears that the purpose of the order has been achieved before the expiration of the period of the judgment. A release or termination and the reasons therefor shall be reported promptly to the court in writing by the releasing authority.

          D. Prior to the expiration of a short-term commitment of one year, as provided for in Section 32A-2-19 NMSA 1978, the court may extend the judgment for up to one six-month period if the court finds that the extension is necessary to safeguard the welfare of the child or the public safety. If a short-term commitment is extended, the mandatory ninety-day parole, as required by Section 32A-2-19 NMSA 1978, shall be included in the extension. Notice and hearing are required for any extension of a juvenile's commitment.

          E. Prior to the expiration of a long-term commitment, as provided for in Section 32A-2-19 NMSA 1978, the court may extend the judgment for additional periods of one year until the child reaches the age of twenty-one if the court finds that the extension is necessary to safeguard the welfare of the child or the public safety. If a long-term commitment is extended, the mandatory ninety-day parole, as required by Section 32A-2-19 NMSA 1978, shall be included in the extension. Notice and hearing are required for any extension of a juvenile's commitment.
         F. Prior to the expiration of a judgment of probation, the court may extend the judgment for an additional period of one year until the child reaches the age of twenty-one if the court finds that the extension is necessary to protect the community or to safeguard the welfare of the child.

          G. The court may dismiss a motion if it finds after preliminary investigation that the motion is without substance. If the court is of the opinion that the matter should be reviewed, it may, upon notice to all necessary parties, proceed to a hearing in the manner provided for hearings on petitions alleging delinquency. The court may terminate a judgment if it finds that the child is no longer in need of care, supervision or rehabilitation or it may enter a judgment extending or modifying the original judgment if it finds that action necessary to safeguard the child or the public interest.

          H. A child may make a motion to modify a children's court or adult disposition within thirty days of the judge's decision. If the court is of the opinion that the matter should be reviewed, it may, upon notice to all necessary parties, proceed to a hearing in the manner provided for hearings on petitions alleging delinquency."

     Section 21. Section 32A-2-25 NMSA 1978 (being Laws 1993, Chapter 77, Section 54) is amended to read:

     "32A-2-25. PAROLE REVOCATION--PROCEDURES.--

          A. A child on parole from an agency that has legal custody who violates a term of parole may be proceeded against in a parole revocation proceeding conducted by the department or the supervising agency or by a hearing officer contracted by the department who is neutral to the child and the agency in accordance with procedures established by the department in cooperation with the juvenile parole board. A juvenile probation and parole officer may detain a child on parole status who is alleged to have violated a term or condition of parole until the completion and review of a preliminary parole revocation hearing. A child may waive the right to a preliminary parole revocation hearing after consultation with the child's attorney, parent, guardian or custodian.

          B. If a retake warrant is issued by the department upon the completion of the preliminary parole revocation hearing, the juvenile institution to which the warrant is issued shall promptly transport the child to that institution at the expense of the department. If a child absconds from parole supervision and is apprehended in another state after the issuance of a retake warrant by the department, the juvenile justice division of the department shall cause the return of the child to this state at the expense of the department."

     Section 22. Section 32A-2-27 NMSA 1978 (being Laws 1993, Chapter 77, Section 56) is amended to read:

     "32A-2-27. INJURY TO PERSON OR DESTRUCTION OF

PROPERTY--LIABILITY--COSTS AND ATTORNEY FEES--RESTITUTION.--

          A. Any person may recover damages not to exceed four thousand dollars ($4,000) in a civil action in a court or tribunal of competent jurisdiction from the parent or guardian having custody and control of a child when the child has maliciously or willfully injured a person or damaged, destroyed or deprived use of property, real or personal, belonging to the person bringing the action.

          B. Recovery of damages under this section is limited to the actual damages proved in the action, not to exceed four thousand dollars ($4,000) taxable court costs and, in the discretion of the court, reasonable attorney fees to be fixed by the court or tribunal.

          C. Nothing contained in this section limits the discretion of the court to issue an order requiring damages or restitution to be paid by the child when the child has been found to be within the provisions of the Delinquency Act.

          D. Nothing contained in this section shall be construed so as to impute liability to any foster parent."

     Section 23. Section 32A-2-30 NMSA 1978 (being Laws 1993, Chapter 77, Section 59) is amended to read:

     "32A-2-30. INDIGENCY STANDARD--FEE SCHEDULE--REIMBURSEMENT.--

          A. The court shall use a standard adopted and information provided by the public defender department to determine indigency of children in proceedings on petitions alleging delinquency.

          B. The court shall use a fee schedule adopted by the public defender department when appointing attorneys to represent children in proceedings on petitions alleging delinquency.

          C. The court shall order reimbursement from the parents or guardians of a child who has received or desires to receive legal representation or another benefit under the Public Defender Act after a determination is made that the child was not indigent according to the standard for indigency of children adopted by the public defender department.

          D. Any amounts recovered pursuant to this section shall be paid to the state treasurer for credit to the general fund."

     Section 24. Section 32A-2-32 NMSA 1978 (being Laws 1993, Chapter 77, Section 61, as amended) is amended to read:

     "32A-2-32. CONFIDENTIALITY--RECORDS.--

          A. All social records pertaining to the child, including all related diagnostic evaluations, psychiatric reports, medical reports, social studies reports, records from local detention facilities, client-identifying records from facilities for the care and rehabilitation of delinquent children, pre-parole reports and supervision histories obtained by the juvenile probation office, parole officers and parole board or in possession of the department, are confidential and shall not be disclosed directly or indirectly to the public.

          B. The records described in Subsection A of this section shall be disclosed only to:

                (1) court personnel;

                (2) court appointed special advocates;

                (3) the child's attorney or guardian ad litem;

                (4) department personnel;

                (5) any local substitute care review board or any agency contracted to implement local substitute care review boards;

                (6) corrections department personnel;

                (7) law enforcement officials;

                (8) district attorneys;

                (9) any state government social services agency in any state;

                (10) those persons or entities of a child's Indian tribe specifically authorized to inspect such records pursuant to the federal Indian Child Welfare Act of 1978 or any regulations promulgated thereunder;

                (11) tribal juvenile justice system and social service representatives;

                (12) a foster parent, if the records are those of a child currently placed with that foster parent or of a child being considered for placement with that foster parent when the disclosure of the information is necessary for the child's treatment or care and shall include only that information necessary to provide for treatment and care of the child;

                (13) school personnel involved with the child if the records concern the child's educational needs as necessary for the child's educational planning and shall include only that information necessary to provide for the child's educational needs;

                (14) health care or mental health professionals involved in the evaluation or treatment of the child, the child's parents, guardians or custodian or other family members;

                (15) representatives of the protection and advocacy system;

                (16) the child's parent, guardian or legal custodian when the disclosure of the information is necessary for the child's treatment or care and shall include only that information necessary to provide for the treatment or care of the child; and

                (17) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court.

          C. 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.

          D. The department shall promulgate rules for implementing disclosure of records pursuant to this section and in compliance with state and federal law and the Children's Court Rules."

     Section 25. Section 32A-3A-1 NMSA 1978 (being Laws 1993, Chapter 77, Section 63) is amended to read:

     "32A-3A-1. SHORT TITLE--PURPOSE.--

          A. Chapter 32A, Article 3A NMSA 1978 may be cited as the "Family Services Act".

          B. The Family Services Act shall be interpreted and construed to effectuate the following expressed legislative purposes:

                (1) to recognize that many instances of a child's behavior are symptomatic of a family in need of family services; and

                (2) to provide prevention, diversion and intervention services for a child or family."

     Section 26. Section 32A-3A-2 NMSA 1978 (being Laws 1993, Chapter 77, Section 64) is amended to read:

     "32A-3A-2. DEFINITIONS.--As used in the Family Services Act:

          A. "child or family in need of family services" means:

                (1) a family whose child's behavior endangers the child's health, safety, education or

 well-being;

                (2) a family whose child is absent from the child's place of residence for twenty-four hours or more without the consent of the parent, guardian or custodian;

                (3) a family in which the parent, guardian or custodian of a child refuses to permit the child to live with the parent, guardian or custodian; or

                (4) a family in which the child refuses to live with his parent, guardian or custodian; and

          B. "family services" means services that address specific needs of the child or family."

     Section 27. Section 32A-3A-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 65) is amended to read:

     "32A-3A-3. REQUEST FOR FAMILY SERVICES--WITHDRAWAL OF REQUEST--PRESUMPTION OF GOOD FAITH.--

          A. Any child or family member who has a reasonable belief that the child or family is in need of family services may request family services from the department.

          B. Any person who has a reasonable belief that a child or family is in need of family services may submit a referral to the department.

          C. A family that requests or accepts family services may withdraw its request for or acceptance of family services at any time.

          D. A person who refers a child or family for family services is presumed to be acting in good faith and shall be immune from civil or criminal liability, unless the person acted in bad faith or with malicious purpose."

     Section 28. Section 32A-3A-4 NMSA 1978 (being Laws 1993, Chapter 77, Section 66, as amended) is amended to read:

     "32A-3A-4. REFERRAL PROCESS.--

          A. The department shall, subject to the availability of resources, design and implement a referral process to assist a child or family in accessing appropriate services.

          B. When the child involved in the referral process is an Indian child, the assessment and referral process shall include contact with the Indian child's tribe for the purpose of consulting and exchanging information."

     Section 29. Section 32A-3B-1 NMSA 1978 (being Laws 1993, Chapter 77, Section 73) is amended to read:

     "32A-3B-1. SHORT TITLE--PURPOSE.--

          A. Chapter 32A, Article 3B NMSA 1978 may be cited as the "Family in Need of Court-Ordered Services Act".

          B. The Family in Need of Court-Ordered Services Act shall be interpreted and construed to effectuate the following expressed legislative purposes:

                (1) through court intervention, to provide services for a family in need of services when voluntary services have been exhausted; and

                (2) to recognize that many instances of truancy and running away by a child are symptomatic of a family in need of services and that in some family situations the child and parent are unable to share a residence."

     Section 30. Section 32A-3B-4 NMSA 1978 (being Laws 1993, Chapter 77, Section 76) is amended to read:

     "32A-3B-4. PROTECTIVE CUSTODY--RESTRICTIONS--TIME LIMITATIONS.--

          A. A law enforcement officer who takes a child into protective custody shall, with all reasonable speed:

                (1) inform the child of the reasons for the protective custody; and

                (2) contact the department.

          B. When the department is contacted by a law enforcement officer who has taken a child into protective custody, the department may:

                (1) accept custody of the child and designate an appropriate facility in which to place the child; or

                (2) return the child to the child's parent, guardian or custodian if the child's safety is assured.

          C. A child taken into protective custody shall not be placed in or transported in a law enforcement vehicle or any other vehicle that contains an adult placed under arrest, unless circumstances exist in which any delay in transporting the child to an appropriate facility would be likely to result in substantial danger to the child's physical safety. When such circumstances exist, the circumstances shall be described in writing by the driver of the vehicle and submitted to the driver's supervisor within two days after the driver transported the child.

          D. A child taken into protective custody shall not be held involuntarily for more than two days, unless a petition to extend the custody is filed pursuant to the provisions of the Family in Need of Court-Ordered Services Act or the Abuse and Neglect Act.

          E. When a petition is filed or any time thereafter, the children's court or district court may issue an ex-parte custody order based upon a sworn written statement of facts showing that probable cause exists to believe that protective custody of the child is necessary.

          F. The protective custody order shall be served on the respondent by a person authorized to serve arrest warrants and shall direct the law enforcement officer to take custody of the child and deliver the child to a place designated by the court.

          G. The Rules of Evidence do not apply to the issuance of an ex-parte custody order."

     Section 31. Section 32A-3B-5 NMSA 1978 (being Laws 1993, Chapter 77, Section 77) is amended to read:

     "32A-3B-5. NOTIFICATION TO FAMILY--RELEASE FROM PROTECTIVE CUSTODY.--

          A. When the department takes a child into protective custody and the child is not released to the child's parent, guardian or custodian, the department shall provide written notice as soon as possible, and in no case later than twenty-four hours, to the child's parent, guardian or custodian, with a statement of the reasons for taking the child into protective custody.

          B. When the department releases a child placed in protective custody to the family, the department shall refer the family for voluntary family services.

          C. When the department releases a child from protective custody and the child's parent, guardian or custodian refuses to allow the child to return home, the department shall file a petition pursuant to the provisions of the Abuse and Neglect Act.

          D. If the department is not releasing the child to the parent, guardian or custodian within two days, the department shall notify the tribe if the child is an Indian child."

     Section 32. Section 32A-3B-8 NMSA 1978 (being Laws 1993, Chapter 77, Section 80) is amended to read:

     "32A-3B-8. BASIC RIGHTS.--

          A. A child subject to the provisions of the Children's Code is entitled to the same basic rights as an adult, except as otherwise provided in the Children's Code.

          B. In proceedings on a petition alleging a family in need of court-ordered services, the court may appoint counsel if appointment of counsel would serve the interests of justice.

          C. In proceedings on a petition alleging a family in need of court-ordered services, the court shall appoint a guardian ad litem for a child under the age of fourteen and an attorney for a child fourteen years of age or older at the inception of the proceedings. An officer or employee of an agency vested with legal custody of the child shall not be appointed as a guardian ad litem or attorney for the child.

          D. Whenever it is reasonable and appropriate, the court shall appoint a guardian ad litem or attorney who is knowledgeable about the child's cultural background.

          E. A person afforded rights pursuant to the provisions of the Children's Code shall be advised of those rights at that person's first appearance before the court on a petition filed under the Children's Code.

          F. A child of an alleged or adjudicated family in need of court-ordered services shall not be fingerprinted or photographed for identification purposes, unless pursuant to a court order."

     Section 33. Section 32A-3B-9 NMSA 1978 (being Laws 1993, Chapter 77, Section 81) is amended to read:

     "32A-3B-9. CHANGE IN PLACEMENT.--

          A. When a child's placement is changed, including a return to the child's home, written notice of the placement change shall be given to the parties and to the child's tribe if the child is an Indian child ten days prior to the placement change, unless an emergency situation requires moving the child prior to sending notice.

          B. When a child's guardian ad litem or attorney requests a court hearing to contest the proposed placement change, the department shall not change the child's placement pending the result of the court hearing, unless an emergency requires changing the child's placement prior to the hearing.

          C. When a child's placement is changed and notice pursuant to the provisions of Subsection A of this section is not provided, written notice shall be sent to the parties and to the child's tribe if the child is an Indian child within three days after the placement change.

          D. Notice pursuant to the provisions of this section is not required for removal of the child from temporary emergency care, emergency foster care or respite care."

     Section 34. Section 32A-3B-13 NMSA 1978 (being Laws 1993, Chapter 77, Section 85) is amended to read:

     "32A-3B-13. CONDUCT OF HEARINGS--PENALTY.--

          A. All hearings shall be recorded by stenographic notes or by electronic, mechanical or other appropriate means.

          B. All hearings regarding a family in need of court-ordered services shall be closed to the general public, subject to the following exceptions:

                (1) the parties, the parties' counsel, witnesses and other persons approved by the court may be present at the hearings. Those other persons the court finds to have a proper interest in the case or in the work of the court may be admitted by the court to closed hearings on the condition that they refrain from divulging any information that would identify the child or family involved in the proceedings; and

                (2) accredited representatives of the news media shall be allowed to be present at the hearings, subject to the condition that they refrain from divulging information that would identify any child involved in the proceedings or the parent, guardian or custodian of that child and further subject to enabling regulations the court finds necessary for the maintenance of order and decorum and for the furtherance of the purposes of the Children's Code.

          C. If the court finds that it is in the best interest of a child under fourteen years of age, the child may be excluded from a hearing under the Family in Need of Court-Ordered Services Act. A child fourteen years of age or older may be excluded from a hearing only if the court makes a finding that there is a compelling reason to exclude the child and states the factual basis for the finding.

          D. A person or party granted admission to a closed hearing who intentionally divulges information concerning the hearing in violation of the provisions of this section is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."

     Section 35. Section 32A-3B-17 NMSA 1978 (being Laws 1993, Chapter 77, Section 89, as amended) is amended to read:

     "32A-3B-17. DISPOSITION OF A CHILD WITH A DEVELOPMENTAL DISABILITY OR MENTAL DISORDER--PROCEEDINGS.--

          A. If during any stage of a proceeding regarding a family in need of court-ordered services petition the evidence indicates that the child has or may have a developmental disability or a mental disorder, the court may order the department to:

                (1) secure an assessment of the child;

                (2) prepare appropriate referrals for services for the child; and

                (3) if necessary, initiate proceedings for the involuntary placement of the child pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.

          B. When a child in department custody needs involuntary placement for residential mental health or developmental disability services, the department shall file a motion for that child's placement pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.

          C. A court hearing for consideration of an involuntary placement of a child for residential treatment or habilitation, when the child is subject to the provisions of the Family in Need of Court-Ordered Services Act, may be heard by the court as a part of the family in need of

court-ordered services proceedings or may be heard in a separate proceeding. All parties to the family in need of court-ordered services proceedings shall be provided with notice of the involuntary placement hearing.

          D. A guardian ad litem appointed pursuant to the Family in Need of Court-Ordered Services Act shall serve as the guardian ad litem for a child for the purposes of the Children's Mental Health and Developmental Disabilities Act. When a child is fourteen years of age or older, the child shall be represented by an attorney unless, after consultation between the child and the child's attorney, the child elects to be represented by counsel appointed by the court in the proceedings under the Children's Mental Health and Developmental Disabilities Act.

          E. When a child is subject to the provisions of the Family in Need of Court-Ordered Services Act and is receiving residential treatment or habilitation services, any documentation required pursuant to the Children's Mental Health and Developmental Disabilities Act shall be filed with the court as part of the family in need of court-ordered services proceeding. A review of the child's placement in a residential treatment or habilitation program shall occur in the same manner and within the same time requirements as provided in the Children's Mental Health and Developmental Disabilities Act.

          F. The clerk of the court shall maintain a separate section within a child's family in need of

court-ordered services file for documents pertaining to actions taken under the Children's Mental Health and Developmental Disabilities Act.

          G. A child subject to the provisions of the Family in Need of Court-Ordered Services Act who receives treatment in a residential treatment or habilitation program shall enjoy all the substantive and procedural rights set forth in the Children's Mental Health and Developmental Disabilities Act."

     Section 36. Section 32A-3B-22 NMSA 1978 (being Laws 1993, Chapter 77, Section 94) is amended to read:

     "32A-3B-22. CONFIDENTIALITY--RECORDS--PENALTY.--

          A. All records or information concerning a family in need of court-ordered services, including social records, diagnostic evaluation, psychiatric or psychological reports, videotapes, transcripts and audio recordings of a child's statement of abuse or medical reports, obtained as a result of an investigation in anticipation of or incident to a family in need of court-ordered services proceeding shall be confidential and closed to the public.

          B. The records described in Subsection A of this section shall be disclosed only to the parties and to:

                (1) court personnel;

                (2) court appointed special advocates;

                (3) the child's guardian ad litem or attorney;

                (4) the child's attorney representing the child in an abuse or neglect action, a delinquency action or any other action, including a public defender;

                (5) department personnel;

                (6) any local substitute care review board or any agency contracted to implement local substitute care review boards;

                (7) law enforcement officials;

                (8) district attorneys;

                (9) a state or tribal government social services agency of any state;

                (10) those persons or entities of an Indian tribe specifically authorized to inspect the records pursuant to the federal Indian Child Welfare Act of 1978 or any regulations promulgated thereunder;

                (11) tribal juvenile justice system and social service representatives;

                (12) a foster parent, if the records are those of a child currently placed with that foster parent or of a child being considered for placement with that foster parent and the records concern the social, medical, psychological or educational needs of the child;

                (13) school personnel involved with the child, if the records concern the child's social or educational needs;

                (14) health care or mental health professionals involved in the evaluation or treatment of the child, the child's parents, guardian or custodian or other family members;

                (15) protection and advocacy representatives, pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1991; and

                (16) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court.

          C. Whoever intentionally and unlawfully releases any information or records that are closed to the public pursuant to the provisions of the Children's Code or releases or makes other unlawful use of records in violation of that code is guilty of a petty misdemeanor.

          D. The department shall promulgate rules for implementing disclosure of records pursuant to this section and in compliance with state and federal law and the Children's Court Rules."

     Section 37. A new section of the Family in Need of Court-Ordered Services Act is enacted to read:

     "INDIAN CHILD PLACEMENT--PREFERENCES.--

          A. An Indian child accepted in department custody shall be placed in the least restrictive setting that most closely approximates a family in which the child's special needs, if any, may be met. The Indian child shall be placed within reasonable proximity to the child's home, taking into account any special needs of the child. Preference shall be given to placement with:

                (1) a member of the Indian child's extended family;

                (2) a foster care home licensed, approved and specified by the Indian child's tribe;

                (3) an Indian foster care home licensed or approved by an authorized non-Indian licensing authority; or

                (4) an institution for children approved by the Indian child's tribe or operated by an Indian organization that has a program suitable to meet the Indian child's needs.

          B. When the placement preferences set forth in Subsection A of this section are not followed or if the Indian child is placed in an institution, a plan shall be developed to ensure that the Indian child's cultural ties are protected and fostered."

     Section 38. Section 32A-4-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 97, as amended) is amended to read:

     "32A-4-3. DUTY TO REPORT CHILD ABUSE AND CHILD

NEGLECT--RESPONSIBILITY TO INVESTIGATE CHILD ABUSE OR NEGLECT--PENALTY.--

          A. Every person, including a licensed physician; a resident or an intern examining, attending or treating a child; a law enforcement officer; a judge presiding during a proceeding; a registered nurse; a visiting nurse; a schoolteacher; a school official; a social worker acting in an official capacity; or a member of the clergy who has information that is not privileged as a matter of law, who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately to:

                (1) a local law enforcement agency;

                (2) the department; or

                (3) a tribal law enforcement or social services agency for any Indian child residing in Indian country.

          B. A law enforcement agency receiving the report shall immediately transmit the facts of the report and the name, address and phone number of the reporter by telephone to the department and shall transmit the same information in writing within forty-eight hours. The department shall immediately transmit the facts of the report and the name, address and phone number of the reporter by telephone to a local law enforcement agency and shall transmit the same information in writing within forty-eight hours. The written report shall contain the names and addresses of the child and the child's parents, guardian or custodian, the child's age, the nature and extent of the child's injuries, including any evidence of previous injuries, and other information that the maker of the report believes might be helpful in establishing the cause of the injuries and the identity of the person responsible for the injuries. The written report shall be submitted upon a standardized form agreed to by the law enforcement agency and the department.

          C. The recipient of a report under Subsection A of this section shall take immediate steps to ensure prompt investigation of the report. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect. A local law enforcement officer trained in the investigation of child abuse and neglect is responsible for investigating reports of alleged child abuse or neglect at schools, daycare facilities or child care facilities.

           D. If the child alleged to be abused or neglected is in the care or control of or in a facility administratively connected to the department, the report shall be investigated by a local law enforcement officer trained in the investigation of child abuse and neglect. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect.

           E. A law enforcement agency or the department shall have access to any of the records pertaining to a child abuse or neglect case maintained by any of the persons enumerated in Subsection A of this section, except as otherwise provided in the Abuse and Neglect Act.

           F. A person who violates the provisions of Subsection A of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."

     Section 39. Section 32A-4-4 NMSA 1978 (being Laws 1993, Chapter 77, Section 98) is amended to read:

     "32A-4-4. COMPLAINTS--REFERRAL--PRELIMINARY INQUIRY.--

          A. Reports alleging neglect or abuse shall be referred to the department, which shall conduct an investigation to determine the best interests of the child with regard to any action to be taken. The name and information regarding the person making the report shall not be disclosed absent the consent of the informant or a court order.

          B. During the investigation of a report alleging neglect or abuse, the matter may be referred to another appropriate agency and conferences may be conducted for the purpose of effecting adjustments or agreements that will obviate the necessity for filing a petition. A representative of the department shall, at the initial time of contact with the party subject to the investigation, advise the party of the reports or allegations made, in a manner that is consistent with laws protecting the rights of the informant. The parties shall be advised of their basic rights and no party may be compelled to appear at any conference, to produce any papers or to visit any place. The investigation shall be completed within a reasonable period of time from the date the report was made.

          C. After completion of the investigation on a neglect or abuse report, the department shall either recommend or refuse to recommend the filing of a petition.

          D. When a child is taken into custody, the department shall file a petition within two days. If a petition is not filed in a timely manner, the child shall be released to the child's parent, guardian or custodian."

     Section 40. Section 32A-4-5 NMSA 1978 (being Laws 1993, Chapter 77, Section 99, as amended) is amended to read:

     "32A-4-5. ADMISSIBILITY OF REPORT IN EVIDENCE--IMMUNITY OF REPORTING PERSON--INVESTIGATION OF REPORT.--

          A. In any proceeding alleging neglect or abuse under the Children's Code resulting from a report required by Section 32A-4-3 NMSA 1978 or in any proceeding in which that report or any of its contents are sought to be introduced in evidence, the report or its contents or any other facts related thereto or to the condition of the child who is the subject of the report shall not be excluded on the ground that the matter is or may be the subject of a

physician-patient privilege or similar privilege or rule against disclosure.

          B. Anyone reporting an instance of alleged child neglect or abuse or participating in a judicial proceeding brought as a result of a report required by Section 32A-4-3 NMSA 1978 is presumed to be acting in good faith and shall be immune from liability, civil or criminal, that might otherwise be incurred or imposed by the law, unless the person acted in bad faith or with malicious purpose.

          C. After properly verifying the identity of the public official, any school personnel or other person who has the duty to report child abuse pursuant to Section 32A-4-3 NMSA 1978 shall permit a member of a law enforcement agency, including tribal police officers, an employee of the district attorney's office, an investigative interviewer for a program described in Subsection E of this section or an employee of the department, to interview a child with respect to a report without the permission of the child's parent or guardian. Any person permitting an interview pursuant to this subsection is presumed to be acting in good faith and shall be immune from liability, civil or criminal, that might otherwise be incurred or imposed by law, unless the person acted in bad faith or with malicious purpose.

          D. An investigation may be conducted by law enforcement, the district attorney's office, a program described in Subsection E of this section and the department. Interviews shall be conducted in a manner and place that protects the child and family from unnecessary trauma and embarrassment. The investigating entity shall conduct the investigation in a manner that will protect the privacy of the child and the family, with the paramount consideration being the safety of the child.

          E. If a community has a program for child abuse investigation that includes an investigation interview of the alleged victim, the investigation may be conducted at a site designated by the community program.

          F. Prior to interviewing a child, the department shall notify the parent or guardian of the child who is being interviewed, unless the department determines that notification would adversely affect the safety of the child about whom the report has been made or compromise the investigation."

     Section 41. Section 32A-4-6 NMSA 1978 (being Laws 1993, Chapter 77, Section 100) is amended to read:

     "32A-4-6. TAKING INTO CUSTODY--PENALTY.--

          A. A child may be held or taken into custody:

                (1) by a law enforcement officer when the officer has reasonable grounds to believe that the child is suffering from illness or injury as a result of alleged abuse or neglect or has been abandoned or is in danger from the child's surroundings and removal from those surroundings is necessary; or

                (2) by medical personnel when there are reasonable grounds to believe that the child has been injured as a result of abuse or neglect and that the child may be at risk of further injury if returned to the child's parent, guardian or custodian. The medical personnel shall hold the child until a law enforcement officer is available to take custody of the child or until a law enforcement officer has authorized release of the child to the department.

          B. When a child is taken into custody, the department shall make reasonable efforts to determine whether the child is an Indian child.

          C. If a child taken into custody is an Indian child and is alleged to be neglected or abused, the department shall give notice to the agent of the Indian child's tribe in accordance with the federal Indian Child Welfare Act of 1978.

          D. Any person who intentionally interferes with protection of a child, as provided by Subsection A of this section, is guilty of a petty misdemeanor."

     Section 42. Section 32A-4-7 NMSA 1978 (being Laws 1993, Chapter 77, Section 101, as amended) is amended to read:

     "32A-4-7. RELEASE OR DELIVERY FROM CUSTODY.--

          A. A person taking a child into custody shall, with all reasonable speed:

                (1) release the child to the child's parent, guardian or custodian and issue verbal counsel or warning as may be appropriate; or

                (2) deliver the child to the department or to an appropriate shelter-care facility or, in the case of a child who is believed to be suffering from a serious physical or mental condition or illness that requires prompt treatment or diagnosis, deliver the child to a medical facility. If a law enforcement officer delivers a child to a shelter-care facility or a medical facility, the officer shall immediately notify the department that the child has been placed in the department's legal custody.

          B. When an alleged neglected or abused child is delivered to the department, a department caseworker shall review the need for placing the child in custody and shall release the child from custody unless custody is appropriate or has been ordered by the court. When a child is delivered to an appropriate shelter-care facility or medical facility, a department caseworker shall review the need for retention of custody within a reasonable time after delivery of the child to the facility and shall release the child from custody unless custody is appropriate or has been ordered by the court.

          C. If a child is placed in the legal custody of the department and is not released to the child's parent, guardian or custodian, the department shall give written notice thereof as soon as possible, and in no case later than twenty-four hours, to the child's parent, guardian or custodian together with a statement of the reason for taking the child into custody.

          D. Reasonable efforts shall be made to prevent or eliminate the need for removing the child from the child's home, with the paramount concern being the child's health and safety. In all cases when a child is taken into custody, the child shall be released to the child's parent, guardian or custodian, unless the department files a petition within two days from the date that the child was taken into custody."

     Section 43. Section 32A-4-10 NMSA 1978 (being Laws 1993, Chapter 77, Section 104) is amended to read:

     "32A-4-10. BASIC RIGHTS.--

          A. A child subject to the provisions of the Children's Code is entitled to the same basic rights as an adult, except as otherwise provided in the Children's Code.

          B. At the inception of an abuse or neglect proceeding, counsel shall be appointed for the parent, guardian or custodian of the child. The appointed counsel shall represent the parent, guardian or custodian who is named as a party until an indigency determination is made at the custody hearing. Counsel shall also be appointed if, in the court's discretion, appointment of counsel is required in the interest of justice.

          C. At the inception of an abuse and neglect proceeding, the court shall appoint a guardian ad litem for a child under fourteen years of age. If the child is fourteen years of age or older, the court shall appoint an attorney for the child. No officer or employee of an agency that is vested with the legal custody of the child shall be appointed as guardian ad litem of or attorney for the child. Only an attorney with appropriate experience shall be appointed as guardian ad litem of or attorney for the child.

          D. When reasonable and appropriate, the court shall appoint a guardian ad litem or attorney who is knowledgeable about the child's particular cultural background.

          E. When a child reaches fourteen years of age, the child's guardian ad litem shall continue as the child's attorney; provided that the court shall appoint a different attorney for the child if:

                (1) the child requests a different attorney;

                (2) the guardian ad litem requests to be removed; or

                (3) the court determines that the appointment of a different attorney is appropriate.

          F. The court shall assure that the child's guardian ad litem zealously represents the child's best interest and that the child's attorney zealously represents the child.

          G. A person afforded rights under the Children's Code shall be advised of those rights at that person's first appearance before the court on a petition under the Children's Code."

     Section 44. Section 32A-4-14 NMSA 1978 (being Laws 1993, Chapter 77, Section 108) is amended to read:

     "32A-4-14. CHANGE IN PLACEMENT.--

          A. When the child's placement is changed, including a return to the child's home, written notice shall be sent to the child's guardian ad litem, all parties, the child's CASA, the child's foster parents and the court ten days prior to the placement change, unless an emergency situation requires moving the child prior to sending notice.

          B. When the child's guardian ad litem requests a court hearing to contest the proposed change, the department shall not change the child's placement pending the results of the court hearing, unless an emergency requires changing the child's placement prior to the hearing.

          C. When a child's placement is changed without prior notice as provided for in Subsection A of this section, written notice shall be sent to the child's guardian ad litem, all parties, the child's CASA, the child's foster parents and the court within three days after the placement change.

          D. Written notice is not required for removal of a child from temporary emergency care, emergency foster care or respite care. The department shall provide oral notification of the removal to the child's guardian ad litem.

          E. Notice need not be given to the parties, other than the child, or to the court when placement is changed at the request of the child's foster parents or substitute care provider. Notice shall be given to the child's guardian ad litem or attorney."

     Section 45. Section 32A-4-18 NMSA 1978 (being Laws 1993, Chapter 77, Section 112, as amended) is amended to read:

     "32A-4-18. CUSTODY HEARINGS--TIME LIMITATIONS--NOTICE--PROBABLE CAUSE.--

          A. When a child alleged to be neglected or abused has been placed in the legal custody of the department or the department has petitioned the court for temporary custody, a custody hearing shall be held within ten days from the date the petition is filed to determine if the child should remain in or be placed in the department's custody pending adjudication. Upon written request of the respondent, the hearing may be held earlier, but in no event shall the hearing be held sooner than two days after the date the petition was filed.

          B. The parent, guardian or custodian of the child alleged to be abused or neglected shall be given reasonable notice of the time and place of the custody hearing.

          C. At the custody hearing, the court shall return legal custody of the child to his parent, guardian or custodian unless probable cause exists to believe that:

                (1) the child is suffering from an illness or injury, and the parent, guardian or custodian is not providing adequate care for the child;

                (2) the child is in immediate danger from his surroundings, and removal from those surroundings is necessary for the child's safety or well-being;

                (3) the child will be subject to injury by others if not placed in the custody of the department;

                (4) there has been an abandonment of the child by his parent, guardian or custodian; or

                (5) the parent, guardian or custodian is not able or willing to provide adequate supervision and care for the child.

          D. At the conclusion of the custody hearing, if the court determines that probable cause exists pursuant to Subsection C of this section, the court may:

                (1) return legal custody of the child to his parent, guardian or custodian upon such conditions as will reasonably ensure the safety and well-being of the child, including protective supervision by the department; or

                (2) award legal custody of the child to the department.

     Reasonable efforts shall be made to preserve and reunify the family, with the paramount concern being the child's health and safety.

          E. At the conclusion of the custody hearing, the court may order the respondent or the child alleged to be neglected or abused, or both, to undergo appropriate diagnostic examinations or evaluations. Copies of any diagnostic or evaluation reports ordered by the court shall be provided to the parties at least five days before the adjudicatory hearing is scheduled. The reports shall not be sent to the court.

          F. The Rules of Evidence shall not apply to custody hearings."

     Section 46. Section 32A-4-20 NMSA 1978 (being Laws 1993, Chapter 77, Section 114, as amended) is amended to read:

     "32A-4-20. CONDUCT OF HEARINGS--FINDINGS--DISMISSAL--DISPOSITIONAL MATTERS--PENALTY.--

          A. The proceedings shall be recorded by stenographic notes or by electronic, mechanical or other appropriate means.

          B. All abuse and neglect hearings shall be closed to the general public.

          C. Only the parties, their counsel, witnesses and other persons approved by the court may be present at a closed hearing. The foster parent, preadoptive parent or relative providing care for the child shall be given notice and an opportunity to be heard at the dispositional phase. Those other persons the court finds to have a proper interest in the case or in the work of the court may be admitted by the court to closed hearings on the condition that they refrain from divulging any information that would identify the child or family involved in the proceedings.

          D. Accredited representatives of the news media shall be allowed to be present at closed hearings, subject to the condition that they refrain from divulging information that would identify any child involved in the proceedings or the parent, guardian or custodian of that child and subject to enabling regulations as the court finds necessary for the maintenance of order and decorum and for the furtherance of the purposes of the Children's Code.

          E. If the court finds that it is in the best interest of a child under fourteen years of age, the child may be excluded from a hearing under the Abuse and Neglect Act. A child fourteen years of age or older may be excluded from a hearing only if the court makes a finding that there is a compelling reason to exclude the child and states the factual basis for the finding.

          F. Those persons or parties granted admission to a closed hearing who intentionally divulge information in violation of this section are guilty of a petty misdemeanor.

          G. The court shall determine if the allegations of the petition are admitted or denied. If the allegations are denied, the court shall proceed to hear evidence on the petition. The court, after hearing all of the evidence bearing on the allegations of neglect or abuse, shall make and record its findings on whether the child is a neglected child, an abused child or both. If the petition alleges that the parent, guardian or custodian has subjected the child to aggravated circumstances, then the court shall also make and record its findings on whether the aggravated circumstances have been proven.

          H. If the court finds on the basis of a valid admission of the allegations of the petition or on the basis of clear and convincing evidence, competent, material and relevant in nature, that the child is neglected or abused, the court may proceed immediately or at a postponed hearing to make disposition of the case. If the court does not find that the child is neglected or abused, the court shall dismiss the petition and may refer the family to the department for appropriate services.

          I. In that part of the hearings held under the Children's Code on dispositional issues, all relevant and material evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value even though not competent had it been offered during the part of the hearings on adjudicatory issues.

          J. On the court's motion or that of a party, the court may continue the hearing on the petition for a period not to exceed thirty days to receive reports and other evidence in connection with disposition. The court shall continue the hearing pending the receipt of the predisposition study and report if that document has not been prepared and received. During any continuances under this subsection, the court shall make an appropriate order for legal custody."

     Section 47. Section 32A-4-22 NMSA 1978 (being Laws 1993, Chapter 77, Section 116, as amended) is amended to read:

     "32A-4-22. DISPOSITION OF ADJUDICATED ABUSED OR NEGLECTED CHILD.--

          A. If not held in conjunction with the adjudicatory hearing, the dispositional hearing shall be commenced within thirty days after the conclusion of the adjudicatory hearing. At the conclusion of the dispositional hearing, the court shall make and include in the dispositional judgment its findings on the following:

                (1) the interaction and interrelationship of the child with his parent, siblings and any other person who may significantly affect the child's best interest;

                (2) the child's adjustment to his home, school and community;

                (3) the mental and physical health of all individuals involved;

                (4) the wishes of the child as to the child's placement;

                (5) the wishes of the child's parent, guardian or custodian as to the child's custody;

                (6) whether there exists a relative of the child or other individual who, after study by the department, is found to be qualified to receive and care for the child;

                (7) the availability of services recommended in the treatment plan prepared as a part of the predisposition study in accordance with the provisions of Section 32A-4-21 NMSA 1978;

                (8) the ability of the parent to care for the child in the home so that no harm will result to the child;

                (9) whether reasonable efforts were used by the department to prevent removal of the child from the home prior to placement in substitute care and whether reasonable efforts were used to attempt reunification of the child with the natural parent; and

                (10) if the child is an Indian child, whether the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the child's Indian tribe have been followed and whether the Indian child's treatment plan provides for maintaining the Indian child's cultural ties. When placement preferences have not been followed, good cause for noncompliance shall be clearly stated and supported.

          B. If a child is found to be neglected or abused, the court may enter its judgment making any of the following dispositions to protect the welfare of the child:

                (1) permit the child to remain with his parent, guardian or custodian, subject to those conditions and limitations the court may prescribe;

                (2) place the child under protective supervision of the department; or

                (3) transfer legal custody of the child to any of the following:

                     (a) the noncustodial parent, if it is found to be in the child's best interest;

                     (b) an agency responsible for the care of neglected or abused children; or

                     (c) a child-placement agency willing and able to assume responsibility for the education, care and maintenance of the child and licensed or otherwise authorized by law to receive and provide care for the child.

          C. If a child is found to be neglected or abused, in its dispositional judgment the court shall also order the department to implement and the child's parent, guardian or custodian to cooperate with any treatment plan approved by the court. Reasonable efforts shall be made to preserve and reunify the family, with the paramount concern being the child's health and safety. The court may determine that reasonable efforts are not required to be made when the court finds that:

                (1) the efforts would be futile; or

                (2) the parent, guardian or custodian has subjected the child to aggravated circumstances.

          D. Any parent, guardian or custodian of a child who is placed in the legal custody of the department or other person pursuant to Subsection B of this section shall have reasonable rights of visitation with the child as determined by the court, unless the court finds that the best interests of the child preclude any visitation.

          E. The court may order reasonable visitation between a child placed in the custody of the department and the child's siblings or any other person who may significantly affect the child's best interest, if the court finds the visitation to be in the child's best interest.

          F. Unless a child found to be neglected or abused is also found to be delinquent, the child shall not be confined in an institution established for the long-term care and rehabilitation of delinquent children.

          G. When the court vests legal custody in an agency, institution or department, the court shall transmit with the dispositional judgment copies of the clinical reports, the predisposition study and report and any other information it has pertinent to the care and treatment of the child.

          H. Prior to a child being placed in the custody or protective supervision of the department, the department shall be provided with reasonable oral or written notification and an opportunity to be heard. At any hearing held pursuant to this subsection, the department may appear as a party.

          I. When a child is placed in the custody of the department, the department shall investigate whether the child is eligible for enrollment as a member of an Indian tribe and, if so, the department shall pursue the enrollment on the child's behalf.

          J. When the court determines pursuant to Subsection C of this section that no reasonable efforts at reunification are required, the court shall conduct, within thirty days, a permanency hearing as described in Section 32A-4-25.1 NMSA 1978. Reasonable efforts shall be made to implement and finalize the permanency plan in a timely manner."

     Section 48. Section 32A-4-23 NMSA 1978 (being Laws 1993, Chapter 77, Section 117, as amended) is amended to read:

     "32A-4-23. DISPOSITION OF A CHILD WITH A MENTAL DISORDER OR A DEVELOPMENTAL DISABILITY IN A PROCEEDING UNDER THE ABUSE AND NEGLECT ACT.--

          A. If in a hearing, at any stage of a proceeding on a neglect or abuse petition, the evidence indicates that a child has a mental disorder or a developmental disability, the court shall adjudicate the issue of neglect or abuse under the provisions of the Children's Code.

          B. When a child in department custody needs involuntary placement for residential mental health or developmental disability services as a result of a mental disorder or developmental disability, the department shall petition for that child's placement pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.

          C. Any child in department custody who is placed for residential treatment or habilitation pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act shall remain in the legal custody of the department while in residential treatment or habilitation or until further order of the court.

          D. A court hearing for consideration of an involuntary placement of a child for residential treatment or habilitation, when the child is subject to the provisions of the Abuse and Neglect Act, may be heard by the court as part of the abuse or neglect proceedings or may be heard in a separate proceeding. All parties to the abuse or neglect proceedings shall be provided with notice of the involuntary placement hearing.

          E. A guardian ad litem appointed pursuant to the Abuse and Neglect Act shall serve as a guardian ad litem for a child for the purposes of the Children's Mental Health and Developmental Disabilities Act. When a child is fourteen years of age or older, the child shall be represented by an attorney unless, after consultation between the child and the child's attorney, the child elects to be represented by counsel appointed in the proceedings under the Children's Mental Health and Developmental Disabilities Act.

          F. When a child is subject to the provisions of the Abuse and Neglect Act and is receiving residential treatment or habilitation services, any documentation required pursuant to the Children's Mental Health and Developmental Disabilities Act shall be filed with the court as part of the abuse or neglect proceeding. A review of the child's placement in a residential treatment or habilitation program shall occur in the same manner and within the same time requirements as provided in the Children's Mental Health and Developmental Disabilities Act.

          G. The clerk of the court shall maintain a separate section within an abuse or neglect file for documents pertaining to actions taken under the Children's Mental Health and Developmental Disabilities Act.

          H. A child subject to the provisions of the Abuse and Neglect Act who receives treatment in a residential treatment or habilitation program shall enjoy all the substantive and procedural rights set forth in the Children's Mental Health and Developmental Disabilities Act."

     Section 49. Section 32A-4-25 NMSA 1978 (being Laws 1993, Chapter 77, Section 119, as amended) is amended to read:

     "32A-4-25. PERIODIC REVIEW OF DISPOSITIONAL JUDGMENTS.--

          A. The initial judicial review shall be held within sixty days of the disposition. At the initial review, the parties shall demonstrate to the court efforts made to implement the treatment plan approved by the court in its dispositional order. The court shall determine the extent to which the treatment plan has been implemented and make supplemental orders as necessary to ensure compliance with the treatment plan and the safety of the child. Prior to the initial judicial review, the department shall submit a copy of the adjudicatory order, the dispositional order and notice of the initial judicial review to the local substitute care review board for that judicial district created under the Citizen Substitute Care Review Act. A representative of the local substitute care review board shall be permitted to attend and comment to the court.

          B. Subsequent periodic reviews of dispositional orders shall be held within six months of the conclusion of the permanency hearing or, if a motion has been filed for termination of parental rights or permanent guardianship, within six months of the decision on that motion and every six months thereafter. Prior to the review, the department shall submit a progress report to the local substitute care review board for that judicial district created under the Citizen Substitute Care Review Act. Prior to any judicial review by the court pursuant to this section, the local substitute care review board may review the dispositional order or the continuation of the order and the department's progress report and report its findings and recommendations to the court. The review may be carried out by either of the following:

                (1) a judicial review hearing conducted by the court; or

                (2) a judicial review hearing conducted by a special master appointed by the court; provided, however, that the court approve any findings made by the special master.

          C. The children's court attorney shall give notice to all parties, the child's guardian ad litem, the child's CASA, a contractor administering the local substitute care review board and the child's foster parent or substitute care provider of the time, place and purpose of any judicial review hearing held pursuant to Subsection A or B of this section.

          D. At any judicial review hearing held pursuant to Subsection B of this section, the department, the child's guardian ad litem and all parties given notice pursuant to Subsection C of this section shall have the opportunity to present evidence and to cross-examine witnesses. At the hearing, the department shall show that it has made reasonable effort to implement any treatment plan approved by the court in its dispositional order and shall present a treatment plan consistent with the purposes of the Children's Code for any period of extension of the dispositional order. The respondent shall demonstrate to the court that efforts to comply with the treatment plan approved by the court in its dispositional order and efforts to maintain contact with the child were diligent and made in good faith. The court shall determine the extent of compliance with the treatment plan and whether progress is being made toward establishing a stable and permanent placement for the child.

          E. The Rules of Evidence shall not apply to hearings held pursuant to this section. The court may admit testimony by any person given notice of the hearing who has information about the status of the child or the status of the treatment plan.

          F. At the conclusion of any hearing held pursuant to this section, the court shall make findings of fact and conclusions of law.

          G. When the child is an Indian child, the court shall determine during review of a dispositional order whether the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the child's Indian tribe were followed and whether the child's treatment plan provides for maintaining the child's cultural ties. When placement preferences have not been followed, good cause for noncompliance shall be clearly stated and supported.

          H. Based on its findings at a judicial review hearing held pursuant to Subsection B of this section, the court shall order one of the following dispositions:

                (1) dismiss the action and return the child to his parent without supervision if the court finds that conditions in the home that led to abuse have been corrected and it is now safe for the return of the abused child;

                (2) permit the child to remain with his parent, guardian or custodian subject to those conditions and limitations the court may prescribe, including protective supervision of the child by the department;

                (3) return the child to his parent and place the child under the protective supervision of the department;

                (4) transfer or continue legal custody of the child to:

                     (a) the noncustodial parent, if that is found to be in the child's best interests;

                     (b) a relative or other individual who, after study by the department or other agency designated by the court, is found by the court to be qualified to receive and care for the child and is appointed as a permanent guardian of the child; or

                     (c) the department, subject to the provisions of Paragraph (6) of this subsection;

                (5) continue the child in the legal custody of the department with or without any required parental involvement in a treatment plan. Reasonable efforts shall be made to preserve and reunify the family, with the paramount concern being the child's health and safety unless the court finds that such efforts are not required. The court may determine that reasonable efforts are not required to be made when the court finds that:

                     (a) the efforts would be futile; or

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

                (6) make additional orders regarding the treatment plan or placement of the child to protect the child's best interests if the court determines the department has failed in implementing any material provision of the treatment plan or abused its discretion in the placement or proposed placement of the child; or

                (7) if during a judicial review the court finds that the child's parent, guardian or custodian has not complied with the court-ordered treatment plan, the court may order:

                     (a) the child's parent, guardian or custodian to show cause why he should not be held in contempt of court; or

                     (b) a hearing on the merits of terminating parental rights.

          I. Dispositional orders entered pursuant to this section shall remain in force for a period of six months, except for orders that provide for transfer of the child to the child's noncustodial parent or to a permanent guardian.

          J. The report of the local substitute care review board submitted to the court pursuant to Subsection B of this section shall become a part of the child's permanent court record.

          K. When the court determines, pursuant to Paragraph (5) of Subsection H of this section, that no reasonable efforts at reunification are required, the court shall conduct, within thirty days, a permanency hearing as described in Section 32A-4-25.1 NMSA 1978. Reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child."

     Section 50. Section 32A-4-25.1 NMSA 1978 (being Laws 1997, Chapter 34, Section 8) is amended to read:

     "32A-4-25.1. PERMANENCY HEARINGS--PERMANENCY REVIEW HEARINGS.--

          A. A permanency hearing shall be commenced within six months of the initial judicial review of a child's dispositional order or within twelve months of a child entering foster care pursuant to Subsection E of this section, whichever occurs first. Prior to the initial permanency hearing, all parties to the hearing shall attend a mandatory meeting and attempt to settle issues attendant to the permanency hearing and develop a proposed treatment plan that serves the child's best interest. Prior to the initial permanency hearing, the department shall submit a progress report regarding the child to the local substitute care review board for that judicial district. The local substitute care review board may review the child's dispositional order, any continuation of that order and the department's progress report and report its findings and recommendations to the court.

          B. At the permanency hearing, all parties shall have the opportunity to present evidence and to cross-examine witnesses. At the conclusion of the permanency hearing, the court shall order one of the following permanency plans for the child:

                (1) reunification;

                (2) placement for adoption after the parents' rights have been relinquished or terminated or after a motion has been filed to terminate parental rights;

                (3) placement with a person who will be the child's permanent guardian;

                (4) placement in the legal custody of the department with the child placed in the home of a fit and willing relative; or

                (5) placement in the legal custody of the department under a planned permanent living arrangement, provided that there is substantial evidence that none of the above plans is appropriate for the child.

          C. If the court adopts a permanency plan of reunification, the court shall adopt a plan for transitioning the child home and schedule a permanency review hearing within three months. If the child is reunified, the subsequent hearing may be vacated.

          D. At the permanency review hearing, all parties and the child's guardian ad litem or attorney shall have the opportunity to present evidence and cross-examine witnesses. Based on the evidence, the court shall:

                (1) change the plan from reunification to one of the alternative plans provided in Subsection B of this section;

                (2) dismiss the case and return custody of the child to his parent, guardian or custodian; or

                (3) return the child to the custody of his parent, guardian or custodian, subject to any conditions or limitations as the court may prescribe, including protective supervision of the child by the department and continuation of the treatment plan for not more than six months, after which the case shall be dismissed. The department may seek removal of a child from the home by obtaining an order in the pending case or by seeking emergency removal under Section 32A-4-6 NMSA 1978 during the period of protective supervision if the child's best interest requires such action. When a child is removed in this situation, a permanency hearing shall be scheduled within thirty days of the child coming back into the department's legal custody.

          E. The court shall hold a permanency hearing and adopt a permanency plan for a child within twelve months of the child entering foster care. For purposes of this section, a child shall be considered to have entered foster care on the earlier of:

                (1) the date of the first judicial finding that the child has been abused or neglected; or

                (2) sixty days after the date on which the child was removed from the home.

          F. The court shall hold permanency hearings every twelve months when a child is in the legal custody of the department.

          G. The children's court attorney shall give notice to all parties, the child's guardian ad litem, the child's CASA, a contractor administering the local substitute care review board and the child's foster parent or substitute care provider of the time, place and purpose of any permanency hearing or permanency review hearing held pursuant to this section.

          H. The rules of evidence shall not apply to permanency hearings. The court may admit testimony by any person given notice of the permanency hearing who has information about the status of the child or the status of the treatment plan. All testimony shall be subject to

cross-examination."

     Section 51. 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; or

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

          C. 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."

     Section 52. Section 32A-4-29 NMSA 1978 (being Laws 1993, Chapter 77, Section 123, as amended) is amended to read:

     "32A-4-29. TERMINATION PROCEDURE.--

          A. A motion to terminate parental rights may be filed at any stage of the abuse or neglect proceeding by a party to the proceeding.

          B. The motion for termination of parental rights shall set forth:

                (1) the date, place of birth and marital status of the child, if known;

                (2) the grounds for termination and the facts and circumstances supporting the grounds for termination;

                (3) the names and addresses of the persons or authorized agency or agency officer to whom legal custody might be transferred;

                (4) whether the child resides or has resided with a foster parent who desires to adopt this child;

                (5) whether the motion is in contemplation of adoption;

                (6) the relationship or legitimate interest of the moving party to the child; and

                (7) 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 parents;

                     (b) the specific actions taken by the moving party to notify the 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) what specific efforts were 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.

          C. Notice of the filing of the motion, accompanied by a copy of the motion, shall be served by the moving party on all other parties, the foster parent, preadoptive parent or relative providing care for the child with whom the child is residing, foster parents with whom the child has resided for six months within the previous twelve months, 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 Children's Court Rules for the service of motions, except that foster parents and attorneys of record in this proceeding shall be served by certified mail. The notice shall state specifically that the person served shall file a written response to the motion within twenty days if the person intends to contest the termination. 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 parents and upon any "Indian custodian" as that term is defined in 25 U.S.C. Section 1903(6). Further notice shall not be required on a parent who has been provided notice previously pursuant to Section 32A-4-17 NMSA 1978 and who failed to make an appearance.

          D. When a motion to terminate parental rights is filed, the moving party shall request a hearing on the motion. 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 under this section.

          E. In any action for the termination of parental rights brought by a party other than the department and involving a child in the legal custody of the department, the department may:

                (1) litigate a motion for the termination of parental rights that was initially filed by another party; or

                (2) move that the motion for the termination of parental rights be found premature and denied.

          F. When a motion to terminate parental rights is filed, the department shall perform concurrent planning.

          G. When a child has been in foster care for not less than fifteen of the previous twenty-two months, the department shall file a motion to terminate parental rights, unless:

                (1) a parent has made substantial progress toward eliminating the problem that caused the child's placement in foster care; it is likely that the child will be able to safely return to the parent's home within three months; and the child's return to the parent's home will be in the child's best interests;

                (2) the child has a close and positive relationship with a parent and a permanent plan that does not include termination of parental rights will provide the most secure and appropriate placement for the child;

                (3) the child is fourteen years of age or older, is firmly opposed to termination of parental rights and is likely to disrupt an attempt to place him with an adoptive family;

                (4) a parent is terminally ill, but in remission, and does not want his parental rights to be terminated; provided that the parent has designated a guardian for his child;

                (5) the child is not capable of functioning if placed in a family setting. In such a case, the court shall reevaluate the status of the child every ninety days unless there is a final court determination that the child cannot be placed in a family setting;

                (6) grounds do not exist for termination of parental rights;

                (7) the child is an unaccompanied, refugee minor and the situation regarding the child involves international legal issues or compelling foreign policy issues; or

                (8) adoption is not an appropriate plan for the child.

          H. For purposes of this section, a child shall be considered to have entered foster care on the earlier of:

                (1) the date of the first judicial finding that the child has been abused or neglected; or

                (2) the date that is sixty days after the date on which the child was removed from the home.

I. The grounds for any attempted termination

shall be proved by clear and convincing evidence. In any proceeding involving a child subject to the federal Indian Child Welfare Act of 1978, the grounds for any attempted termination shall be proved beyond a reasonable doubt and shall meet the requirements set forth in

25 U.S.C. Section 1912(f).

          J. When the court terminates parental rights, it shall appoint a custodian for the child and fix responsibility for the child's support.

          K. In any termination proceeding involving a child subject to the federal Indian Child Welfare Act of 1978, the court shall in any termination order make specific findings that the requirements of that act have been met.

          L. A judgment of the court terminating parental rights divests the parent of all legal rights and privileges and dispenses with both the necessity for the consent to or receipt of notice of any subsequent adoption proceeding concerning the child. A judgment of the court terminating parental rights shall not affect the child's rights of inheritance from and through the child's biological

parents."

     Section 53. Section 32A-4-30 NMSA 1978 (being Laws 1993, Chapter 77, Section 124) is amended to read:

     "32A-4-30. ATTORNEY FEES.--The court may order the department to pay attorney fees for the child's guardian ad litem or attorney if:

          A. the child is in the legal custody of the department;

          B. the child's guardian ad litem or the child, through the child's attorney:

                (1) requests in writing that the department move for the termination of parental rights;

                (2) gives the department written notice that if the department does not move for termination of parental rights, the guardian ad litem or the child, through the child's attorney, intends to move for the termination of parental rights and seek an award of attorney fees;

                (3) successfully moves for the termination of parental rights; and

                (4) applies to the court for an award of attorney fees; and

          C. the department refuses to litigate the motion for the termination of parental rights or fails to act in a timely manner."

     Section 54. Section 32A-4-31 NMSA 1978 (being Laws 1993, Chapter 77, Section 125) is amended to read:

     "32A-4-31. PERMANENT GUARDIANSHIP OF A CHILD.--

          A. In proceedings for permanent guardianship, the court shall give primary consideration to the physical, mental and emotional welfare and needs of the child. Permanent guardianship vests in the guardian all rights and responsibilities of a parent, other than those rights and responsibilities of the natural or adoptive parent, if any, set forth in the decree of permanent guardianship.

          B. Any adult, including a relative or foster parent, may be considered as a permanent guardian, provided that the department grants consent to the guardianship if the child is in the legal custody of the department. An agency or institution may not be a permanent guardian. The court shall appoint a person nominated by the child, if the minor is fourteen years of age or older, unless the court finds the appointment contrary to the best interests of the child.

          C. The court may establish a permanent guardianship between a child and the guardian when the prospective guardianship is in the child's best interest and when:

                (1) the child has been adjudicated as an abused or neglected child;

                (2) the department has made reasonable efforts to reunite the parent and child and further efforts by the department would be unproductive;

                (3) reunification of the parent and child is not in the child's best interests because the parent continues to be unwilling or unable to properly care for the child; and

                (4) the likelihood of the child being adopted is remote or it is established that termination of parental rights is not in the child's best interest."

     Section 55. Section 32A-4-32 NMSA 1978 (being Laws 1993, Chapter 77, Section 126, as amended) is amended to read:

     "32A-4-32. PERMANENT GUARDIANSHIP--PROCEDURE.--

          A. A motion for permanent guardianship may be filed by any party.

          B. A motion for permanent guardianship shall set forth:

                (1) the date, place of birth and marital status of the child, if known;

                (2) the facts and circumstances supporting the grounds for permanent guardianship;

                (3) the name and address of the prospective guardian and a statement that the person agrees to accept the duties and responsibilities of guardianship;

                (4) the basis for the court's jurisdiction;

                (5) the relationship of the child to the petitioner and the prospective guardian; 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 parents;

                     (b) the specific actions taken by the petitioner to notify the parents' tribe 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) what specific efforts were 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.

          C. If the motion is not filed by the prospective guardian, the motion shall be verified by the prospective guardian.

          D. Notice of the filing of the motion, accompanied by a copy of the motion, shall be served by the moving party on any parent who has not previously been made a party to the proceeding, the parents of the child, foster parents with whom the child is residing, the foster parent, preadoptive parent or relative providing care for the child with whom the child has resided for six months, the child's custodian, the department, any person appointed to represent any party, including the child's guardian ad litem, and any other person the court orders provided with notice. Service shall be in accordance with the Children's Court Rules for the service of motions. In a case involving a child subject to the federal Indian Child Welfare Act of 1978, notice shall also be sent by certified mail to the Indian tribes of the child's parents and to any "Indian custodian" as that term is defined in

25 U.S.C. Section 1903(6). Further notice shall not be required to a parent who has been provided notice previously pursuant to Section 32A-4-17 NMSA 1978 and who failed to make an appearance.

          E. The grounds for permanent guardianship shall be proved by clear and convincing evidence. The grounds for permanent guardianship shall be proved beyond a reasonable doubt and meet the requirements of 25 U.S.C. Section 1912(f) in any proceeding involving a child subject to the federal Indian Child Welfare Act of 1978.

          F. A judgment of the court vesting permanent guardianship with an individual divests the biological or adoptive parent of legal custody or guardianship of the child, but is not a termination of the parent's rights. A child's inheritance rights from and through the child's biological or adoptive parents are not affected by this proceeding.

          G. Upon a finding that grounds exist for a permanent guardianship, the court may incorporate into the final order provisions for visitation with the natural parents, siblings or other relatives of the child and any other provision necessary to rehabilitate the child or provide for the child's continuing safety and well-being.

          H. The court shall retain jurisdiction to enforce its judgment of permanent guardianship.

          I. Any party may make a motion for revocation of the order granting guardianship when there is a significant change of circumstances, including:

                (1) the child's parent is able and willing to properly care for the child; or

                (2) the child's guardian is unable to properly care for the child.

          J. The court shall appoint a guardian ad litem for the child in all proceedings for the revocation of permanent guardianship.

          K. The court may revoke the order granting guardianship when a significant change of circumstances has been proven by clear and convincing evidence and it is in the child's best interests to revoke the order granting guardianship."

     Section 56. Section 32A-4-33 NMSA 1978 (being Laws 1993, Chapter 77, Section 127) is amended to read:

     "32A-4-33. CONFIDENTIALITY--RECORDS--PENALTY.--

          A. All records or information concerning a party to a neglect or abuse proceeding, including social records, diagnostic evaluations, psychiatric or psychological reports, videotapes, transcripts and audio recordings of a child's statement of abuse or medical reports incident to or obtained as a result of a neglect or abuse proceeding or that were produced or obtained during an investigation in anticipation of or incident to a neglect or abuse proceeding shall be confidential and closed to the public.

          B. The records described in Subsection A of this section shall be disclosed only to the parties and:

                (1) court personnel;

                (2) court appointed special advocates;

                (3) the child's guardian ad litem;

                (4) the attorney representing the child in an abuse or neglect action, a delinquency action or any other action under the Children's Code;

                (5) department personnel;

                (6) any local substitute care review board or any agency contracted to implement local substitute care review boards;

                (7) law enforcement officials, except when use immunity is granted pursuant to Section 32A-4-11 NMSA 1978;

                (8) district attorneys, except when use immunity is granted pursuant to Section 32A-4-11 NMSA 1978;

                (9) any state government social services agency in any state;

                (10) those persons or entities of an Indian tribe specifically authorized to inspect the records pursuant to the federal Indian Child Welfare Act of 1978 or any regulations promulgated thereunder;

                (11) a foster parent, if the records are those of a child currently placed with that foster parent or of a child being considered for placement with that foster parent and the records concern the social, medical, psychological or educational needs of the child;

                (12) school personnel involved with the child if the records concern the child's social or educational needs;

                (13) health care or mental health professionals involved in the evaluation or treatment of the child, the child's parents, guardian, custodian or other family members;

                (14) protection and advocacy representatives pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1991;

                (15) children's safehouse organizations conducting investigatory interviews of children on behalf of a law enforcement agency or the department; and

                (16) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court.

          C. A parent, guardian or legal custodian whose child has been the subject of an investigation of abuse or neglect where no petition has been filed shall have the right to inspect any medical report, psychological evaluation, law enforcement reports or other investigative or diagnostic evaluation; provided that any identifying information related to the reporting party or any other party providing information shall be deleted. The parent, guardian or legal custodian shall also have the right to the results of the investigation and the right to petition the court for full access to all department records and information except those records and information the department finds would be likely to endanger the life or safety of any person providing information to the department.

          D. Whoever intentionally and unlawfully releases any information or records closed to the public pursuant to the Abuse and Neglect Act or releases or makes other unlawful use of records in violation of that act is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.

          E. When a child's death is allegedly caused by abuse or neglect, the department may release information about the case after consultation with and the consent of the district attorney.

          F. The department shall promulgate rules for implementing disclosure of records pursuant to this section and in compliance with state and federal law and the Children's Court Rules."

     Section 57. A new section of the Abuse and Neglect Act is enacted to read:

     "DUTIES OF EMPLOYEES.--All employees of the department shall be trained in their legal duties to protect the constitutional and statutory rights of children and families from the initial time of contact, during the investigation and throughout any treatment."

     Section 58. Section 32A-5-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 130, as amended by Laws 2003, Chapter 294, Section 2 and by Laws 2003, Chapter 321, Section 2) 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) securing termination of parental rights to a child or consent to adoption of the child;

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

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

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

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

                (7) 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;

          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;

          H. "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. "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. "counselor" means a person certified by the department to conduct adoption counseling in independent adoptions;

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

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

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

          N. "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. "independent adoption" means an adoption when the child is not in the custody of the department or an agency;

          P. "investigator" means an individual certified by the department to conduct pre-placement studies and

post-placement reports;

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

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

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

          V. "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. "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. "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. "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. "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 59. Section 32A-5-7 NMSA 1978 (being Laws 1993, Chapter 77, Section 134, as amended) is amended to read:

     "32A-5-7. CLERK OF THE COURT--DUTIES.--

          A. The clerk of the court shall file pleadings captioned pursuant to the provisions of Section 32A-5-9 NMSA 1978. The clerk of the court shall not file incorrectly captioned pleadings.

          B. The clerk of the court shall mail a copy of the request for placement to the department within one working day of the request for placement being filed with the court. The attorney for the person requesting placement shall provide to the clerk of the court a copy of the request for placement and a stamped envelope addressed to the department as specified in department regulation.

          C. The clerk of the court shall mail a copy of the petition for adoption within one working day of the petition for adoption being filed with the court. The attorney for the petitioner shall provide to the clerk of the court a copy of the petition for adoption and a stamped envelope addressed to the department as specified in department regulation.

          D. The clerk of the court shall mail a copy of the decree of adoption to the department within one working day of the entry of the decree of adoption. The attorney for the petitioner shall provide to the clerk of the court a copy of the decree of adoption and a stamped envelope addressed to the department as specified in department regulation.

          E. In any adoption involving an Indian child, the clerk of the court shall provide the secretary of the interior with a copy of any decree of adoption or adoptive placement order and other information as required by the federal Indian Child Welfare Act of 1978. The attorney for the petitioner shall provide to the clerk of the court a copy of an adoption decree, an adoptive placement order, any other information required by the federal Indian Child Welfare Act of 1978 and a stamped envelope addressed to the secretary of the interior.

          F. The clerk of the court shall provide a certificate of adoption with an adoptee's new name.

          G. The attorney for the petitioner shall forward the certificate of adoption provided for in Subsection F of this section as follows:

                (1) for a person born in the United States, to the appropriate vital statistics office of the place, if known, where the adoptee was born; or

                (2) for all other persons, to the state registrar of vital statistics."

     Section 60. Section 32A-5-8 NMSA 1978 (being Laws 1993, Chapter 77, Section 135, as amended) is amended to read:

     "32A-5-8. CONFIDENTIALITY OF RECORDS.--

          A. Unless the petitioner agrees to be contacted or agrees to the release of the petitioner's identity to the parent and the parent agrees to be contacted or agrees to the release of the parent's identity to the petitioner, the attorneys, the court, the agency and the department shall maintain confidentiality regarding the names of the parties, unless the information is already otherwise known. After the petition is filed and prior to the entry of the decree, the records in adoption proceedings shall be open to inspection only by the attorney for the petitioner, the department or the agency, any attorney appointed as a guardian ad litem for the adoptee, any attorney retained by the adoptee or other persons upon order of the court for good cause shown.

          B. All records, whether on file with the court, an agency, the department, an attorney or other provider of professional services in connection with an adoption, are confidential and may be disclosed only pursuant to the provisions of the Adoption Act. All information and documentation provided for the purpose of full disclosure is confidential. Documentation provided for the purpose of full disclosure shall remain the property of the person making full disclosure when a prospective adoptive parent decides not to accept a placement. Immediately upon refusal of the placement, the prospective adoptive parent shall return all full disclosure documentation to the person providing full disclosure. A prospective adoptive parent shall not disclose any confidential information received during the full disclosure process, except as necessary to make a placement decision or to provide information to a child's guardian ad litem or the court.

          C. All hearings in adoption proceedings shall be confidential and shall be held in closed court without admittance of any person other than parties and their counsel.

          D. A person who intentionally and unlawfully releases any information or records closed to the public pursuant to the Adoption Act or releases or makes other unlawful use of records in violation of that act is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.

          E. Prior to the entry of the decree of adoption, the parent consenting to the adoption or relinquishing parental rights to an agency or the department shall execute an affidavit stating whether the parent will permit contact or the disclosure of the parent's identity to the adoptee or the adoptee's prospective adoptive parents."

     Section 61. Section 32A-5-13 NMSA 1978 (being Laws 1993, Chapter 77, Section 140, as amended) is amended to read:

     "32A-5-13. INDEPENDENT ADOPTIONS--REQUEST FOR PLACEMENT--PLACEMENT ORDER--CERTIFICATION.--

          A. When a placement order is required, the petitioner shall file a request with the court to allow the placement. An order permitting the placement shall be obtained prior to actual placement.

          B. Only a pre-placement study that has been prepared or updated within one year immediately prior to the date of placement, approving the petitioner as an appropriate adoptive parent, shall be filed with the court prior to issuance of a placement order, except as provided in Subsection C of Section 32A-5-12 NMSA 1978.

          C. In order for a person to be certified to conduct pre-placement studies, the person shall meet the standards promulgated by the department. If the child is an Indian child, the person shall meet the standards set forth in the federal Indian Child Welfare Act of 1978.

          D. The pre-placement study shall be conducted by an agency or a person certified by the department to conduct the study. A person or agency that wants to be certified to perform pre-placement studies shall file documents verifying their qualifications with the department. The department shall publish a list of persons or agencies certified to conduct a pre-placement study. If necessary to defray additional costs associated with compiling the list, the department may assess and charge a reasonable administrative fee to the person or agency listed.

          E. When a person or agency that wants to be certified to perform pre-placement studies files false documentation with the department, the person or agency shall be subject to the provisions of Section 32A-5-42 NMSA 1978.

          F. A request for placement shall be filed and verified by the petitioner and shall allege:

                (1) the full name, age and place and duration of residence of the petitioner and, if married, the place and date of marriage;

                (2) the date and place of birth of the adoptee, if known, or the anticipated date and place of birth of the adoptee;

                (3) a detailed statement of the circumstances and persons involved in the proposed placement;

                (4) if the adoptee has been born, the address where the adoptee is residing at the time of the request for placement;

                (5) if the adoptee has been born, the places where the adoptee has lived within the past three years and the names and addresses of the persons with whom the adoptee has lived. If the adoptee is in the custody of an agency or the department, the address shall be the address of the agency or the county office of the department from which the child was placed;

                (6) the existence of any court orders that are known to the petitioner and that regulate custody, visitation or access to the adoptee, copies of which shall be attached to the request for placement as exhibits; if copies of any such court orders are unavailable at the time of filing the request for placement, the copies shall be filed prior to the issuance of the order of placement;

                (7) that the petitioner desires to establish a parent and child relationship between the petitioner and the adoptee and that the petitioner is a fit and proper person able to care and provide for the adoptee's welfare;

                (8) the relationship, if any, of the petitioner to the adoptee;

                (9) whether the adoptee is subject to the federal Indian Child Welfare Act of 1978, and, if so, the petition shall allege the actions taken to comply with the federal Indian Child Welfare Act of 1978 and all other allegations required pursuant to that act;

                (10) whether the adoption is subject to the Interstate Compact on the Placement of Children and what specific actions have been taken to comply with the Interstate Compact on the Placement of Children; and

                (11) the name, address and telephone number of the agency or investigator who has agreed to do the

pre-placement study.

          G. The request for placement shall be served on all parties entitled to receive notice of the filing of a petition for adoption, as provided in Section 32A-5-27 NMSA 1978. An order allowing placement may be entered prior to service of the request for placement.

          H. A hearing and the court decision on the request for placement shall occur within thirty days of the filing of the request.

          I. As part of any court order authorizing placement under this section, the court shall find whether the pre-placement study complies with Section 32A-5-14 NMSA 1978 and that the time requirements concerning placement set forth in this section have been met."

     Section 62. Section 32A-5-14.1 NMSA 1978 (being Laws 2003, Chapter 294, Section 8 and Laws 2003, Chapter 321, Section 8) is amended to read:

     "32A-5-14.1. CRIMINAL HISTORY RECORDS CHECK--BACKGROUND CHECKS.--

          A. A nationwide criminal history records check shall be conducted on a person who files a petition to adopt a child, on prospective foster parents and on other adults residing in the prospective adoptive or foster parent's household. A person who files a petition to adopt a child shall provide the department with a set of fingerprints. The department is authorized to use the set of fingerprints to conduct a background check of the person providing the fingerprints by submitting the fingerprints to the department of public safety and the federal bureau of investigation.

          B. Criminal history records obtained by the department pursuant to the provisions of this section are confidential. Criminal history records obtained pursuant to the provisions of this section shall not be used for any purpose other than conducting background checks. Criminal history records obtained pursuant to the provisions of this section and the information contained in those records shall not be released or disclosed to any other person or agency, except pursuant to a court order or with the written consent of the person who is the subject of the records.

          C. A person who releases or discloses criminal history records or information contained in those records in violation of the provisions of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."

     Section 63. Section 32A-5-17 NMSA 1978 (being Laws 1993, Chapter 77, Section 144, as amended) is amended to read:

     "32A-5-17. PERSONS WHOSE CONSENTS OR RELINQUISHMENTS ARE REQUIRED.--

          A. Consent to adoption or relinquishment of parental rights to the department or an agency licensed by the state of New Mexico shall be required of the following:

                (1) the adoptee, if fourteen years of age or older, except when the court finds that the adoptee does not have the mental capacity to give consent;

                (2) the adoptee's mother;

                (3) the adoptee's proposed adoptive parent;

                (4) the presumed father of the adoptee;

                (5) the adoptee's acknowledged father;

                (6) the department or the agency to whom the adoptee has been relinquished that has placed the adoptee for adoption or the department or the agency that has custody of the adoptee; provided, however, that the court may grant the adoption without the consent of the department or the agency if the court finds the adoption is in the best interests of the adoptee and that the withholding of consent by the department or the agency is unreasonable; and

                (7) the guardian of the adoptee's parent when, pursuant to provisions of the Uniform Probate Code, that guardian has express authority to consent to adoption.

          B. In any adoption involving an Indian child, consent to adoption by the petitioner or relinquishment of parental rights shall be obtained from an "Indian custodian", as required pursuant to the provisions of the federal Indian Child Welfare Act of 1978.

          C. A consent or relinquishment executed by a parent who is a minor shall not be subject to avoidance or revocation solely by reason of the parent's minority."

     Section 64. Section 32A-5-21 NMSA 1978 (being Laws 1993, Chapter 77, Section 148) is amended to read:

     "32A-5-21. FORM OF CONSENT OR RELINQUISHMENT.--

          A. Except when consent or relinquishment is implied, a consent or relinquishment by a parent shall be in writing, signed by the parent consenting or relinquishing and shall state the following:

                (1) the date, place and time of execution;

                (2) the date and place of birth of the adoptee and any names by which the adoptee has been known;

                (3) if a consent to adoption is being executed, the identity of the petitioner, if known, or when the adoption is an independent adoption and the identity of the petitioner is unknown, how the petitioner was selected by the consenting parent;

                (4) if a relinquishment of parental rights is being executed, the name and address of the agency or the department;

                (5) that the person executing the consent or relinquishment has been counseled, as provided in Section

32A-5-22 NMSA 1978, by a certified counselor of the person's choice and with this knowledge the person is voluntarily and unequivocally consenting to the adoption of the named adoptee;

                (6) that the consenting party has been advised of the legal consequences of the relinquishment or consent either by independent legal counsel or a judge;

                (7) if the adoption is closed, that all parties understand that the court will not enforce any contact, regardless of any informal agreements that have made between the parties;

                (8) that the consent to or relinquishment for adoption cannot be withdrawn;

                (9) that the person executing the consent or relinquishment has received or been offered a copy of the consent or relinquishment;

                (10) that a counseling narrative has been prepared pursuant to department regulations and is attached to the consent or relinquishment;

                (11) that the person who performed the counseling meets the requirements set forth in the Adoption Act; and

                (12) that the person executing the consent or relinquishment waives further notice of the adoption proceedings.

          B. The consent of an adoptee, if fourteen years of age or older, shall be in writing, signed by the adoptee, consenting to the adoption and shall state the following:

                (1) the date, place and time of execution;

                (2) the date and place of birth of the adoptee and any names by which the adoptee has been known;

                (3) the name of the petitioner;

                (4) that the adoptee has been counseled regarding the consent pursuant to department regulation;

                (5) that the adoptee has been advised of the legal consequences of the consent;

                (6) that the adoptee is voluntarily and unequivocally consenting to the adoption;

                (7) that the consent or relinquishment cannot be withdrawn;

                (8) that a counseling narrative has been prepared pursuant to department regulation and is attached to the consent; and

                (9) that the person who performed the counseling meets the requirements set forth in the Adoption Act.

          C. In cases when the consent or relinquishment is in English and English is not the first language of the consenting or relinquishing person, the person taking the consent or relinquishment shall certify in writing that the document has been read and explained to the person whose consent or relinquishment is being taken in that person's first language, by whom the document was so read and explained and that the meaning and implications of the document are fully understood by the person giving the consent or relinquishment.

          D. Unconditional consents or relinquishments are preferred and therefore, conditional consents or relinquishments shall be for good cause and approved by the court. However, if the condition is for a specific petitioner or the condition requires the other parent to consent before the decree of adoption is entered, the condition shall be deemed for good cause. In any event, all conditions permitted under this subsection shall be met within one hundred eighty days of the execution of the conditional consent or relinquishment or the conclusion of any litigation concerning the petition for adoption. The court may grant an extension of this time for good cause.

          E. Agency or department consents required pursuant to the provisions of Section 32A-5-17 NMSA 1978 shall state the following:

                (1) the date, place and time of execution;

                (2) the date and place of birth of the adoptee and any names by which the adoptee has been known;

                (3) the name of the petitioner; and

                (4) the consent of the agency or department.

          F. A consent or relinquishment taken by an individual appointed to take consents or relinquishments by an agency shall be notarized, except that a consent or relinquishment signed in the presence of a judge need not be notarized. A hearing before the court for the purpose of taking a consent or relinquishment shall be heard by the court within seven days of request for setting.

          G. No consent to adoption or relinquishment of parental rights shall be valid if executed within forty-eight hours after the adoptee's birth. Consent to adoption or relinquishment of parental rights involving an Indian child shall comply with the more stringent requirements of the federal Indian Child Welfare Act of 1978.

          H. The requirements of a consent to adoption or relinquishment of parental rights involving an Indian child

and the rights of a parent of an Indian child to withdraw the consent or relinquishment shall be governed by the relevant provisions of the federal Indian Child Welfare Act of 1978.

          I. A consent to or relinquishment for adoption shall not be withdrawn prior to the entry of a decree of adoption unless the court finds, after notice and opportunity to be heard is afforded to the petitioner, to the person seeking the withdrawal and to the agency placing a child for adoption, that the consent or relinquishment was obtained by fraud. In no event shall a consent or relinquishment be withdrawn after the entry of a decree of adoption."

     Section 65. Section 32A-5-23 NMSA 1978 (being Laws 1993, Chapter 77, Section 150, as amended) is amended to read:

     "32A-5-23. PERSONS WHO MAY TAKE CONSENTS OR RELINQUISHMENTS.--

          A. A consent to adoption or relinquishment of parental rights shall be signed before and approved on the record by a judge who has jurisdiction over adoption proceedings, within or without this state, and who is in the jurisdiction in which the child is present or in which the parent resides at the time it is signed.

          B. No parent may relinquish parental rights to the department or an agency without the department's or the agency's consent.

          C. The consent or relinquishment shall be filed with the court in which the petition for adoption has been filed before adjudication of the petition."

     Section 66. Section 32A-5-24 NMSA 1978 (being Laws 1993, Chapter 77, Section 151) is amended to read:

     "32A-5-24. RELINQUISHMENTS TO THE DEPARTMENT.--

          A. When a parent elects to relinquish parental rights to the department, a petition to accept the relinquishment shall be filed, unless an abuse or neglect proceeding is pending. If an abuse or neglect proceeding is pending, the relinquishment shall be heard in the context of that proceeding.

          B. In all hearings regarding relinquishment of parental rights to the department, the child shall be represented by a guardian ad litem.

          C. If a proposed relinquishment of parental rights is not in contemplation of adoption, the court shall not allow the relinquishment of parental rights unless it finds that good cause exists, that the department has made reasonable efforts to preserve the family and that relinquishment of parental rights is in the child's best interest. Whenever a parent relinquishes his parental rights pursuant to this subsection, the parent shall remain financially responsible for the child. The court may order the parent to pay the reasonable costs of support and maintenance of the child. The court may use the child support guidelines set forth in Section 40-4-11.1 NMSA 1978 to calculate a reasonable payment.

          D. When a parent relinquishes the parent's rights under this section, the parent shall be notified that no contact will be enforced by the court, regardless of any informal agreement, unless the parties have agreed to an open adoption pursuant to Section 32A-5-35 NMSA 1978. The consent for relinquishment shall be in writing and shall state that the parties understand that any informal agreement allowing contact will not be enforced by the courts."

     Section 67. 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 the 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 the 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 him or who participated in any way in the handling of the funds, either directly or indirectly.

          B. A prospective adoptive parent, or another person acting on behalf of a prospective adoptive parent, 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 68. Section 32A-5-35 NMSA 1978 (being Laws 1993, Chapter 77, Section 162, as amended) is amended to read:

     "32A-5-35. OPEN ADOPTIONS.--

          A. The parents of the adoptee and the petitioner may agree to contact between the parents and the petitioner or contact between the adoptee and one or more of the parents or contact between the adoptee and relatives of the parents. An agreement shall, absent a finding to the contrary, be presumed to be in the best interests of the child and shall be included in the decree of adoption. The contact may include exchange of identifying or nonidentifying information or visitation between the parents or the parents' relatives and the petitioner or visitation between the parents or the parents' relatives and the adoptee. An agreement entered into pursuant to this section shall be considered an open adoption.

          B. The court may appoint a guardian ad litem for the adoptee. The court shall adopt a presumption in favor of appointing a guardian ad litem for the adoptee when visitation between the biological family and the adoptee is included in an agreement; however, this requirement may be waived by the court for good cause shown. When an adoptive placement is made voluntarily through an agency or pursuant to Section

32A-5-13 NMSA 1978, the court may, in its discretion, appoint a guardian ad litem. If the child is fourteen years of age or older, the court may appoint an attorney for the child. In all adoptions other than those in which the child is placed by the department, the court may assess the parties for the cost of services rendered by the guardian ad litem or the child's attorney. The duties of the guardian ad litem or child's attorney end upon the filing of the decree, unless otherwise ordered by the court.

          C. In determining whether the agreement is in the adoptee's best interests, the court shall consider the adoptee's wishes, but the wishes of the adoptee shall not control the court's findings as to the best interests of the adoptee.

          D. Every agreement entered into pursuant to provisions of this section shall contain a clause stating that the parties agree to the continuing jurisdiction of the court and to the agreement and understand and intend that any disagreement or litigation regarding the terms of the agreement shall not affect the validity of the relinquishment of parental rights, the adoption or the custody of the adoptee.

          E. The court shall retain jurisdiction after the decree of adoption is entered, if the decree contains an agreement for contact, for the purpose of hearing motions brought to enforce or modify an agreement entered into pursuant to the provisions of this section. The court shall not grant a request to modify the agreement unless the moving party establishes that there has been a change of circumstances and the agreement is no longer in the adoptee's best interests."

     Section 69. Section 32A-5-37 NMSA 1978 (being Laws 1993, Chapter 77, Section 164) is amended to read:

     "32A-5-37. STATUS OF ADOPTEE AND PETITIONER UPON ENTRY OF DECREE OF ADOPTION.--

          A. Once adopted, an adoptee shall take a name designated by the petitioner, except in stepparent adoptions. In stepparent adoptions, the adoptee shall take the new name designated by the petitioner in the petition so long as the petitioner's spouse and the child, if over the age of fourteen years, consent to the new name. The name change need not be requested in the petition.

          B. After adoption, the adoptee and the petitioner shall sustain the legal relation of parent and child as if the adoptee were the biological child of the petitioner and the petitioner were the biological parent of the child. The adoptee shall have all rights and be subject to all of the duties of that relation, including the right of inheritance from and through the petitioner, and the petitioner shall have all rights and be subject to all duties of that relation, including right of inheritance from and through the adoptee."

     Section 70. Section 32A-5-38 NMSA 1978 (being Laws 1993, Chapter 77, Section 165) is amended to read:

     "32A-5-38. BIRTH CERTIFICATES.--

          A. Within thirty days after an adoption decree becomes final, the petitioner shall prepare an application for a birth certificate in the new name of the adoptee, showing the petitioner as the adoptee's parent, and shall provide the application to the clerk of the court. The petitioner shall forward the application:

                (1) for a person born in the United States, to the appropriate vital statistics office of the place, if known, where the adoptee was born; or

                (2) for all other persons, to the state registrar of vital statistics. In the case of the adoption of a person born outside the United States, if requested by the petitioner, the court shall make findings, based on evidence from the petitioner and other reliable state or federal sources, on the date and place of birth of the adoptee. These findings shall be certified by the court and included with the application for a birth certificate.

          B. The state registrar of vital statistics shall prepare a birth record in the new name of the adoptee in accordance with the vital statistics laws, but subject to the requirements of the Adoption Act as to the confidentiality of adoption records."

     Section 71. Section 32A-5-39 NMSA 1978 (being Laws 1993, Chapter 77, Section 166, as amended by Laws 2003, Chapter 294, Section 6 and by Laws 2003, Chapter 321, Section 6) is amended to read:

     "32A-5-39. RECOGNITION OF FOREIGN DECREES.--

          A. Every decree or order of adoption terminating the parent-child relationship or establishing the relationship of parent and child by adoption entered by a court or other entity in another country acting pursuant to that country's law or pursuant to any convention or treaty or intercountry adoption that the United States has ratified shall be recognized in this state, so that the rights and obligations of the parties as to matters within the jurisdiction of this state shall be determined as though the decree or order of adoption were issued by the courts of this state.

          B. A convention adoption in a foreign country that is certified by the United States secretary of state shall be recognized as a final adoption in this state."

     Section 72. Section 32A-5-40 NMSA 1978 (being Laws 1993, Chapter 77, Section 167, as amended) is amended to read:

     "32A-5-40. POST-DECREE OF ADOPTION ACCESS TO RECORDS.--

          A. After the decree of adoption has been entered, all court files containing records of judicial proceedings conducted pursuant to the provisions of the Adoption Act and records submitted to the court in the proceedings shall be kept in separate locked files withheld from public inspection. Upon application to the clerk of the court, the records shall be open to inspection by a former parent if the adoptee is eighteen years of age or older, by an adoptee if the adoptee is eighteen years of age or older at the time application is made for inspection, by the adoptive parent if the adoptee is under eighteen years of age at the time application is made for inspection, by the attorney of any party, by any agency that has exercised guardianship over or legal custody of a child who was the adoptee in the particular proceeding, by the department or by an adoptee's sibling; provided that the identity of the former parents and of the adoptee shall be kept confidential unless the former parents and the adoptee have consented to the release of identity. In the absence of consent to release identity, the inspection shall be limited to the following nonidentifying information:

                (1) the health and medical histories of the adoptee's biological parents;

                (2) the health and medical history of the adoptee;

                (3) the adoptee's general family background, including ancestral information, without name references or geographical designations;

                (4) physical descriptions; and

                (5) the length of time the adoptee was in the care and custody of persons other than the petitioner.

          B. After the entry of the decree of adoption, at any time, a former parent may file with the court, with the placing agency or with the department:

                (1) a consent or refusal or an amended consent or refusal to be contacted;

                (2) a release of the former parent's identity to the adoptee if the adoptee is eighteen years of age or older or to the adoptive parent if the adoptee is under eighteen years of age; or

                (3) information regarding the former parent's location or changes in background information.

          C. Any changes to post-adoption access to records referred to in Subsection B of this section shall be filed with the court, the placing agency and the department.

          D. The consent or refusal referred to in Subsection B of this section shall be honored by the court, the placing agency or the department unless for good cause the court orders to the contrary.

          E. At any time, an adoptee who is eighteen years of age or older may file with the court, a placing agency or the department:

                (1) information regarding the adoptee's location; or

                (2) a consent or refusal regarding opening of the adoptee's adoption file to the adoptee's former parents.

          F. If mutual authorizations for release of identifying information by the parties are not available, an adoptee who is eighteen years of age or older, the biological parents if the adoptee is eighteen years of age or older or the adoptive parents if the adoptee is under the age of eighteen years may file a motion with the court to obtain the release of identifying information for good cause shown. When hearing the motion, the court shall give primary consideration to the best interests of the adoptee, but shall also give due consideration to the interests of the members of the adoptee's former and adoptive families. In determining whether good cause exists for the release of identifying information, the court shall consider:

                (1) the reason the information is sought;

                (2) any procedure available for satisfying the petitioner's request without disclosing the name or identity of another individual, including appointment of a confidential intermediary to contact the individual and request specific information;

                (3) whether the individual about whom identifying information is sought is alive;

                (4) the preference, to the extent known, of the adoptee, the adoptive parents, the former parents and other members of the adoptee's former and adoptive families and the likely effect of disclosure on those individuals;

                (5) the age, maturity and expressed needs of the adoptee;

                (6) the report or recommendation of any individual appointed by the court to assess the request for identifying information; and

                (7) any other factor relevant to an assessment of whether the benefit to the adoptee of releasing the information sought will be greater than the benefit to any other individual of not releasing the information.

          G. An adoptee shall have the right, for the purpose of enrolling in the adoptee's tribe of origin, to access information kept by the department. Information needed by an adoptee to enroll in his tribe of origin may be requested from the department by the following persons:

                (1) the adoptee, after he reaches eighteen years of age;

                (2) when the adoptee is a child, his adoptive parent or guardian; or

                (3) an adoptee's descendant or, if the adoptee's descendant is a child, an adult representative for the descendant.

          H. When the department receives a request for information regarding an adoptee's tribe of origin, the department shall examine its records to determine if the adoptee is of Indian descent. If the department establishes that an adoptee is of Indian descent, the department shall:

                (1) provide the requester with the tribal affiliation of the adoptee's biological parents;

                (2) submit to the tribe information necessary to establish tribal enrollment for the adoptee and to protect any rights flowing from the adoptee's tribal relationship; and

                (3) provide notice to the requester of the department's submission of information to the adoptee's tribe."

     Section 73. Section 32A-5-45 NMSA 1978 (being Laws 1993, Chapter 77, Section 172) is amended to read:

     "32A-5-45. ADMINISTRATION OF SUBSIDIZED ADOPTIONS.--

          A. The department shall promulgate all necessary regulations for the administration of the program of subsidized adoptions or placement with permanent guardians.

          B. Subsidy payments may include payments to vendors for medical and surgical expenses and payments to the adoptive parents or permanent guardians for maintenance and other costs incidental to the adoption, care, training and education of the child. The payments in any category of assistance shall not exceed the cost of providing the assistance in foster care. Payments shall not be made under this section after the child reaches eighteen years of age, except for a child who is enrolled in the medically fragile waiver program, in which case the payments may extend until the child is twenty-one years of age.

          C. A written agreement between the adoptive family or permanent guardians and the department shall precede the decree of adoption or permanent guardianship. The agreement shall incorporate the terms and conditions of the subsidy plan based on the individual needs of the child within the permanent family. In cases of subsidies that continue for more than one year, there shall be an annual redetermination of the need for a subsidy. The department shall develop an appeal procedure whereby a permanent family may contest a division determination to deny, reduce or terminate a subsidy."

     Section 74. Section 32A-15-1 NMSA 1978 (being Laws 1985, Chapter 103, Section 1 and Laws 1985, Chapter 140, Section 1, as amended) is amended to read:

     "32A-15-1. SHORT TITLE.--Chapter 32A, Article 15 NMSA 1978 may be cited as the "New Mexico Children's and Juvenile Facility and Program Criminal Records Screening Act"."

     Section 75. Section 32A-15-2 NMSA 1978 (being Laws 1985, Chapter 103, Section 2 and Laws 1985, Chapter 140, Section 2) is amended to read:

     "32A-15-2. PURPOSE.--The purpose of the New Mexico Children's and Juvenile Facility and Program Criminal Records Screening Act is to comply with the provisions of Public Law 98-473 and Public Law 108-36 and to protect the safety and welfare of children."

     Section 76. Section 32A-15-3 NMSA 1978 (being Laws 1985, Chapter 103, Section 3 and Laws 1985, Chapter 140, Section 3, as amended) is amended to read:

     "32A-15-3. CRIMINAL HISTORY RECORDS CHECK--BACKGROUND CHECKS.--

          A. Nationwide criminal history record checks shall be conducted on all operators, staff and employees and prospective operators, staff and employees of child care facilities, including every facility or program that has primary custody of children for twenty hours or more per week, and juvenile detention, correction or treatment facilities. Nationwide criminal history record checks shall also be conducted on all prospective foster or adoptive parents and other adult relatives and non-relatives residing in the prospective foster or adoptive parent's household. The objective of conducting the record checks is to protect the children involved and promote the children's safety and welfare while receiving service from the facilities and programs.

          B. The department shall fingerprint all operators, staff and employees and prospective operators, staff and employees of child care facilities and all prospective foster or adoptive parents and other adult relatives and

non-relatives residing in the prospective foster or adoptive parent's household. The department shall conduct a background check of all operators, staff and employees and prospective operators, staff and employees of child care facilities and all prospective foster or adoptive parents and other adult relatives and non-relatives residing in the prospective foster or adoptive parent's household and shall submit a fingerprint card for those individuals to the department of public safety and the federal bureau of investigation for this purpose.

          C. Criminal history records obtained by the department pursuant to the provisions of this section are confidential. The department is authorized to use criminal history records obtained from the federal bureau of investigation to conduct background checks on prospective operators, staff and employees of child care facilities and foster parents.

          D. Criminal history records obtained pursuant to the provisions of this section shall not be used for any purpose other than conducting background checks. Criminal history records obtained pursuant to the provisions of this section and the information contained in those records shall not be released or disclosed to any other person or agency, except pursuant to a court order or with the written consent of the person who is the subject of the records.

          E. A person who releases or discloses criminal history records or information contained in those records in violation of the provisions of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."

     Section 77. REPEAL.--

          A. Sections 32A-3-1 and 32A-3A-5 NMSA 1978 (being Laws 1993, Chapter 77, Section 62 and Laws 1993, Chapter 77, Section 67) are repealed.

          B. Laws 2003, Chapter 225, Section 10 is repealed.