HOUSE BILL 266

52nd legislature - STATE OF NEW MEXICO - second session, 2016

INTRODUCED BY

Christine Trujillo

AN ACT

RELATING TO CHILD CUSTODY; PROVIDING FOR THE PERMANENT SUSPENSION OF PARENTAL RIGHTS OF A PERPETRATOR OF CRIMINAL SEXUAL PENETRATION OR CRIMINAL SEXUAL CONTACT UNDER CERTAIN CIRCUMSTANCES.

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

     SECTION 1. [NEW MATERIAL] PERMANENT SUSPENSION OF PARENTAL RIGHTS--CRIMINAL SEXUAL PENETRATION OR CRIMINAL SEXUAL CONTACT.--

          A. Pursuant to the provisions of this section, a district court may grant a motion filed by a custodial parent requesting the permanent suspension of the parental rights of a respondent who caused a child to be conceived through criminal sexual penetration or criminal sexual contact. For a motion filed:

                (1) within two years of the date on which the child was born, the permanent suspension of parental rights shall be granted only if the court finds clear and convincing evidence that the child was conceived as a result of the respondent committing criminal sexual penetration or criminal sexual contact;

                (2) between two and six years from the date on which the child was born, permanent suspension of parental rights shall be granted only if the court finds that the child was conceived as a result of criminal sexual penetration or criminal sexual contact for which the respondent was convicted; and

                (3) after six years from the date on which the child was born, the parental rights of the respondent shall not be determined pursuant to the provisions of this section.

          B. A motion for permanent suspension of parental rights of the respondent filed pursuant to this section shall set forth:

                (1) the current relationship between the custodial parent and the respondent;

                (2) the facts and circumstances of the child's conception;

                (3) the date and place of birth of the child;

                (4) the name and address of the respondent, if known;

                (5) the name and address of the person or persons who would have legal and physical custody of the child upon the permanent suspension of the respondent's parental rights; and

                (6) whether the child and, therefore, the proceedings are subject to the federal Indian Child Welfare Act of 1978 and, if so:

                     (a) the tribal affiliations of the child's biological parents;

                     (b) the specific actions taken by the custodial parent to notify the child's biological 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 motion; and

                     (c) the specific efforts 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 custodial parent on all other parties, including, if applicable, the foster parent, the person providing care for the child with whom the child is residing, the custodian of the child, any person appointed to represent a party and any other person the court orders. Service shall be in accordance with the Rules of Civil Procedure for the District Courts for the service of motions, except that foster parents and attorneys of record in the 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 thirty days if the person intends to contest the permanent suspension of parental rights. 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 biological parents and upon any "Indian custodian", as that term is defined in 25 U.S.C. Section 1903(6).

          D. When a motion to permanently suspend parental rights is filed, the custodial parent 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.

          E. After a motion is filed, the court shall advise the custodial parent and respondent of the right to counsel, if any, and the court may appoint counsel from the children, youth and families department upon request for a party whom the court determines to be indigent.

          F. If there is significant cause, the court may appoint a guardian ad litem for a child who is the subject of a proceeding pursuant to this section. When the court appoints a guardian ad litem, the court shall make a record of its reasons for the appointment. A party to the proceeding or an employee or representative of a party shall not be appointed as guardian ad litem.

          G. Notwithstanding the provisions of Paragraphs (1) and (2) of Subsection A of this section, when a child is subject to the provisions of the federal Indian Child Welfare Act of 1978 and the custodial parent files a motion pursuant to the provisions of this section within six years of the date on which the child was born:

                (1) the grounds for permanent suspension of parental rights shall be proved beyond a reasonable doubt and shall meet the requirements set forth in 25 U.S.C. Section 1912(f); and

                (2) the court shall, in an order permanently suspending parental rights, make specific findings that the requirements of that act have been met.  

          H. A judgment of the court permanently suspending a respondent's parental rights pursuant to this section shall provide:

                (1) that the respondent has no rights to legal or physical custody of or visitation with the child;

                (2) that the respondent has no right to consent to or receive notice of a subsequent adoption proceeding concerning the child;

                (3) that the judgment does not affect the ability of the custodial parent, the child or the state to seek child support for the child from the respondent;

                (4) that the judgment does not affect the child's right of inheritance from and through the respondent;

                (5) that the respondent has no right of inheritance from the child; and

                (6) the name of the person who retains custody of the child.

          I. As used in this section:

                (1) "criminal sexual contact" means the conduct proscribed under Section 30-9-12 or 30-9-13 NMSA 1978 or the equivalent laws of another jurisdiction, territory or possession of the United States or an Indian nation, tribe or pueblo;

                (2) "criminal sexual penetration" means the conduct proscribed under Section 30-9-11 NMSA 1978 or the equivalent laws of another jurisdiction, territory or possession of the United States or an Indian nation, tribe or pueblo;

                (3) "custodial parent" means a biological or adoptive parent or person who filed a motion pursuant to this section, is acting as a parent and has legal or physical custody of the child or claims a right to have legal or physical custody of the child and is not the respondent;

                (4) "parental rights" includes legal custody, physical custody and visitation rights; and

                (5) "respondent" means a biological parent alleged by the custodial parent to have caused the conception of the child through criminal sexual penetration or criminal sexual contact.

- 7 -