0001| HOUSE BILL 717
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| R. DAVID PEDERSON
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0005|
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0006|
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0007|
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0008| FOR THE COURTS, CORRECTIONS AND CRIMINAL JUSTICE COMMITTEE
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0009|
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0010| AN ACT
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0011| RELATING TO CHILDREN; CHANGING PROCEDURES AND TIME FRAMES FOR
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0012| HEARINGS HELD PURSUANT TO THE ABUSE AND NEGLECT ACT; AMENDING
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0013| AND ENACTING SECTIONS OF THE ABUSE AND NEGLECT ACT.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. Section 32A-4-19 NMSA 1978 (being Laws 1993,
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0017| Chapter 77, Section 113) is amended to read:
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0018| "32A-4-19. ADJUDICATORY HEARINGS--TIME LIMITATIONS.--
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0019| A. The adjudicatory hearing in a neglect or abuse
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0020| proceeding shall be commenced within [ninety] sixty days
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0021| after the latest of the following dates:
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0022| (1) the date that the petition is served on
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0023| the respondent;
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0024| (2) if the trial court orders a mistrial or a
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0025| new trial, the date that the order is filed; or
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0001| (3) in the event of an appeal, the date that
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0002| the mandate or order is filed in the district court disposing
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0003| of the appeal.
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0004| B. Prior to the adjudicatory hearing, all parties
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0005| to the hearing shall attend a mandatory meeting and attempt to
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0006| settle issues attendant to the adjudicatory hearing and develop
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0007| a proposed treatment plan that serves the child's best
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0008| interest.
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0009| [B.] C. The children's court attorney shall
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0010| represent the state at the adjudicatory hearing.
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0011| [C.] D. When the adjudicatory hearing on any
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0012| petition is not begun within the time period specified in
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0013| Subsection A of this section or within the period of any
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0014| extension granted, the petition shall be dismissed with
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0015| prejudice."
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0016| Section 2. Section 32A-4-22 NMSA 1978 (being Laws 1993,
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0017| Chapter 77, Section 116) is amended to read:
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0018| "32A-4-22. DISPOSITION OF ADJUDICATED ABUSED OR NEGLECTED
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0019| CHILD.--
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0020| A. If not held in conjunction with the
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0021| adjudicatory hearing, the dispositional hearing shall be
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0022| commenced within thirty days after the conclusion of the
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0023| adjudicatory hearing. At the conclusion of the dispositional
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0024| hearing, the court shall make and include in the dispositional
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0025| judgment its findings on the following:
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0001| (1) the interaction and interrelationship of
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0002| the child with his parent, siblings and any other person who
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0003| may significantly affect the child's best interest;
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0004| (2) the child's adjustment to his home, school
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0005| and community;
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0006| (3) the mental and physical health of all
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0007| individuals involved;
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0008| (4) the wishes of the child as to his
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0009| custodian;
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0010| (5) the wishes of the child's parent, guardian
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0011| or custodian as to the child's custody;
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0012| (6) whether there exists a relative of the
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0013| child or other individual who, after study by the department,
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0014| is found to be qualified to receive and care for the child;
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0015| (7) the availability of services recommended
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0016| in the treatment plan prepared as a part of the predisposition
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0017| study in accordance with the provisions of Section [32-4-19]
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0018| 32A-4-21 NMSA 1978;
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0019| (8) the ability of the parent to care for the
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0020| child in the home so that no harm will result to the child;
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0021| (9) whether reasonable efforts were
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0022| [utilized] used by the department to prevent removal of the
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0023| child from the home prior to placement in substitute care and
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0024| whether reasonable efforts were [utilized] used to attempt
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0025| reunification of the child with the natural parent; and
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0001| (10) if the child is an Indian child, whether
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0002| the placement preferences set forth in the federal Indian Child
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0003| Welfare Act of 1978 or the placement preferences of the child's
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0004| Indian tribe have been followed and whether the Indian child's
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0005| treatment plan provides for maintaining the Indian child's
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0006| cultural ties. When placement preferences have not been
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0007| followed, good cause for noncompliance shall be clearly stated
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0008| and supported.
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0009| B. If a child is found to be neglected or abused,
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0010| the court may enter its judgment making any of the following
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0011| dispositions to protect the welfare of the child:
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0012| (1) permit the child to remain with his
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0013| parent, guardian or custodian, subject to those conditions and
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0014| limitations the court may prescribe;
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0015| (2) place the child under protective
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0016| supervision of the department; or
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0017| (3) transfer legal custody of the child to any
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0018| of the following:
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0019| (a) [to] the noncustodial parent, if
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0020| it is found to be in the child's best interest;
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0021| (b) an agency responsible for the care
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0022| of neglected or abused children; or
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0023| (c) a child-placement agency willing and
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0024| able to assume responsibility for the education, care and
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0025| maintenance of the child and licensed or otherwise authorized
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0001| by law to receive and provide care for the child.
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0002| C. If a child is found to be neglected or abused,
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0003| in its dispositional judgment the court shall also order the
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0004| department to implement and the child's parent, guardian or
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0005| custodian to cooperate with any treatment plan approved by the
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0006| court.
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0007| D. Any parent, guardian or custodian of a child who
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0008| is placed in the legal custody of the department or other
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0009| person pursuant to Subsection B of this section shall have
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0010| reasonable rights of visitation with the child as determined by
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0011| the court, unless the court finds that the best interests of
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0012| the child preclude any visitation.
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0013| E. The court may order reasonable visitation
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0014| between a child placed in the custody of the department and the
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0015| child's siblings or any other person who may significantly
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0016| affect the child's best interest, if the court finds the
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0017| visitation to be in the child's best interest.
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0018| F. Unless a child found to be neglected or abused
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0019| is also found to be delinquent, the child shall not be confined
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0020| in an institution established for the long-term care and
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0021| rehabilitation of delinquent children.
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0022| G. When the court vests legal custody in an agency,
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0023| institution or department, the court shall transmit with the
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0024| dispositional judgment copies of the clinical reports, the
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0025| predisposition study and report and any other information it
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0001| has pertinent to the care and treatment of the child.
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0002| H. Prior to any child being placed in the custody
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0003| or protective supervision of the department, the department
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0004| shall be provided with reasonable oral or written notification
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0005| and an opportunity to be heard. At any hearing held pursuant
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0006| to this subsection, the department may appear as a party.
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0007| I. When a child is placed in the custody of the
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0008| department, the department shall investigate whether the child
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0009| is eligible for enrollment as a member of an Indian tribe and,
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0010| if so, the department shall pursue the enrollment on the
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0011| child's behalf."
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0012| Section 3. Section 32A-4-25 NMSA 1978 (being Laws 1993,
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0013| Chapter 77, Section 119, as amended) is amended to read:
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0014| "32A-4-25. PERIODIC REVIEW OF DISPOSITIONAL JUDGMENTS.--
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0015| A. Within [six months] sixty days of any
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0016| original dispositional order and within six months of any
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0017| subsequent continuation of the order, including a subsequent
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0018| continuation of a dispositional order ordered by the court
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0019| during a permanency hearing, the department shall petition the
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0020| court for a review of the disposition of an adjudicated
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0021| neglected or abused child. Prior to the review, the department
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0022| shall submit a progress report to the local substitute care
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0023| review board for that judicial district created under the
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0024| Citizen Substitute Care Review Act. Prior to any judicial
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0025| review by the court pursuant to this section, the local
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0001| substitute care review board may review the dispositional order
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0002| or the continuation of the order and the department's progress
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0003| report and report its findings and recommendations to the
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0004| court. The review may be carried out by either of the
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0005| following:
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0006| (1) a judicial review hearing conducted by the
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0007| court; or
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0008| (2) a judicial review hearing conducted by a
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0009| special master appointed by the court; provided, however, that
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0010| the court approve any findings made by the special master.
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0011| B. The children's court attorney shall give notice
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0012| to all parties, the child's guardian ad litem, the child's
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0013| CASA, a contractor administering the local substitute care
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0014| review board and the child's foster parent or substitute care
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0015| provider of the time, place and purpose of any judicial review
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0016| hearing held pursuant to Subsection A of this section.
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0017| C. At any judicial review hearing held pursuant to
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0018| Subsection A of this section, the department, the child's
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0019| guardian ad litem and all parties given notice under Subsection
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0020| B of this section shall have the opportunity to present
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0021| evidence and to cross-examine witnesses. At the hearing, the
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0022| department shall show that it has made reasonable effort to
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0023| implement any treatment plan approved by the court in its
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0024| dispositional order and shall present a treatment plan
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0025| consistent with the purposes of the Children's Code for any
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0001| period of extension of the dispositional order. The respondent
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0002| shall demonstrate to the court that efforts to comply with the
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0003| treatment plan approved by the court in its dispositional order
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0004| and efforts to maintain contact with the child were diligent
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0005| and made in good faith. The court shall determine the extent
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0006| of compliance with the treatment plan and whether progress is
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0007| being made toward establishing a stable and permanent placement
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0008| for the child.
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0009| D. The Rules of Evidence shall not apply to
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0010| hearings held pursuant to this section. The court may admit
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0011| testimony by any person given notice of the hearing who has
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0012| information about the status of the child or the status of the
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0013| treatment plan.
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0014| E. At the conclusion of any hearing held pursuant
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0015| to this section, the court shall make findings of fact and
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0016| conclusions of law.
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0017| F. When the child is an Indian child, the court
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0018| shall determine during review of a dispositional order whether
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0019| the placement preferences set forth in the federal Indian Child
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0020| Welfare Act of 1978 or the placement preferences of the child's
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0021| Indian tribe were followed and whether the child's treatment
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0022| plan provides for maintaining the child's cultural ties. When
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0023| placement preferences have not been followed, good cause for
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0024| noncompliance shall be clearly stated and supported.
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0025| G. Based on its findings, the court shall order one
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0001| of the following dispositions:
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0002| (1) dismiss the action and return the child to
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0003| his parent without supervision if the court finds that
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0004| conditions in the home that led to abuse have been corrected
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0005| and it is now safe for the return of the abused child;
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0006| (2) permit the child to remain with his
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0007| parent, guardian or custodian subject to those conditions and
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0008| limitations the court may prescribe, including protective
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0009| supervision of the child by the department;
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0010| (3) return the child to his parent and place
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0011| the child under the protective supervision of the department;
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0012| (4) transfer or continue legal custody of the
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0013| child to:
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0014| (a) the noncustodial parent, if that is
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0015| found to be in the child's best interests;
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0016| (b) a relative or other individual who,
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0017| after study by the department or other agency designated by the
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0018| court, is found by the court to be qualified to receive and
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0019| care for the child and is appointed as a permanent guardian of
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0020| the child; or
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0021| (c) the department, subject to the
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0022| provisions of Paragraph (6) of this subsection;
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0023| (5) continue the child in the legal custody of
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0024| the department with or without any required parental
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0025| involvement in a treatment plan;
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0001| (6) make additional orders regarding the
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0002| treatment plan or placement of the child to protect the child's
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0003| best interests if the court determines the department has
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0004| failed in implementing any material provision of the treatment
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0005| plan or abused its discretion in the placement or proposed
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0006| placement of the child; or
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0007| (7) if during a judicial review the court
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0008| finds that the child's parent, guardian or custodian has not
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0009| complied with the court-ordered treatment plan, the court may
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0010| order:
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0011| (a) the child's parent, guardian or
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0012| custodian to show cause why he should not be held in contempt
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0013| of court; or
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0014| (b) a hearing on the merits of
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0015| terminating parental rights.
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0016| H. Dispositional orders entered pursuant to this
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0017| section shall remain in force for a period of six months,
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0018| except for orders that provide for transfer of the child to the
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0019| child's noncustodial parent or to a permanent guardian.
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0020| I. The report of the local substitute care review
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0021| board submitted to the court pursuant to Subsection A of this
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0022| section shall become a part of the child's permanent court
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0023| record."
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0024| Section 4. A new section of the Abuse and Neglect Act is
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0025| enacted to read as follows:
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0001| "[NEW MATERIAL] PERMANENCY HEARINGS--REBUTTABLE
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0002| PRESUMPTIONS.--
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0003| A. A permanency hearing shall be commenced within
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0004| six months of the initial judicial review of the child's
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0005| dispositional order. Prior to the permanency hearing, all
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0006| parties to the hearing shall attend a mandatory meeting and
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0007| attempt to settle issues attendant to the permanency hearing
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0008| and develop a proposed treatment plan that serves the child's
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0009| best interest.
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0010| B. During a permanency hearing, there shall be a
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0011| rebuttable presumption that the child's best interest will be
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0012| served by returning the child to his parent, guardian or
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0013| custodian. At the hearing, all parties shall have the
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0014| opportunity to present evidence and to cross-examine witnesses.
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0015| At the conclusion of the permanency hearing, the court shall
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0016| determine if sufficient evidence was presented to rebut the
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0017| presumption.
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0018| C. If insufficient evidence is presented to rebut,
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0019| by clear and convincing evidence, the presumption set forth in
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0020| Subsection B of this section, the court shall order one of the
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0021| following dispositions:
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0022| (1) dismiss the case and return the child to
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0023| his parent, guardian or custodian; or
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0024| (2) return the child to his parent, guardian
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0025| or custodian, subject to those conditions and limitations the
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0001| court may prescribe, including protective supervision of the
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0002| child by the department and continuation of the treatment plan
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0003| for not more than six months.
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0004| D. If sufficient evidence is presented to rebut, by
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0005| clear and convincing evidence, the presumption set forth in
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0006| Subsection B of this section, the court shall order that the
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0007| child remain in the legal custody of the department and make
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0008| additional orders regarding the treatment plan. Within three
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0009| months of a permanency hearing order issued pursuant to this
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0010| subsection, if a motion to terminate parental rights or appoint
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0011| a permanent guardian has not been filed, a subsequent
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0012| permanency hearing shall be commenced.
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0013| E. During a subsequent permanency hearing, there
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0014| shall be a rebuttable presumption that the child's best
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0015| interest will be served by initiating proceedings for adoption
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0016| of the child, permanent guardianship for the child or long-term
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0017| care for the child. At the hearing, all parties shall have the
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0018| opportunity to present evidence and cross-examine witnesses.
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0019| At the conclusion of the hearing, the court shall determine if
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0020| sufficient evidence was presented to rebut the presumption.
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0021| F. If insufficient evidence is presented to rebut,
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0022| by a preponderance of the evidence, the presumption set forth
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0023| in Subsection E of this section, the court shall order that:
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0024| (1) proceedings be initiated for adoption of
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0025| the child, permanent guardianship for the child or long-term
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0001| care for the child; and
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0002| (2) reunification of the parent and the child
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0003| is not in the child's best interest.
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0004| G. If sufficient evidence is presented to rebut, by
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0005| a preponderance of the evidence, the presumption set forth in
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0006| Subsection E of this section, the court shall order one of the
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0007| following dispositions:
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0008| (1) dismiss the case and return the child to
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0009| his parent, guardian or custodian; or
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0010| (2) return the child to his parent, guardian
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0011| or custodian, subject to those conditions and limitations the
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0012| court may prescribe, including protective supervision of the
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0013| child by the department and continuation of the treatment plan
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0014| for not more than six months.
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0015| H. The children's court attorney shall give notice
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0016| to all parties, the child's guardian ad litem, the child's
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0017| CASA, a contractor administering the local substitute care
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0018| review board and the child's foster parent or substitute care
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0019| provider of the time, place and purpose of any permanency
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0020| hearing held pursuant to this section.
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0021| I. The Rules of Evidence shall not apply to
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0022| permanency hearings. The court may admit testimony by any
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0023| person given notice of the permanency hearing who has
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0024| information about the status of the child or the status of the
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0025| treatment plan.
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0001| J. At the conclusion of any permanency hearing held
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0002| pursuant to this section, the court shall make findings of fact
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0003| and conclusions of law."
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0004| Section 5. Section 32A-4-28 NMSA 1978 (being Laws 1993,
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0005| Chapter 77, Section 122, as amended) is amended to read:
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0006| "32A-4-28. TERMINATION OF PARENTAL RIGHTS--ADOPTION
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0007| DECREE.--
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0008| A. In proceedings to terminate parental rights, the
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0009| court shall give primary consideration to the physical, mental
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0010| and emotional welfare and needs of the child, including the
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0011| likelihood of the child being adopted if parental rights are
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0012| terminated.
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0013| B. The court shall terminate parental rights with
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0014| respect to a child when:
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0015| (1) there has been an abandonment of the child
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0016| by his parents;
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0017| (2) the child has been a neglected or abused
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0018| child as defined in the Abuse and Neglect Act and the court
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0019| finds that the conditions and causes of the neglect and abuse
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0020| are unlikely to change in the foreseeable future despite
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0021| reasonable efforts by the department or other appropriate
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0022| agency to assist the parent in adjusting the conditions that
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0023| render the parent unable to properly care for the child.
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0024| [provided] The court may find in some cases that efforts by
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0025| the department or another agency [would be] are
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0001| unnecessary, when there is a clear showing that the efforts
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0002| would be futile or when a parent has caused great bodily harm
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0003| or death to the child or the child's sibling; or
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0004| (3) the child has been placed in the care of
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0005| others, including care by other relatives, either by a court
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0006| order or otherwise and the following conditions exist:
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0007| (a) the child has lived in the home of
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0008| others for an extended period of time;
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0009| (b) the parent-child relationship has
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0010| disintegrated;
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0011| (c) a psychological parent-child
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0012| relationship has developed between the substitute family and
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0013| the child;
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0014| (d) if the court deems the child of
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0015| sufficient capacity to express a preference, the child no
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0016| longer prefers to live with the natural parent;
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0017| (e) the substitute family desires to
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0018| adopt the child; and
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0019| (f) a presumption of abandonment created
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0020| by the conditions described in Subparagraphs (a) through (e) of
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0021| this paragraph has not been rebutted.
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0022| C. A finding by the court that all of the
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0023| conditions set forth in Subparagraphs (a) through (e) of
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0024| Paragraph (3) of Subsection B of this section exist shall
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0025| create a rebuttable presumption of abandonment.
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0001| D. The termination of parental rights involving a
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0002| child subject to the federal Indian Child Welfare Act of 1978
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0003| shall comply with the requirements of that act.
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0004| E. [When] If the court finds that parental
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0005| rights should be terminated; that the requirements for the
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0006| adoption of a child have been satisfied; that the prospective
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0007| adoptive parent is a party to the action; and that [the] good
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0008| cause exists to waive the filing of a separate petition for
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0009| adoption, the court may proceed to grant adoption of the child,
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0010| absent an appeal of the termination of parental rights. The
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0011| court shall not waive any time requirements set forth in the
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0012| Adoption Act, unless the termination of parental rights
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0013| occurred pursuant to the provisions of Paragraph (3) of
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0014| Subsection B of this section. The court may enter a decree of
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0015| adoption only after finding that the party seeking to adopt the
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0016| child has satisfied all of the requirements set forth in the
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0017| Adoption Act. Unless otherwise stipulated by all parties, an
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0018| adoption decree shall take effect sixty days after the
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0019| termination of parental rights, to allow the department
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0020| sufficient time to provide counseling for the child and
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0021| otherwise prepare the child for the adoption. The adoption
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0022| decree shall conform to the requirements of the Adoption Act
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0023| and shall have the same force and effect as other adoption
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0024| decrees entered pursuant to that act. The court clerk shall
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0025| assign an adoption case number to the adoption decree."
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0001| Section 6. Section 32A-4-29 NMSA 1978 (being Laws 1993,
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0002| Chapter 77, Section 123) is amended to read:
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0003| "32A-4-29. TERMINATION PROCEDURE.--
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0004| A. A motion to terminate parental rights may be
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0005| filed at any stage of the abuse or neglect proceeding. The
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0006| proceeding may be initiated by any of the following:
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0007| (1) the department;
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0008| (2) a licensed child placement agency; or
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0009| (3) any other person having a legitimate
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0010| interest in the matter, including the child's guardian ad
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0011| litem, a petitioner for adoption, a foster parent or a relative
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0012| of the child.
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0013| B. The motion for termination of parental rights
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0014| shall be signed, verified by the moving party and filed with
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0015| the court. The motion shall set forth:
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0016| (1) the date, place of birth and marital
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0017| status of the child, if known;
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0018| (2) the grounds for termination and the facts
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0019| and circumstances supporting the grounds for termination;
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0020| (3) the names and addresses of the persons or
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0021| authorized agency or agency officer to whom custody might be
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0022| transferred;
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0023| (4) whether the child resides or has resided
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0024| with a foster parent who desires to adopt this child;
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0025| (5) whether the motion is in contemplation of
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0001| adoption;
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0002| (6) the relationship or legitimate interest of
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0003| the moving party to the child; and
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0004| (7) whether the child is subject to the
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0005| federal Indian Child Welfare Act of 1978 and, if so:
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0006| (a) the tribal affiliations of the
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0007| child's parents;
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0008| (b) the specific actions taken by the
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0009| moving party to notify the parents' [tribe] tribes and the
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0010| results of the contacts, including the names, addresses, titles
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0011| and telephone numbers of the persons contacted. Copies of any
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0012| correspondence with the tribes shall be attached as exhibits to
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0013| the petition; and
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0014| (c) what specific efforts were made to
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0015| comply with the placement preferences set forth in the federal
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0016| Indian Child Welfare Act of 1978 or the placement preferences
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0017| of the appropriate Indian tribes.
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0018| C. A parent who has not previously been a party to
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0019| the proceeding shall be named in the motion and shall become a
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0020| party to the proceeding.
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0021| D. Notice of the filing of the motion, accompanied
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0022| by a copy of the motion, shall be served by the moving party on
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0023| the parents of the child, any parent who has not previously
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0024| been made a party to the proceeding, foster parents with whom
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0025| the child is residing, foster parents with whom the child has
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0001| resided for six months within the previous twelve months, the
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0002| custodian of the child, the department, any person appointed to
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0003| represent any party, including the child's guardian ad litem,
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0004| and any other person the court orders. Service shall be in
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0005| accordance with the Rules of Civil Procedure for the District
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0006| Courts for the service of process in a civil action in this
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0007| state, except that foster parents and attorneys of record in
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0008| this proceeding may be served by certified mail. The notice
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0009| shall state specifically that the person served [must]
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0010| shall file a written response to the motion within twenty
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0011| days if the person intends to contest the termination. In any
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0012| case involving a child subject to the federal Indian Child
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0013| Welfare Act of 1978, notice shall also be served upon the
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0014| tribes of the child's parents and upon any "Indian custodian"
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0015| as that term is defined in 25 U.S.C. Section 1903(6).
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0016| E. If the identity or whereabouts of a person
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0017| entitled to service are unknown, the moving party shall file a
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0018| motion for an order granting service by publication supported
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0019| by the affidavit of the moving party or his agent or attorney
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0020| detailing the efforts made to locate the person entitled to
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0021| service. Upon being satisfied that reasonable efforts to
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0022| locate the person entitled to service have been made and that
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0023| information as to the identity or whereabouts of the person is
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0024| still insufficient to effect service in accordance with the
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0025| Rules of Civil Procedure for the District Courts, the court
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0001| shall order service by publication pursuant to the Rules of
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0002| Civil Procedure for the District Courts.
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0003| F. After a motion for the termination of parental
|
0004| rights is filed, the parent shall be advised of the right to
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0005| counsel, unless the parent is already represented by counsel.
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0006| Counsel shall be appointed, upon request, for any parent who is
|
0007| unable to obtain counsel due to financial reasons or, if in the
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0008| court's discretion, the interests of justice require
|
0009| appointment of counsel.
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0010| G. The court shall assure that a guardian ad litem
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0011| represents the child in all proceedings for the termination of
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0012| parental rights.
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0013| H. When a motion to terminate parental rights is
|
0014| filed, the moving party shall request a hearing on the motion.
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0015| The hearing date shall be at least thirty days, but no more
|
0016| than sixty days, after service is effected upon the parties
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0017| entitled to service under this section.
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0018| I. In any action for the termination of parental
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0019| rights brought by a party other than the department and
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0020| involving a child in the custody of the department, the
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0021| department may:
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0022| (1) litigate a motion for the termination of
|
0023| parental rights that was initially filed by another party; or
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0024| (2) move that the motion for the termination
|
0025| of parental rights be found premature and denied.
|
0001| J. The grounds for any attempted termination shall
|
0002| be proved by clear and convincing evidence. In any proceeding
|
0003| involving a child subject to the federal Indian Child Welfare
|
0004| Act of 1978, the grounds for any attempted termination shall be
|
0005| proved beyond a reasonable doubt and shall meet the
|
0006| requirements set forth in 25 U.S.C. Section 1912(f).
|
0007| K. When the court terminates parental rights, it
|
0008| shall appoint a custodian for the child and fix responsibility
|
0009| for the child's support.
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0010| L. In any termination proceeding involving a child
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0011| subject to the federal Indian Child Welfare Act of 1978, the
|
0012| court shall in any termination order make specific findings
|
0013| that the requirements of that act have been met.
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0014| M. A judgment of the court terminating parental
|
0015| rights divests the parent of all legal rights and privileges
|
0016| and dispenses with both the necessity for the consent to or
|
0017| receipt of notice of any subsequent adoption proceeding
|
0018| concerning the child. A judgment of the court terminating
|
0019| parental rights shall not affect the child's rights of
|
0020| inheritance from and through the child's biological parents."
|
0021| Section 7. EFFECTIVE DATE.--The effective date of the
|
0022| provisions of this act is July 1, 1997.
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0023| State of New Mexico
|
0024| House of Representatives
|
0025|
|
0001| FORTY-THIRD LEGISLATURE
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0002| FIRST SESSION, 1997
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0003|
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0004|
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0005| February 22, 1997
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0006|
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0007|
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0008| Mr. Speaker:
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0009|
|
0010| Your JUDICIARY COMMITTEE, to whom has been referred
|
0011|
|
0012| HOUSE BILL 717
|
0013|
|
0014| has had it under consideration and reports same with
|
0015| recommendation that it DO NOT PASS, but that
|
0016|
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0017| HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR HOUSE
|
0018| BILL 717
|
0019|
|
0020| DO PASS, amended as follows:
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0021|
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0022| 1. On page 10, line 10, strike the word "Subsection" and
|
0023| insert in lieu thereof "Subsections A or".
|
0024|
|
0025| 2. On page 17, line 21 strike the second occurrence of
|
0001| the word "or".
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0002|
|
0003| 3. On page 17, line 22, strike the word "death" and after
|
0004| the first occurrence of the word "or" insert "great bodily harm
|
0005| or death to".
|
0006|
|
0007| Respectfully submitted,
|
0008|
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0009|
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0010|
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0011|
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0012|
|
0013| Thomas P. Foy, Chairman
|
0014|
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0015|
|
0016| Adopted Not Adopted
|
0017|
|
0018| (Chief Clerk) (Chief Clerk)
|
0019|
|
0020| Date
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0021|
|
0022| The roll call vote was 10 For 0 Against
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0023| Yes: 10
|
0024| Excused: Luna, Rios, Sanchez
|
0025| Absent: None
|
0001|
|
0002|
|
0003|
|
0004| G:\BILLTEXT\BILLW_97\H0717 HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
|
0005| HOUSE BILL 717
|
0006| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
|
0007|
|
0008|
|
0009|
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0010|
|
0011|
|
0012|
|
0013|
|
0014| AN ACT
|
0015| RELATING TO CHILDREN; CHANGING PROCEDURES AND TIME FRAMES FOR
|
0016| HEARINGS HELD PURSUANT TO THE ABUSE AND NEGLECT ACT; AMENDING
|
0017| AND ENACTING SECTIONS OF THE ABUSE AND NEGLECT ACT.
|
0018|
|
0019| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
|
0020| Section 1. Section 32A-4-19 NMSA 1978 (being Laws 1993,
|
0021| Chapter 77, Section 113) is amended to read:
|
0022| "32A-4-19. ADJUDICATORY HEARINGS--TIME LIMITATIONS.--
|
0023| A. The adjudicatory hearing in a neglect or abuse
|
0024| proceeding shall be commenced within [ninety] sixty days
|
0025| after the latest of the following dates:
|
0001| (1) the date that the petition is served on
|
0002| the respondent;
|
0003| (2) if the trial court orders a mistrial or a
|
0004| new trial, the date that the order is filed; or
|
0005| (3) in the event of an appeal, the date that
|
0006| the mandate or order is filed in the district court disposing
|
0007| of the appeal.
|
0008| B. Prior to the adjudicatory hearing, all parties
|
0009| to the hearing shall attend a mandatory meeting and attempt to
|
0010| settle issues attendant to the adjudicatory hearing and develop
|
0011| a proposed treatment plan that serves the child's best
|
0012| interest.
|
0013| [B.] C. The children's court attorney shall
|
0014| represent the state at the adjudicatory hearing.
|
0015| [C.] D. When the adjudicatory hearing on any
|
0016| petition is not begun within the time period specified in
|
0017| Subsection A of this section or within the period of any
|
0018| extension granted, the petition shall be dismissed with
|
0019| prejudice."
|
0020| Section 2. Section 32A-4-20 NMSA 1978 (being Laws 1993,
|
0021| Chapter 77, Section 114) is amended to read:
|
0022| "32A-4-20. CONDUCT OF HEARINGS--FINDINGS--DISMISSAL--
|
0023| DISPOSITIONAL MATTERS--PENALTY.--
|
0024| A. The proceedings shall be recorded by
|
0025| stenographic notes or by electronic, mechanical or other
|
0001| appropriate means.
|
0002| B. All abuse and neglect hearings shall be closed
|
0003| to the general public.
|
0004| C. Only the parties, their counsel, witnesses and
|
0005| other persons approved by the court may be present at a closed
|
0006| hearing. Those other persons the court finds to have a proper
|
0007| interest in the case or in the work of the court may be
|
0008| admitted by the court to closed hearings on the condition that
|
0009| they refrain from divulging any information that would identify
|
0010| the child or family involved in the proceedings.
|
0011| D. Accredited representatives of the news media shall
|
0012| be allowed to be present at closed hearings, subject to the
|
0013| condition that they refrain from divulging information that would
|
0014| identify any child involved in the proceedings or the parent,
|
0015| guardian or custodian of that child and subject to enabling
|
0016| regulations as the court finds necessary for the maintenance of
|
0017| order and decorum and for the furtherance of the purposes of the
|
0018| Children's Code.
|
0019| E. If the court finds that it is in the best interest
|
0020| of the child, the child may be excluded from a neglect or an abuse
|
0021| hearing. Under the same conditions, a child may be excluded by
|
0022| the court during a hearing on dispositional issues.
|
0023| F. Those persons or parties granted admission to a
|
0024| closed hearing who intentionally divulge information in violation
|
0025| of this section are guilty of a petty misdemeanor.
|
0001| G. The court shall determine if the allegations of the
|
0002| petition are admitted or denied. If the allegations are denied,
|
0003| the court shall proceed to hear evidence on the petition. The
|
0004| court after hearing all of the evidence bearing on the allegations
|
0005| of neglect or abuse shall make and record its findings on whether
|
0006| the child is a neglected child, an abused child or both.
|
0007| H. If the court finds on the basis of a valid
|
0008| admission of the allegations of the petition or on the basis of
|
0009| clear and convincing evidence, competent, material and relevant in
|
0010| nature, that the child is neglected or abused, the court may
|
0011| proceed immediately or at a postponed hearing to make disposition
|
0012| of the case. If the court does not find that the child is
|
0013| neglected or abused, the court shall dismiss the petition and may
|
0014| refer the family to the department for appropriate services.
|
0015| I. In that part of the hearings held under the
|
0016| Children's Code on dispositional issues, all relevant and material
|
0017| evidence helpful in determining the questions presented, including
|
0018| oral and written reports, may be received by the court and may be
|
0019| relied upon to the extent of its probative value even though not
|
0020| competent had it been offered during the part of the hearings on
|
0021| adjudicatory issues.
|
0022| J. On the court's motion or that of a party, the court
|
0023| may continue the hearing on the petition for a [reasonable time]
|
0024| period not to exceed thirty days to receive reports and other
|
0025| evidence in connection with disposition. The court shall continue
|
0001| the hearing pending the receipt of the predisposition study and
|
0002| report if that document has not been prepared and received.
|
0003| During any continuances under this subsection, the court shall
|
0004| make an appropriate order for legal custody."
|
0005| Section 3. Section 32A-4-22 NMSA 1978 (being Laws 1993,
|
0006| Chapter 77, Section 116) is amended to read:
|
0007| "32A-4-22. DISPOSITION OF ADJUDICATED ABUSED OR NEGLECTED
|
0008| CHILD.--
|
0009| A. If not held in conjunction with the adjudicatory
|
0010| hearing, the dispositional hearing shall be commenced within
|
0011| thirty days after the conclusion of the adjudicatory hearing. At
|
0012| the conclusion of the dispositional hearing, the court shall make
|
0013| and include in the dispositional judgment its findings on the
|
0014| following:
|
0015| (1) the interaction and interrelationship of the
|
0016| child with his parent, siblings and any other person who may
|
0017| significantly affect the child's best interest;
|
0018| (2) the child's adjustment to his home, school
|
0019| and community;
|
0020| (3) the mental and physical health of all
|
0021| individuals involved;
|
0022| (4) the wishes of the child as to his custodian;
|
0023| (5) the wishes of the child's parent, guardian
|
0024| or custodian as to the child's custody;
|
0025| (6) whether there exists a relative of the child
|
0001| or other individual who, after study by the department, is found
|
0002| to be qualified to receive and care for the child;
|
0003| (7) the availability of services recommended in
|
0004| the treatment plan prepared as a part of the predisposition study
|
0005| in accordance with the provisions of Section [32-4-19] 32A-4-
|
0006| 21 NMSA 1978;
|
0007| (8) the ability of the parent to care for the
|
0008| child in the home so that no harm will result to the child;
|
0009| (9) whether reasonable efforts were [utilized]
|
0010| used by the department to prevent removal of the child from the
|
0011| home prior to placement in substitute care and whether reasonable
|
0012| efforts were [utilized] used to attempt reunification of the
|
0013| child with the natural parent; and
|
0014| (10) if the child is an Indian child, whether
|
0015| the placement preferences set forth in the federal Indian Child
|
0016| Welfare Act of 1978 or the placement preferences of the child's
|
0017| Indian tribe have been followed and whether the Indian child's
|
0018| treatment plan provides for maintaining the Indian child's
|
0019| cultural ties. When placement preferences have not been followed,
|
0020| good cause for noncompliance shall be clearly stated and
|
0021| supported.
|
0022| B. If a child is found to be neglected or abused, the
|
0023| court may enter its judgment making any of the following
|
0024| dispositions to protect the welfare of the child:
|
0025| (1) permit the child to remain with his parent,
|
0001| guardian or custodian, subject to those conditions and limitations
|
0002| the court may prescribe;
|
0003| (2) place the child under protective supervision
|
0004| of the department; or
|
0005| (3) transfer legal custody of the child to any
|
0006| of the following:
|
0007| (a) [to] the noncustodial parent, if it
|
0008| is found to be in the child's best interest;
|
0009| (b) an agency responsible for the care of
|
0010| neglected or abused children; or
|
0011| (c) a child-placement agency willing and
|
0012| able to assume responsibility for the education, care and
|
0013| maintenance of the child and licensed or otherwise authorized by
|
0014| law to receive and provide care for the child.
|
0015| C. If a child is found to be neglected or abused, in
|
0016| its dispositional judgment the court shall also order the
|
0017| department to implement and the child's parent, guardian or
|
0018| custodian to cooperate with any treatment plan approved by the
|
0019| court.
|
0020| D. Any parent, guardian or custodian of a child who is
|
0021| placed in the legal custody of the department or other person
|
0022| pursuant to Subsection B of this section shall have reasonable
|
0023| rights of visitation with the child as determined by the court,
|
0024| unless the court finds that the best interests of the child
|
0025| preclude any visitation.
|
0001| E. The court may order reasonable visitation between a
|
0002| child placed in the custody of the department and the child's
|
0003| siblings or any other person who may significantly affect the
|
0004| child's best interest, if the court finds the visitation to be in
|
0005| the child's best interest.
|
0006| F. Unless a child found to be neglected or abused is
|
0007| also found to be delinquent, the child shall not be confined in an
|
0008| institution established for the long-term care and rehabilitation
|
0009| of delinquent children.
|
0010| G. When the court vests legal custody in an agency,
|
0011| institution or department, the court shall transmit with the
|
0012| dispositional judgment copies of the clinical reports, the
|
0013| predisposition study and report and any other information it has
|
0014| pertinent to the care and treatment of the child.
|
0015| H. Prior to any child being placed in the custody or
|
0016| protective supervision of the department, the department shall be
|
0017| provided with reasonable oral or written notification and an
|
0018| opportunity to be heard. At any hearing held pursuant to this
|
0019| subsection, the department may appear as a party.
|
0020| I. When a child is placed in the custody of the
|
0021| department, the department shall investigate whether the child is
|
0022| eligible for enrollment as a member of an Indian tribe and, if so,
|
0023| the department shall pursue the enrollment on the child's behalf."
|
0024| Section 4. Section 32A-4-25 NMSA 1978 (being Laws 1993,
|
0025| Chapter 77, Section 119, as amended) is amended to read:
|
0001| "32A-4-25. PERIODIC REVIEW OF DISPOSITIONAL JUDGMENTS.--
|
0002| A. [Within six months of any original dispositional
|
0003| order and within six months of any subsequent continuation of the
|
0004| order, the department shall petition the court for a review of the
|
0005| disposition of an adjudicated neglected or abused child.] The
|
0006| initial judicial review shall be held within sixty days of the
|
0007| disposition. At the initial review, the parties shall demonstrate
|
0008| to the court efforts made to implement the treatment plan approved
|
0009| by the court in its dispositional order. The court shall
|
0010| determine the extent to which the treatment plan has been
|
0011| implemented and make supplemental orders as necessary to assure
|
0012| compliance with the treatment plan and the safety of the child.
|
0013| Prior to the initial judicial review, the department shall submit
|
0014| a copy of the adjudicatory order, the dispositional order and
|
0015| notice of the initial judicial review to the local substitute care
|
0016| review board for that judicial district created under the Citizen
|
0017| Substitute Care Review Act. A representative of the local
|
0018| substitute care review board shall be permitted to attend and
|
0019| comment to the court.
|
0020| B. Subsequent periodic reviews of dispositional orders
|
0021| shall be held within six months of the conclusion of the
|
0022| permanency hearing or, if a motion has been filed for termination
|
0023| of parental rights or permanent guardianship, within six months of
|
0024| the decision on that motion and every six months thereafter.
|
0025| Prior to the review, the department shall submit a progress report
|
0001| to the local substitute care review board for that judicial
|
0002| district created under the Citizen Substitute Care Review Act.
|
0003| Prior to any judicial review by the court pursuant to this
|
0004| section, the local substitute care review board may review the
|
0005| dispositional order or the continuation of the order and the
|
0006| department's progress report and report its findings and
|
0007| recommendations to the court. The review may be carried out by
|
0008| either of the following:
|
0009| (1) a judicial review hearing conducted by the
|
0010| court; or
|
0011| (2) a judicial review hearing conducted by a
|
0012| special master appointed by the court; provided, however, that the
|
0013| court approve any findings made by the special master.
|
0014| [B.] C. The children's court attorney shall give
|
0015| notice to all parties, the child's guardian ad litem, the child's
|
0016| CASA, a contractor administering the local substitute care review
|
0017| board and the child's foster parent or substitute care provider of
|
0018| the time, place and purpose of any judicial review hearing held
|
0019| pursuant to Subsection [A] B of this section.
|
0020| [C.] D. At any judicial review hearing held
|
0021| pursuant to Subsection [A] B of this section, the department,
|
0022| the child's guardian ad litem and all parties given notice under
|
0023| Subsection [B] C of this section shall have the opportunity to
|
0024| present evidence and to cross-examine witnesses. At the hearing,
|
0025| the department shall show that it has made reasonable effort to
|
0001| implement any treatment plan approved by the court in its
|
0002| dispositional order and shall present a treatment plan consistent
|
0003| with the purposes of the Children's Code for any period of
|
0004| extension of the dispositional order. The respondent shall
|
0005| demonstrate to the court that efforts to comply with the treatment
|
0006| plan approved by the court in its dispositional order and efforts
|
0007| to maintain contact with the child were diligent and made in good
|
0008| faith. The court shall determine the extent of compliance with
|
0009| the treatment plan and whether progress is being made toward
|
0010| establishing a stable and permanent placement for the child.
|
0011| [D.] E. The Rules of Evidence shall not apply to
|
0012| hearings held pursuant to this section. The court may admit
|
0013| testimony by any person given notice of the hearing who has
|
0014| information about the status of the child or the status of the
|
0015| treatment plan.
|
0016| [E.] F. At the conclusion of any hearing held
|
0017| pursuant to this section, the court shall make findings of fact
|
0018| and conclusions of law.
|
0019| [F.] G. When the child is an Indian child, the
|
0020| court shall determine during review of a dispositional order
|
0021| whether the placement preferences set forth in the federal Indian
|
0022| Child Welfare Act of 1978 or the placement preferences of the
|
0023| child's Indian tribe were followed and whether the child's
|
0024| treatment plan provides for maintaining the child's cultural ties.
|
0025| When placement preferences have not been followed, good cause for
|
0001| noncompliance shall be clearly stated and supported.
|
0002| [G.] H. Based on its findings at a judicial
|
0003| review hearing held pursuant to Subsection B of this section, the
|
0004| court shall order one of the following dispositions:
|
0005| (1) dismiss the action and return the child to
|
0006| his parent without supervision if the court finds that conditions
|
0007| in the home that led to abuse have been corrected and it is now
|
0008| safe for the return of the abused child;
|
0009| (2) permit the child to remain with his parent,
|
0010| guardian or custodian subject to those conditions and limitations
|
0011| the court may prescribe, including protective supervision of the
|
0012| child by the department;
|
0013| (3) return the child to his parent and place the
|
0014| child under the protective supervision of the department;
|
0015| (4) transfer or continue legal custody of the
|
0016| child to:
|
0017| (a) the noncustodial parent, if that is
|
0018| found to be in the child's best interests;
|
0019| (b) a relative or other individual who,
|
0020| after study by the department or other agency designated by the
|
0021| court, is found by the court to be qualified to receive and care
|
0022| for the child and is appointed as a permanent guardian of the
|
0023| child; or
|
0024| (c) the department, subject to the
|
0025| provisions of Paragraph (6) of this subsection;
|
0001| (5) continue the child in the legal custody of
|
0002| the department with or without any required parental involvement
|
0003| in a treatment plan;
|
0004| (6) make additional orders regarding the
|
0005| treatment plan or placement of the child to protect the child's
|
0006| best interests if the court determines the department has failed
|
0007| in implementing any material provision of the treatment plan or
|
0008| abused its discretion in the placement or proposed placement of
|
0009| the child; or
|
0010| (7) if during a judicial review the court finds
|
0011| that the child's parent, guardian or custodian has not complied
|
0012| with the court-ordered treatment plan, the court may order:
|
0013| (a) the child's parent, guardian or
|
0014| custodian to show cause why he should not be held in contempt of
|
0015| court; or
|
0016| (b) a hearing on the merits of terminating
|
0017| parental rights.
|
0018| [H.] I. Dispositional orders entered pursuant to
|
0019| this section shall remain in force for a period of six months,
|
0020| except for orders that provide for transfer of the child to the
|
0021| child's noncustodial parent or to a permanent guardian.
|
0022| [I.] J. The report of the local substitute care
|
0023| review board submitted to the court pursuant to Subsection [A]
|
0024| B of this section shall become a part of the child's permanent
|
0025| court record."
|
0001| Section 5. A new section of the Abuse and Neglect Act is
|
0002| enacted to read as follows:
|
0003| "[NEW MATERIAL] PERMANENCY HEARINGS--REBUTTABLE
|
0004| PRESUMPTIONS.--
|
0005| A. A permanency hearing shall be commenced within six
|
0006| months of the initial judicial review of the child's dispositional
|
0007| order. Prior to the initial permanency hearing, all parties to
|
0008| the hearing shall attend a mandatory meeting and attempt to settle
|
0009| issues attendant to the permanency hearing and develop a proposed
|
0010| treatment plan that serves the child's best interest. Prior to
|
0011| the initial permanency hearing, the department shall submit a
|
0012| progress report regarding the child to the local substitute care
|
0013| review board for that judicial district. The local substitute
|
0014| care review board may review the child's dispositional order, any
|
0015| continuation of that order and the department's progress report
|
0016| and report its findings and recommendations to the court.
|
0017| B. During a permanency hearing, there shall be a
|
0018| rebuttable presumption that the child's best interest will be
|
0019| served by returning the child to his parent, guardian or
|
0020| custodian. At the hearing, all parties shall have the opportunity
|
0021| to present evidence and to cross-examine witnesses. At the
|
0022| conclusion of the permanency hearing, the court shall determine if
|
0023| sufficient evidence was presented to rebut the presumption.
|
0024| C. If insufficient evidence is presented to rebut, by
|
0025| a preponderance of the evidence, the presumption set forth in
|
0001| Subsection B of this section, the court shall order one of the
|
0002| following dispositions:
|
0003| (1) dismiss the case and return the child to his
|
0004| parent, guardian or custodian; or
|
0005| (2) return the child to his parent, guardian or
|
0006| custodian, subject to those conditions and limitations the court
|
0007| may prescribe, including protective supervision of the child by
|
0008| the department and continuation of the treatment plan for not more
|
0009| than six months.
|
0010| D. If sufficient evidence is presented to rebut, by a
|
0011| preponderance of the evidence, the presumption set forth in
|
0012| Subsection B of this section, the court shall order that the child
|
0013| remain in the legal custody of the department and make additional
|
0014| orders regarding the treatment plan. Within three months of a
|
0015| permanency hearing order issued pursuant to this subsection, if a
|
0016| motion to terminate parental rights or appoint a permanent
|
0017| guardian has not been filed or if the child's permanency plan has
|
0018| not been formally changed to provide for emancipation of the
|
0019| child, a subsequent permanency hearing shall be commenced.
|
0020| E. During a subsequent permanency hearing, there shall
|
0021| be a rebuttable presumption that the child's best interest will be
|
0022| served by changing the child's permanency plan to provide for
|
0023| adoption of the child, emancipation of the child, permanent
|
0024| guardianship for the child or long-term foster care for the child.
|
0025| At the hearing, all parties shall have the opportunity to present
|
0001| evidence and cross-examine witnesses. At the conclusion of the
|
0002| hearing, the court shall determine if sufficient evidence was
|
0003| presented to rebut the presumption.
|
0004| F. If insufficient evidence is presented to rebut, by
|
0005| a preponderance of the evidence, the presumption set forth in
|
0006| Subsection E of this section, the court shall order:
|
0007| (1) the department to change the child's
|
0008| permanency plan to provide for adoption of the child, emancipation
|
0009| of the child, permanent guardianship for the child or long-term
|
0010| foster care for the child; and
|
0011| (2) that additional efforts to reunite the child
|
0012| and his parent shall not be attempted.
|
0013| G. If sufficient evidence is presented to rebut, by a
|
0014| preponderance of the evidence, the presumption set forth in
|
0015| Subsection E of this section, the court shall order one of the
|
0016| following dispositions:
|
0017| (1) dismiss the case and return the child to his
|
0018| parent, guardian or custodian; or
|
0019| (2) return the child to his parent, guardian or
|
0020| custodian, subject to those conditions and limitations the court
|
0021| may prescribe, including protective supervision of the child by
|
0022| the department and continuation of the treatment plan for not more
|
0023| than six months.
|
0024| H. The children's court attorney shall give notice to
|
0025| all parties, the child's guardian ad litem, the child's CASA, a
|
0001| contractor administering the local substitute care review board
|
0002| and the child's foster parent or substitute care provider of the
|
0003| time, place and purpose of any permanency hearing held pursuant to
|
0004| this section.
|
0005| I. The Rules of Evidence shall not apply to permanency
|
0006| hearings. The court may admit testimony by any person given
|
0007| notice of the permanency hearing who has information about the
|
0008| status of the child or the status of the treatment plan. All
|
0009| testimony shall be subject to cross-examination."
|
0010| Section 6. Section 32A-4-28 NMSA 1978 (being Laws 1993,
|
0011| Chapter 77, Section 122, as amended) is amended to read:
|
0012| "32A-4-28. TERMINATION OF PARENTAL RIGHTS--ADOPTION
|
0013| DECREE.--
|
0014| A. In proceedings to terminate parental rights, the
|
0015| court shall give primary consideration to the physical, mental and
|
0016| emotional welfare and needs of the child, including the
|
0017| likelihood of the child being adopted if parental rights are
|
0018| terminated.
|
0019| B. The court shall terminate parental rights with
|
0020| respect to a child when:
|
0021| (1) there has been an abandonment of the child
|
0022| by his parents;
|
0023| (2) the child has been a neglected or abused
|
0024| child as defined in the Abuse and Neglect Act and the court finds
|
0025| that the conditions and causes of the neglect and abuse are
|
0001| unlikely to change in the foreseeable future despite reasonable
|
0002| efforts by the department or other appropriate agency to assist
|
0003| the parent in adjusting the conditions that render the parent
|
0004| unable to properly care for the child. [provided] The court may
|
0005| find in some cases that efforts by the department or another
|
0006| agency [would be] are unnecessary, when there is a clear
|
0007| showing that the efforts would be futile or when a parent has
|
0008| caused great bodily harm or death to the child or the child's
|
0009| sibling; or
|
0010| (3) the child has been placed in the care of
|
0011| others, including care by other relatives, either by a court order
|
0012| or otherwise and the following conditions exist:
|
0013| (a) the child has lived in the home of
|
0014| others for an extended period of time;
|
0015| (b) the parent-child relationship has
|
0016| disintegrated;
|
0017| (c) a psychological parent-child
|
0018| relationship has developed between the substitute family and the
|
0019| child;
|
0020| (d) if the court deems the child of
|
0021| sufficient capacity to express a preference, the child no longer
|
0022| prefers to live with the natural parent;
|
0023| (e) the substitute family desires to adopt
|
0024| the child; and
|
0025| (f) a presumption of abandonment created by
|
0001| the conditions described in Subparagraphs (a) through (e) of this
|
0002| paragraph has not been rebutted.
|
0003| C. A finding by the court that all of the conditions
|
0004| set forth in Subparagraphs (a) through [(e)] (f) of Paragraph
|
0005| (3) of Subsection B of this section exist shall create a
|
0006| rebuttable presumption of abandonment.
|
0007| D. The termination of parental rights involving a
|
0008| child subject to the federal Indian Child Welfare Act of 1978
|
0009| shall comply with the requirements of that act.
|
0010| E. [When] If the court finds that parental rights
|
0011| should be terminated; that the requirements for the adoption of a
|
0012| child have been satisfied; that the prospective adoptive parent is
|
0013| a party to the action; and that [the] good cause exists to waive
|
0014| the filing of a separate petition for adoption, the court may
|
0015| proceed to grant adoption of the child, absent an appeal of the
|
0016| termination of parental rights. The court shall not waive any
|
0017| time requirements set forth in the Adoption Act, unless the
|
0018| termination of parental rights occurred pursuant to the provisions
|
0019| of Paragraph (3) of Subsection B of this section. The court may
|
0020| enter a decree of adoption only after finding that the party
|
0021| seeking to adopt the child has satisfied all of the requirements
|
0022| set forth in the Adoption Act. Unless otherwise stipulated by all
|
0023| parties, an adoption decree shall take effect sixty days after the
|
0024| termination of parental rights, to allow the department sufficient
|
0025| time to provide counseling for the child and otherwise prepare the
|
0001| child for the adoption. The adoption decree shall conform to the
|
0002| requirements of the Adoption Act and shall have the same force and
|
0003| effect as other adoption decrees entered pursuant to that act.
|
0004| The court clerk shall assign an adoption case number to the
|
0005| adoption decree."
|
0006| Section 7. Section 32A-4-29 NMSA 1978 (being Laws 1993,
|
0007| Chapter 77, Section 123) is amended to read:
|
0008| "32A-4-29. TERMINATION PROCEDURE.--
|
0009| A. A motion to terminate parental rights may be filed
|
0010| at any stage of the abuse or neglect proceeding. The proceeding
|
0011| may be initiated by any of the following:
|
0012| (1) the department;
|
0013| (2) a licensed child placement agency; or
|
0014| (3) any other person having a legitimate
|
0015| interest in the matter, including the child's guardian ad litem, a
|
0016| petitioner for adoption, a foster parent or a relative of the
|
0017| child.
|
0018| B. The motion for termination of parental rights shall
|
0019| be signed, verified by the moving party and filed with the court.
|
0020| The motion shall set forth:
|
0021| (1) the date, place of birth and marital status
|
0022| of the child, if known;
|
0023| (2) the grounds for termination and the facts
|
0024| and circumstances supporting the grounds for termination;
|
0025| (3) the names and addresses of the persons or
|
0001| authorized agency or agency officer to whom custody might be
|
0002| transferred;
|
0003| (4) whether the child resides or has resided
|
0004| with a foster parent who desires to adopt this child;
|
0005| (5) whether the motion is in contemplation of
|
0006| adoption;
|
0007| (6) the relationship or legitimate interest of
|
0008| the moving party to the child; and
|
0009| (7) whether the child is subject to the federal
|
0010| Indian Child Welfare Act of 1978 and, if so:
|
0011| (a) the tribal affiliations of the child's
|
0012| parents;
|
0013| (b) the specific actions taken by the
|
0014| moving party to notify the parents' [tribe] tribes and the
|
0015| results of the contacts, including the names, addresses, titles
|
0016| and telephone numbers of the persons contacted. Copies of any
|
0017| correspondence with the tribes shall be attached as exhibits to
|
0018| the petition; and
|
0019| (c) what specific efforts were made to
|
0020| comply with the placement preferences set forth in the federal
|
0021| Indian Child Welfare Act of 1978 or the placement preferences of
|
0022| the appropriate Indian tribes.
|
0023| C. A parent who has not previously been a party to the
|
0024| proceeding shall be named in the motion and shall become a party
|
0025| to the proceeding.
|
0001| D. Notice of the filing of the motion, accompanied by
|
0002| a copy of the motion, shall be served by the moving party on the
|
0003| parents of the child, any parent who has not previously been made
|
0004| a party to the proceeding, foster parents with whom the child is
|
0005| residing, foster parents with whom the child has resided for six
|
0006| months within the previous twelve months, the custodian of the
|
0007| child, the department, any person appointed to represent any
|
0008| party, including the child's guardian ad litem, and any other
|
0009| person the court orders. Service shall be in accordance with the
|
0010| Rules of Civil Procedure for the District Courts for the service
|
0011| of process in a civil action in this state, except that foster
|
0012| parents and attorneys of record in this proceeding may be served
|
0013| by certified mail. The notice shall state specifically that the
|
0014| person served [must] shall file a written response to the
|
0015| motion within twenty days if the person intends to contest the
|
0016| termination. In any case involving a child subject to the federal
|
0017| Indian Child Welfare Act of 1978, notice shall also be served upon
|
0018| the tribes of the child's parents and upon any "Indian custodian"
|
0019| as that term is defined in 25 U.S.C. Section 1903(6).
|
0020| E. If the identity or whereabouts of a person entitled
|
0021| to service are unknown, the moving party shall file a motion for
|
0022| an order granting service by publication supported by the
|
0023| affidavit of the moving party or his agent or attorney detailing
|
0024| the efforts made to locate the person entitled to service. Upon
|
0025| being satisfied that reasonable efforts to locate the person
|
0001| entitled to service have been made and that information as to the
|
0002| identity or whereabouts of the person is still insufficient to
|
0003| effect service in accordance with the Rules of Civil Procedure for
|
0004| the District Courts, the court shall order service by publication
|
0005| pursuant to the Rules of Civil Procedure for the District Courts.
|
0006| F. After a motion for the termination of parental
|
0007| rights is filed, the parent shall be advised of the right to
|
0008| counsel, unless the parent is already represented by counsel.
|
0009| Counsel shall be appointed, upon request, for any parent who is
|
0010| unable to obtain counsel due to financial reasons or, if in the
|
0011| court's discretion, the interests of justice require appointment
|
0012| of counsel.
|
0013| G. The court shall assure that a guardian ad litem
|
0014| represents the child in all proceedings for the termination of
|
0015| parental rights.
|
0016| H. When a motion to terminate parental rights is
|
0017| filed, the moving party shall request a hearing on the motion.
|
0018| The hearing date shall be at least thirty days, but no more than
|
0019| sixty days, after service is effected upon the parties entitled
|
0020| to service under this section.
|
0021| I. In any action for the termination of parental
|
0022| rights brought by a party other than the department and involving
|
0023| a child in the custody of the department, the department may:
|
0024| (1) litigate a motion for the termination of
|
0025| parental rights that was initially filed by another party; or
|
0001| (2) move that the motion for the termination of
|
0002| parental rights be found premature and denied.
|
0003| J. The grounds for any attempted termination shall be
|
0004| proved by clear and convincing evidence. In any proceeding
|
0005| involving a child subject to the federal Indian Child Welfare Act
|
0006| of 1978, the grounds for any attempted termination shall be proved
|
0007| beyond a reasonable doubt and shall meet the requirements set
|
0008| forth in 25 U.S.C. Section 1912(f).
|
0009| K. When the court terminates parental rights, it shall
|
0010| appoint a custodian for the child and fix responsibility for the
|
0011| child's support.
|
0012| L. In any termination proceeding involving a child
|
0013| subject to the federal Indian Child Welfare Act of 1978, the court
|
0014| shall in any termination order make specific findings that the
|
0015| requirements of that act have been met.
|
0016| M. A judgment of the court terminating parental rights
|
0017| divests the parent of all legal rights and privileges and
|
0018| dispenses with both the necessity for the consent to or receipt of
|
0019| notice of any subsequent adoption proceeding concerning the child.
|
0020| A judgment of the court terminating parental rights shall not
|
0021| affect the child's rights of inheritance from and through the
|
0022| child's biological parents."
|
0023| Section 8. EFFECTIVE DATE.--The effective date of the
|
0024| provisions of this act is July 1, 1997.
|
0025|
|
0001|
|
0002| FORTY-THIRD LEGISLATURE HJC/HB 717/a
|
0003| FIRST SESSION, 1997
|
0004|
|
0005|
|
0006| March 8, 1997
|
0007|
|
0008| Mr. President:
|
0009|
|
0010| Your JUDICIARY COMMITTEE, to whom has been referred
|
0011|
|
0012|
|
0013| HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
|
0014| HOUSE BILL 717, as amended
|
0015|
|
0016| has had it under consideration and reports same with recommendation
|
0017| that it DO PASS, amended as follows:
|
0018|
|
0019| 1. On page 1, line 11, after the semicolon insert "CLARIFYING
|
0020| DUTIES TO REPORT ALLEGED ABUSE OR NEGLECT OF A CHILD;".
|
0021|
|
0022| 2. On page 1, line 12, after the semicolon insert "CLARIFYING
|
0023| ADOPTION PROCEDURES; CLARIFYING THE DUTIES OF THE QUALITY ASSURANCE
|
0024| OFFICE;".
|
0025|
|
0001| 3. On page 1, between lines 15 and 16, insert the following
|
0002| new sections:
|
0003|
|
0004| "Section 1. Section 32A-4-2 NMSA 1978 (being Laws 1993,
|
0005| Chapter 77, Section 96) is amended to read:
|
0006|
|
0007| "32A-4-2. DEFINITIONS.--As used in the Abuse and Neglect Act:
|
0008|
|
0009| A. "abandonment" includes, but is not limited to,
|
0010| instances when the parent, without justifiable cause:
|
0011|
|
0012| (1) left the child without provision for the child's
|
0013| identification for a period of fourteen days; or
|
0014|
|
0015| (2) left the child with others, including the other
|
0016| parent or an agency, without provision for support and without
|
0017| communication for a period of:
|
0018|
|
0019| (a) three months if the child was under six years
|
0020| of age at the commencement of the three-month period; or
|
0021|
|
0022| (b) six months if the child was over six years of
|
0023| age at the commencement of the six-month period;
|
0024|
|
0025| B. "abused child" means a child:
|
0001|
|
0002| (1) who is at risk of suffering serious harm;
|
0003|
|
0004| [(1)] (2) who has suffered physical abuse,
|
0005| emotional abuse or psychological abuse inflicted by the child's
|
0006| parent, guardian or custodian;
|
0007|
|
0008| [(2)] (3) who has suffered sexual abuse or sexual
|
0009| exploitation inflicted by the child's parent, guardian or custodian;
|
0010|
|
0011| [(3)] (4) whose parent, guardian or custodian has
|
0012| knowingly, intentionally or negligently placed the child in a
|
0013| situation that may endanger the child's life or health; or
|
0014|
|
0015| [(4)] (5) whose parent, guardian or custodian has
|
0016| knowingly or intentionally tortured, cruelly confined or cruelly
|
0017| punished the child;
|
0018|
|
0019| C. "neglected child" means a child:
|
0020|
|
0021| (1) who has been abandoned by the child's parent,
|
0022| guardian or custodian;
|
0023|
|
0024| (2) who is without proper parental care and control
|
0025| or subsistence, education, medical or other care or control
|
0001| necessary for the child's well-being because of the faults or habits
|
0002| of the child's parent, guardian or custodian or the neglect or
|
0003| refusal of the parent, guardian or custodian, when able to do so, to
|
0004| provide them;
|
0005|
|
0006| (3) who has been physically or sexually abused, when
|
0007| the child's parent, guardian or custodian knew or should have known
|
0008| of the abuse and failed to take reasonable steps to protect the
|
0009| child from further harm;
|
0010|
|
0011| (4) whose parent, guardian or custodian is unable to
|
0012| discharge his responsibilities to and for the child because of
|
0013| incarceration, hospitalization or other physical or mental disorder
|
0014| or incapacity; or
|
0015|
|
0016| (5) who has been placed for care or adoption in
|
0017| violation of the law; provided that nothing in the Children's Code
|
0018| shall be construed to imply that a child who is being provided with
|
0019| treatment by spiritual means alone through prayer, in accordance
|
0020| with the tenets and practices of a recognized church or religious
|
0021| denomination, by a duly accredited practitioner thereof is for that
|
0022| reason alone a neglected child within the meaning of the Children's
|
0023| Code; and further provided that no child shall be denied the
|
0024| protection afforded to all children under the Children's Code;
|
0025|
|
0001| D. "physical abuse" includes, but is not limited to, any
|
0002| case in which the child exhibits evidence of skin bruising,
|
0003| bleeding, malnutrition, failure to thrive, burns, fracture of any
|
0004| bone, subdural hematoma, soft tissue swelling or death and:
|
0005|
|
0006| (1) there is not a justifiable explanation for the
|
0007| condition or death;
|
0008|
|
0009| (2) the explanation given for the condition is at
|
0010| variance with the degree or nature of the condition;
|
0011|
|
0012| (3) the explanation given for the death is at
|
0013| variance with the nature of the death; or
|
0014|
|
0015| (4) circumstances indicate that the condition or
|
0016| death may not be the product of an accidental occurrence;
|
0017|
|
0018| E. "sexual abuse" includes, but is not limited to,
|
0019| criminal sexual contact, incest or criminal sexual penetration, as
|
0020| those acts are defined by state law; and
|
0021|
|
0022| F. "sexual exploitation" includes, but is not limited to:
|
0023|
|
0024| (1) allowing, permitting or encouraging a child to
|
0025| engage in prostitution;
|
0001|
|
0002| (2) allowing, permitting, encouraging or engaging a
|
0003| child in obscene or pornographic photographing; or
|
0004|
|
0005| (3) filming or depicting a child for obscene or
|
0006| pornographic commercial purposes, as those acts are defined by state
|
0007| law."
|
0008|
|
0009| Section 2. Section 32A-4-3 NMSA 1978 (being Laws 1993, Chapter
|
0010| 77, Section 97) is amended to read:
|
0011|
|
0012| "32A-4-3. DUTY TO REPORT CHILD ABUSE AND CHILD NEGLECT--
|
0013| RESPONSIBILITY TO INVESTIGATE CHILD ABUSE OR NEGLECT--PENALTY.--
|
0014|
|
0015| A. Every person, including but not limited to a licensed
|
0016| physician, a resident or an intern examining, attending or treating
|
0017| a child, a law enforcement officer, a judge presiding during any
|
0018| proceeding, a registered nurse, a visiting nurse, a schoolteacher or
|
0019| a school official or social worker acting in an official capacity
|
0020| who knows or has a reasonable suspicion that a child is an abused or
|
0021| a neglected child shall report the matter immediately to:
|
0022|
|
0023| (1) a local law enforcement agency;
|
0024|
|
0025| (2) the department office in the county where the
|
0001| child resides; or
|
0002|
|
0003| (3) tribal law enforcement or social services
|
0004| agencies for any Indian child residing in Indian country.
|
0005|
|
0006| B. Any law enforcement agency receiving the report shall
|
0007| immediately transmit the facts of the report and the name, address
|
0008| and phone number of the reporter by telephone to the department
|
0009| office in the county where the child resides and shall transmit the
|
0010| same information in writing within forty-eight hours. Any office of
|
0011| the department receiving a report shall immediately transmit the
|
0012| facts of the report and the name, address and phone number of the
|
0013| reporter by telephone to a local law enforcement agency and shall
|
0014| transmit the same information in writing within forty-eight hours.
|
0015| The written report shall contain the names and addresses of the
|
0016| child and the child's parents, guardian or custodian, the child's
|
0017| age, the nature and extent of the child's injuries, including any
|
0018| evidence of previous injuries, and other information that the maker
|
0019| of the report believes might be helpful in establishing the cause of
|
0020| the injuries and the identity of the person [or persons]
|
0021| responsible for the injuries. The written report shall be submitted
|
0022| upon a standardized form agreed to by the law enforcement agency and
|
0023| the department.
|
0024|
|
0025| C. If an alleged perpetrator of abuse or neglect of a
|
0001| child is not a parent, guardian or custodian of the child or a
|
0002| member of the child's family, a local law enforcement agency is
|
0003| primarily responsible for investigating the case of alleged abuse or
|
0004| neglect.
|
0005|
|
0006| D. If an alleged perpetrator of abuse or neglect of a
|
0007| child is a parent, guardian or custodian of the child or a member of
|
0008| the child's family, the department is primarily responsible for
|
0009| investigating the case of alleged abuse or neglect.
|
0010|
|
0011| [C.] E. The recipient of the report under Subsection A
|
0012| of this section shall take immediate steps to ensure prompt
|
0013| investigation of the report. The investigation shall ensure that
|
0014| immediate steps are taken to protect the health or welfare of the
|
0015| alleged abused or neglected child, as well as that of any other
|
0016| child under the same care who may be in danger of abuse or neglect.
|
0017| A local law enforcement agency is responsible for investigating
|
0018| reports of alleged child abuse or neglect at schools, day care
|
0019| facilities or child care facilities.
|
0020|
|
0021| [D. Upon a determination by the department that any child
|
0022| may have suffered or is in imminent danger of suffering abuse or
|
0023| neglect while in the care or control of or in a child care facility
|
0024| or family day-care home, the department shall immediately notify the
|
0025| parents of the child and the agency responsible for licensing the
|
0001| child care facility or family day-care home. No determination shall
|
0002| be made prior to consultation with the facility.
|
0003|
|
0004| E.] F. If the child alleged to be abused or neglected
|
0005| is in the care or control of or in a facility administratively
|
0006| connected to the department, the report shall be investigated
|
0007| [through the office of the district attorney] by local law
|
0008| enforcement. The investigation shall ensure that immediate steps
|
0009| are taken to protect the health or welfare of the alleged abused
|
0010| or neglected child, as well as that of any other child under the
|
0011| same care who may be in danger of abuse or neglect.
|
0012|
|
0013| [F.] G. A law enforcement agency or the department
|
0014| shall have access to any of the records pertaining to a child abuse
|
0015| or neglect case maintained by any of the persons enumerated in
|
0016| Subsection A of this section, except as otherwise provided in the
|
0017| Abuse and Neglect Act.
|
0018|
|
0019| [G.] H. Any person who violates the provisions of
|
0020| Subsection A of this section is guilty of a misdemeanor and shall be
|
0021| sentenced pursuant to the provisions of Section 31-19-1 NMSA
|
0022| 1978."".
|
0023|
|
0024| 4. Renumber the succeeding sections accordingly.
|
0025|
|
0001| 5. On page 4, between lines 23 and 24, insert the following
|
0002| new section:
|
0003|
|
0004| "Section 3. Section 32A-4-21 NMSA 1978 (being Laws 1993,
|
0005| Chapter 77, Section 115) is amended to read:
|
0006|
|
0007| "32A-4-21. NEGLECT OR ABUSE PREDISPOSITION STUDIES, REPORTS
|
0008| AND EXAMINATIONS.--
|
0009|
|
0010| A. Prior to holding a dispositional hearing, the court
|
0011| shall direct that a predisposition study and report be [made]
|
0012| submitted in writing to the court by the department.
|
0013|
|
0014| B. The predisposition study required pursuant to
|
0015| Subsection A of this section shall contain the following
|
0016| information:
|
0017|
|
0018| (1) a statement of the specific [harm to the child
|
0019| that intervention is designed to alleviate] reasons for
|
0020| intervention by the department or for placing the child in the
|
0021| department's custody and a statement of the parent's ability to care
|
0022| for the child in the parent's home without causing harm to the
|
0023| child;
|
0024|
|
0025| [(2) if removal from or continued residence outside
|
0001| the home is recommended, a statement of the likely harm the child
|
0002| will suffer as a result of removal, including emotional harm
|
0003| resulting from separation from the child's parents; and
|
0004|
|
0005| (3) a treatment plan consisting of:
|
0006|
|
0007| (a) a description of the specific progress needed
|
0008| to be made by both the parent and the child in order to prevent
|
0009| further harm to the child, the reasons why the program is likely to
|
0010| be useful, the availability of any proposed services and the
|
0011| department's overall plan for ensuring that the services will be
|
0012| delivered;
|
0013|
|
0014| (b) if removal from the home or continued
|
0015| residence outside the home is recommended, a description of any
|
0016| previous efforts to work with the parent and the child in the home
|
0017| and the in-home treatment programs that have been considered and
|
0018| rejected;
|
0019|
|
0020| (c) a description of the steps that will be taken
|
0021| to minimize any harm to the child that may result if separation from
|
0022| the child's parent occurs or continues;
|
0023|
|
0024| (d) a description of the behavior that will be
|
0025| expected before a determination is made that supervision of the
|
0001| family or placement is no longer necessary; and
|
0002|
|
0003| (e) if removal from or continued residence
|
0004| outside the home is recommended and the child is sixteen years of
|
0005| age or older, a description of the specific skills the child
|
0006| requires for successful transition into independent living as an
|
0007| adult, what program, educational or otherwise, will provide the
|
0008| skills, the reasons why the program is likely to be useful, the
|
0009| availability of any proposed programs and the department's overall
|
0010| plan for ensuring that the child will be adequately prepared for
|
0011| adulthood]
|
0012|
|
0013| (2) a statement of how an intervention plan is
|
0014| designed to achieve placement of the child in the least restrictive
|
0015| setting available, consistent with the best interests and special
|
0016| needs of the child, including a statement of the likely harm the
|
0017| child may suffer as a result of being removed from the parent's
|
0018| home, including emotional harm that may result due to separation
|
0019| from the child's parents, and a statement of how the intervention
|
0020| plan is designed to place the child in close proximity to the
|
0021| parent's home without causing harm to the child due to separation
|
0022| from his parents, siblings or any other person who may significantly
|
0023| affect the child's best interest;
|
0024|
|
0025| (3) the wishes of the child as to his custodian;
|
0001|
|
0002| (4) whether the child has a family member who,
|
0003| subsequent to study by the department, is determined to be qualified
|
0004| to care for the child;
|
0005|
|
0006| (5) a description of services offered to the child,
|
0007| his family and his foster care family and a summary of reasonable
|
0008| efforts made to prevent removal of the child from his family or
|
0009| reasonable efforts made to reunite the child with his family;
|
0010|
|
0011| (6) a description of the home or facility in which
|
0012| the
|
0013| child is placed and the appropriateness of the child's placement;
|
0014|
|
0015| (7) the results of any diagnostic examination or
|
0016| evaluation ordered at the custody hearing;
|
0017|
|
0018| (8) a statement of the child's medical and
|
0019| educational background;
|
0020|
|
0021| (9) if the child is an Indian child, whether the
|
0022| placement preferences set forth in the federal Indian Child Welfare
|
0023| Act of 1978 or the placement preferences of the child's Indian tribe
|
0024| were followed and whether the child's treatment plan provides for
|
0025| maintaining the child's cultural ties;
|
0001|
|
0002| (10) a treatment plan that sets forth steps to ensure
|
0003| that the child's physical, medical, psychological and educational
|
0004| needs are met and that sets forth services to be provided to the
|
0005| child and his parents to facilitate permanent placement of the child
|
0006| in the parent's home; and
|
0007|
|
0008| (11) for children sixteen years of age and older, a
|
0009| plan for developing the specific skills the child requires for
|
0010| successful transition into independent living as an adult,
|
0011| regardless of whether the child is returned to his parent's home.
|
0012|
|
0013| C. A copy of the predisposition report shall be provided
|
0014| by the department to counsel for all parties five days before the
|
0015| dispositional hearing.
|
0016|
|
0017| D. If the child is an adjudicated abused child, any
|
0018| temporary custody orders shall remain in effect until the court has
|
0019| received and considered the predispositional study at the
|
0020| dispositional hearing."".
|
0021|
|
0022| 6. Renumber the succeeding sections accordingly.
|
0023|
|
0024| 7. On pages 19 through 24, strike Section 7 in its entirety
|
0025| and insert in lieu thereof the following new sections:
|
0001|
|
0002| "Section 7. Section 32A-4-29 NMSA 1978 (being Laws 1993,
|
0003| Chapter 77, Section 123) is amended to read:
|
0004|
|
0005| "32A-4-29. TERMINATION PROCEDURE.--
|
0006|
|
0007| A. A motion to terminate parental rights may be filed at
|
0008| any stage of the abuse or neglect proceeding. The proceeding may be
|
0009| initiated by any of the following:
|
0010|
|
0011| (1) the department;
|
0012|
|
0013| (2) a licensed child placement agency; or
|
0014|
|
0015| (3) any other person having a legitimate interest in
|
0016| the matter, including the child's guardian ad litem, a petitioner
|
0017| for adoption, a foster parent or a relative of the child.
|
0018|
|
0019| B. The motion for termination of parental rights shall be
|
0020| signed, verified by the moving party and filed with the court. The
|
0021| motion shall set forth:
|
0022|
|
0023| (1) the date, place of birth and marital status of
|
0024| the child, if known;
|
0025|
|
0001| (2) the grounds for termination and the facts and
|
0002| circumstances supporting the grounds for termination;
|
0003|
|
0004| (3) the names and addresses of the persons or
|
0005| authorized agency or agency officer to whom custody might be
|
0006| transferred;
|
0007|
|
0008| (4) whether the child resides or has resided with a
|
0009| foster parent who desires to adopt this child;
|
0010|
|
0011| (5) whether the motion is in contemplation of
|
0012| adoption;
|
0013|
|
0014| (6) the relationship or legitimate interest of the
|
0015| moving party to the child; and
|
0016|
|
0017| (7) whether the child is subject to the federal
|
0018| Indian Child Welfare Act of 1978 and, if so:
|
0019|
|
0020| (a) the tribal affiliations of the child's
|
0021| parents;
|
0022|
|
0023| (b) the specific actions taken by the moving
|
0024| party to notify the parents' [tribe] tribes and the results of
|
0025| the contacts, including the names, addresses, titles and telephone
|
0001| numbers of the persons contacted. Copies of any correspondence with
|
0002| the tribes shall be attached as exhibits to the petition; and
|
0003|
|
0004| (c) what specific efforts were made to comply
|
0005| with the placement preferences set forth in the federal Indian Child
|
0006| Welfare Act of 1978 or the placement preferences of the appropriate
|
0007| Indian tribes.
|
0008|
|
0009| C. A parent who has not previously been a party to the
|
0010| proceeding shall be named in the motion and shall become a party to
|
0011| the proceeding, unless the court determines that the parent has not
|
0012| established a protected liberty interest in his relationship with
|
0013| the child.
|
0014|
|
0015| D. Notice of the filing of the motion, accompanied by a
|
0016| copy of the motion, shall be served by the moving party on [the
|
0017| parents of the child, any parent who has not previously been made a
|
0018| party to the proceeding] all other parties, foster parents with
|
0019| whom the child is residing, foster parents with whom the child has
|
0020| resided for six months within the previous twelve months, the
|
0021| custodian of the child, [the department] any person appointed to
|
0022| represent any party [including the child's guardian ad litem] and
|
0023| any other person the court orders. Service shall be in accordance
|
0024| with the Rules of Civil Procedure for the District Courts for the
|
0025| service of [process] motions in a civil action in this state,
|
0001| except that foster parents and attorneys of record in this
|
0002| proceeding [may] shall be served by certified mail. The notice
|
0003| shall state specifically that the person served [must] shall
|
0004| file a written response to the motion within twenty days if the
|
0005| person intends to contest the termination. In any case involving a
|
0006| child subject to the federal Indian Child Welfare Act of 1978,
|
0007| notice shall also be [served upon] sent by certified mail to the
|
0008| tribes of the child's parents and upon any "Indian custodian" as
|
0009| that term is defined in 25 U.S.C. Section 1903(6). Further notice
|
0010| shall not be required on a parent who has been provided notice
|
0011| previously pursuant to Section 32A-2-17 NMSA 1978 and who failed to
|
0012| make an appearance.
|
0013|
|
0014| E. If the identity or whereabouts of a person entitled to
|
0015| service are unknown, the moving party shall file a motion for an
|
0016| order granting service by publication supported by the affidavit of
|
0017| the moving party or his agent or attorney detailing the efforts made
|
0018| to locate the person entitled to service. Upon being satisfied that
|
0019| reasonable efforts to locate the person entitled to service have
|
0020| been made and that information as to the identity or whereabouts of
|
0021| the person is still insufficient to effect service in accordance
|
0022| with the Rules of Civil Procedure for the District Courts, the court
|
0023| shall order service by publication pursuant to the Rules of Civil
|
0024| Procedure for the District Courts.
|
0025|
|
0001| F. After a motion for the termination of parental rights
|
0002| is filed, the parent shall be advised of the right to counsel,
|
0003| unless the parent is already represented by counsel. Counsel shall
|
0004| be appointed, upon request, for any parent who is unable to obtain
|
0005| counsel due to financial reasons or, if in the court's discretion,
|
0006| the interests of justice require appointment of counsel.
|
0007|
|
0008| G. The court shall assure that a guardian ad litem
|
0009| represents the child in all proceedings for the termination of
|
0010| parental rights.
|
0011|
|
0012| H. When a motion to terminate parental rights is filed,
|
0013| the moving party shall request a hearing on the motion. The hearing
|
0014| date shall be at least thirty days, but no more than sixty days,
|
0015| after service is effected upon the parties entitled to service under
|
0016| this section.
|
0017|
|
0018| I. In any action for the termination of parental rights
|
0019| brought by a party other than the department and involving a child
|
0020| in the custody of the department, the department may:
|
0021|
|
0022| (1) litigate a motion for the termination of parental
|
0023| rights that was initially filed by another party; or
|
0024|
|
0025| (2) move that the motion for the termination of
|
0001| parental rights be found premature and denied.
|
0002|
|
0003| J. The grounds for any attempted termination shall be
|
0004| proved by clear and convincing evidence. In any proceeding
|
0005| involving a child subject to the federal Indian Child Welfare Act of
|
0006| 1978, the grounds for any attempted termination shall be proved
|
0007| beyond a reasonable doubt and shall meet the requirements set forth
|
0008| in 25 U.S.C. Section 1912(f).
|
0009|
|
0010| K. When the court terminates parental rights, it shall
|
0011| appoint a custodian for the child and fix responsibility for the
|
0012| child's support.
|
0013|
|
0014| L. In any termination proceeding involving a child subject
|
0015| to the federal Indian Child Welfare Act of 1978, the court shall in
|
0016| any termination order make specific findings that the requirements
|
0017| of that act have been met.
|
0018|
|
0019| M. A judgment of the court terminating parental rights
|
0020| divests the parent of all legal rights and privileges and dispenses
|
0021| with both the necessity for the consent to or receipt of notice of
|
0022| any subsequent adoption proceeding concerning the child. A judgment
|
0023| of the court terminating parental rights shall not affect the
|
0024| child's rights of inheritance from and through the child's
|
0025| biological parents."
|
0001|
|
0002| Section 8. Section 32A-5-16 NMSA 1978 (being Laws 1993,
|
0003| Chapter 77, Section 143) is amended to read:
|
0004|
|
0005| "32A-5-16. TERMINATION PROCEDURES.--
|
0006|
|
0007| A. A proceeding to terminate parental rights may be
|
0008| initiated in connection with or prior to an adoption proceeding.
|
0009| Venue shall be in the court for the county in which the child is
|
0010| physically present or in the county from which the child was placed.
|
0011| The proceeding may be initiated by any of the following:
|
0012|
|
0013| (1) the department;
|
0014|
|
0015| (2) an agency; or
|
0016|
|
0017| (3) any other person having a legitimate interest in
|
0018| the matter, including a petitioner for adoption, the child's
|
0019| guardian, the child's guardian ad litem in another action, an
|
0020| agency, a foster parent, a relative of the child or the child.
|
0021|
|
0022| B. Any petition for termination of parental rights shall
|
0023| be
|
0024| signed and verified by the petitioner, be filed with the court and
|
0025| set forth:
|
0001|
|
0002| (1) the date, place of birth and marital status of
|
0003| the child, if known;
|
0004|
|
0005| (2) the grounds for termination and the facts and
|
0006| circumstances supporting the grounds for termination;
|
0007|
|
0008| (3) the names and addresses of the person, authorized
|
0009| agency or agency officer to whom custody might be transferred;
|
0010|
|
0011| (4) the basis for the court's jurisdiction;
|
0012|
|
0013| (5) that the petition is in contemplation of
|
0014| adoption;
|
0015|
|
0016| (6) the relationship or legitimate interest of the
|
0017| applicant to the child; and
|
0018|
|
0019| (7) whether the child is an Indian child and, if so:
|
0020|
|
0021| (a) the tribal affiliations of the child's
|
0022| parents;
|
0023|
|
0024| (b) the specific actions taken by the moving
|
0025| party to notify the parents' tribe and the results of the contacts,
|
0001| including the names, addresses, titles and telephone numbers of the
|
0002| persons contacted. Copies of any correspondence with the Indian
|
0003| tribe shall be attached as exhibits to the petition; and
|
0004|
|
0005| (c) what specific efforts were made to comply
|
0006| with the placement preferences set forth in the federal Indian Child
|
0007| Welfare Act of 1978 or the placement preferences of the appropriate
|
0008| Indian tribes.
|
0009|
|
0010| C. Notice of the filing of the petition, accompanied by a
|
0011| copy of the petition, shall be served by the petitioner on the
|
0012| parents of the child, the child's guardian, the legal custodian of
|
0013| the child, the person with whom the child is residing, any person
|
0014| with whom the child has resided within the past six months and the
|
0015| department. Service shall be in accordance with the Rules of Civil
|
0016| Procedure for the District Courts for the service of process in a
|
0017| civil action in this state, with the exception that the department
|
0018| may be served by certified mail. The notice shall state
|
0019| specifically that the person served [must] shall file a written
|
0020| response to the petition within twenty days if the person intends to
|
0021| contest the termination. In any case involving an Indian child,
|
0022| notice shall also be served on the child's Indian tribe pursuant to
|
0023| the federal Indian Child Welfare Act of 1978.
|
0024|
|
0025| D. If the identification or whereabouts of a parent is
|
0001| unknown, the petitioner shall file a motion for an order granting
|
0002| service by publication or an order stating that service by
|
0003| publication is not required. A motion for an order granting service
|
0004| by publication shall be supported by the affidavit of the
|
0005| petitioner, the agency or the petitioner's attorney detailing the
|
0006| efforts made to locate the parent. Upon being satisfied that
|
0007| reasonable efforts to locate the parent have been made and that
|
0008| information as to the identity or whereabouts of the parent is still
|
0009| insufficient to effect service in accordance with SCRA, Rule 1-004,
|
0010| the court shall order service by publication or order that
|
0011| publication is not required because the parent's consent is not
|
0012| required pursuant to the provisions of Section 32A-5-19 NMSA 1978.
|
0013|
|
0014| E. The court shall, upon request, appoint counsel for any
|
0015| parent who is unable to obtain counsel for financial reasons or if,
|
0016| in the court's discretion, appointment of counsel is required in the
|
0017| interest of justice. Payment for the appointed counsel shall be
|
0018| made by the petitioner.
|
0019|
|
0020| F. The court shall appoint a guardian ad litem for the
|
0021| child in all contested proceedings for termination of parental
|
0022| rights.
|
0023|
|
0024| G. Within thirty days after the filing of a petition to
|
0025| terminate parental rights, the petitioner shall request a hearing on
|
0001| the petition. The hearing date shall be at least thirty days after
|
0002| service is effected upon the parent of the child or completion of
|
0003| publication.
|
0004|
|
0005| H. The grounds for any attempted termination shall be
|
0006| proved by clear and convincing evidence. In any proceeding
|
0007| involving an Indian child, the grounds for any attempted termination
|
0008| shall be proved beyond a reasonable doubt and meet the requirements
|
0009| set forth in the federal Indian Child Welfare Act of 1978.
|
0010|
|
0011| I. If the court terminates parental rights, it shall
|
0012| appoint a custodian for the child. Upon entering an order
|
0013| terminating the parental rights of a parent, the court may commit
|
0014| the child to the custody of the department, the petitioner or an
|
0015| agency willing to accept custody for the purpose of placing the
|
0016| child for adoption. In any termination proceeding involving an
|
0017| Indian child, the court shall, in any termination order, make
|
0018| specific findings that the requirements of the federal Indian Child
|
0019| Welfare Act of 1978 were met.
|
0020|
|
0021| J. A judgment of the court terminating parental rights
|
0022| divests the parent of all legal rights. Termination of parental
|
0023| rights shall not affect the child's right of inheritance through the
|
0024| former parent."
|
0025|
|
0001| Section 9. Section 32A-5-19 NMSA 1978 (being Laws 1993,
|
0002| Chapter 77, Section 146) is amended to read:
|
0003|
|
0004| "32A-5-19. PERSONS WHOSE CONSENTS OR RELINQUISHMENTS ARE NOT
|
0005| REQUIRED.--The consent to adoption or relinquishment of parental
|
0006| rights required pursuant to the provisions of the Adoption Act shall
|
0007| not be required from:
|
0008|
|
0009| A. a parent whose rights with reference to the adoptee
|
0010| have been terminated pursuant to law;
|
0011|
|
0012| B. a parent who has relinquished the child to an agency
|
0013| for an adoption;
|
0014|
|
0015| C. a biological father of an adoptee conceived as a result
|
0016| of rape or incest;
|
0017|
|
0018| D. any person who has failed to respond when given notice
|
0019| pursuant to the provisions of Section [32-5-27] 32A-5-27 NMSA
|
0020| 1978; [or]
|
0021|
|
0022| E. any putative father who has failed to register with the
|
0023| putative father registry within [90] ninety days of the child's
|
0024| birth; or
|
0025|
|
0001| F. any alleged father."
|
0002|
|
0003| Section 10. Section 32A-5-40 NMSA 1978 (being Laws 1993,
|
0004| Chapter 77, Section 167, as amended) is amended to read:
|
0005|
|
0006| "32A-5-40. POST-DECREE OF ADOPTION ACCESS TO RECORDS.--
|
0007|
|
0008| A. After the decree of adoption has been entered, all
|
0009| court files containing records of judicial proceedings conducted
|
0010| pursuant to the provisions of the Adoption Act and records submitted
|
0011| to the court in the proceedings shall be kept in separate locked
|
0012| files withheld from public inspection. Upon application to the
|
0013| clerk of the court, the records shall be open to inspection by a
|
0014| former parent if the adoptee is eighteen years of age or older, by
|
0015| an adoptee if the adoptee is eighteen years of age or older at the
|
0016| time application is made for inspection, by the adoptive parent if
|
0017| the adoptee is under eighteen years of age at the time application
|
0018| is made for inspection, by the attorney of any party, by any agency
|
0019| that has exercised guardianship over or legal custody of a child who
|
0020| was the adoptee in the particular proceeding, [or] by the
|
0021| department or by an adoptee's sibling; provided that the identity
|
0022| of the former parents and of the adoptee shall be kept confidential
|
0023| unless the former parents and the adoptee have consented to the
|
0024| release of identity. In the absence of consent to release identity,
|
0025| the inspection shall be limited to the following nonidentifying
|
0001| information:
|
0002|
|
0003| (1) the health and medical histories of the adoptee's
|
0004| biological parents;
|
0005|
|
0006| (2) the health and medical history of the adoptee;
|
0007|
|
0008| (3) the adoptee's general family background,
|
0009| including ancestral information, without name references or
|
0010| geographical designations;
|
0011|
|
0012| (4) physical descriptions; and
|
0013|
|
0014| (5) the length of time the adoptee was in the care
|
0015| and custody of persons other than the petitioner.
|
0016|
|
0017| B. After the entry of the decree of adoption, at any time,
|
0018| a former parent may file with the court, with the placing agency or
|
0019| with the department:
|
0020|
|
0021| (1) a consent or refusal or an amended consent or
|
0022| refusal to be contacted;
|
0023|
|
0024| (2) a release of the former parent's identity to the
|
0025| adoptee if the adoptee is eighteen years of age or older or to the
|
0001| adoptive parent if the adoptee is under eighteen years of age; or
|
0002|
|
0003| (3) information regarding the former parent's
|
0004| location or changes in background information.
|
0005|
|
0006| C. The consent or refusal referred to in Subsection B of
|
0007| this section shall be honored by the court, the placing agency or
|
0008| the department, unless for good cause the court orders to the
|
0009| contrary.
|
0010|
|
0011| D. At any time, an adoptee who is eighteen years of age or
|
0012| older may file with the court, a placing agency or the department:
|
0013|
|
0014| (1) information regarding the adoptee's location; or
|
0015|
|
0016| (2) a consent or refusal regarding opening of the
|
0017| adoptee's adoption file to the adoptee's former parents.
|
0018|
|
0019| E. If mutual authorizations for release of identifying
|
0020| information by the parties are not available, an adoptee who is
|
0021| eighteen years of age or older, the biological parents if the
|
0022| adoptee is eighteen years of age or older or the adoptive parents if
|
0023| the adoptee is under the age of eighteen years may file a motion
|
0024| with the court to obtain the release of identifying information for
|
0025| good cause shown. When hearing the motion, the court shall give
|
0001| primary consideration to the best interests of the adoptee, but
|
0002| shall also give due consideration to the interests of the members of
|
0003| the adoptee's former and adoptive families. In determining whether
|
0004| good cause exists for the release of identifying information, the
|
0005| court shall consider:
|
0006|
|
0007| (1) the reason the information is sought;
|
0008|
|
0009| (2) any procedure available for satisfying the
|
0010| petitioner's request without disclosing the name or identity of
|
0011| another individual, including appointment of a confidential
|
0012| intermediary to contact the individual and request specific
|
0013| information;
|
0014|
|
0015| (3) whether the individual about whom identifying
|
0016| information is sought is alive;
|
0017|
|
0018| (4) the preference, to the extent known, of the
|
0019| adoptee, the adoptive parents, the former parents and other members
|
0020| of the adoptee's former and adoptive families and the likely effect
|
0021| of disclosure on those individuals;
|
0022|
|
0023| (5) the age, maturity and expressed needs of the
|
0024| adoptee;
|
0025|
|
0001| (6) the report or recommendation of any individual
|
0002| appointed by the court to assess the request for identifying
|
0003| information; and
|
0004|
|
0005| (7) any other factor relevant to an assessment of
|
0006| whether the benefit to the adoptee of releasing the information
|
0007| sought will be greater than the benefit to any other individual of
|
0008| not releasing the information.
|
0009|
|
0010| F. An adoptee shall have the right, for the purpose of
|
0011| enrolling in the adoptee's tribe of origin, to access information
|
0012| kept by the department. Information needed by an adoptee to enroll
|
0013| in his tribe of origin may be requested from the department by the
|
0014| following persons:
|
0015|
|
0016| (1) the adoptee, after he reaches eighteen years of
|
0017| age;
|
0018|
|
0019| (2) when the adoptee is a child, his adoptive parent
|
0020| or guardian; or
|
0021|
|
0022| (3) an adoptee's descendant or, if the adoptee's
|
0023| descendant is a child, an adult representative for the descendant.
|
0024|
|
0025| G. When the department receives a request for information
|
0001| regarding an adoptee's tribe of origin, the department shall examine
|
0002| its records to determine if the adoptee is of Indian descent. If
|
0003| the department establishes that an adoptee is of Indian descent, the
|
0004| department shall:
|
0005|
|
0006| (1) provide the requestor with the tribal affiliation
|
0007| of the adoptee's biological parents;
|
0008|
|
0009| (2) submit to the tribe information necessary to
|
0010| establish tribal enrollment for the adoptee and to protect any
|
0011| rights flowing from the adoptee's tribal relationship; and
|
0012|
|
0013| (3) provide notice to the requestor of the
|
0014| department's submission of information to the adoptee's tribe."
|
0015|
|
0016| Section 11. Section 32A-5-41 NMSA 1978 (being Laws 1993,
|
0017| Chapter 77, Section 168, as amended) is amended to read:
|
0018|
|
0019| "32A-5-41. APPOINTMENT OF CONFIDENTIAL INTERMEDIARY.--
|
0020|
|
0021| A. The court may appoint a confidential intermediary to
|
0022| ascertain whether an individual is willing to be contacted, is
|
0023| willing to release his name or identity or is willing to meet or
|
0024| otherwise communicate about any condition that may affect the moving
|
0025| party's physical or mental health, upon petition to the court by:
|
0001|
|
0002| (1) an adoptee who is eighteen years of age or older;
|
0003|
|
0004| (2) an adoptive parent of an adoptee who is less than
|
0005| eighteen years of age; [or]
|
0006|
|
0007| (3) an adoptee's former parent, when the adoptee is
|
0008| eighteen years of age or older; or
|
0009|
|
0010| (4) an adoptee's sibling.
|
0011|
|
0012| B. The confidential intermediary shall make a reasonable
|
0013| effort to determine if the individual whose identity is sought by
|
0014| the petitioner has filed a signed document authorizing or refusing
|
0015| to authorize the release of the individual's name or identity.
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0016|
|
0017| C. When the confidential intermediary finds a signed
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0018| authorization for a party to be contacted or for the release of
|
0019| identifying information, the intermediary shall release that
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0020| information to the petitioner. Upon the petitioner's written
|
0021| request, the intermediary may assist the petitioner in locating the
|
0022| individual who authorized the release of identifying information, in
|
0023| ascertaining whether the individual is willing to meet or
|
0024| communicate with the petitioner and in facilitating a meeting or
|
0025| other communication.
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0001|
|
0002| D. When the confidential intermediary finds a signed
|
0003| refusal to authorize the release of identifying information, the
|
0004| intermediary shall report this to the petitioner and the court and
|
0005| shall not attempt to locate or contact the individual who has
|
0006| refused to authorize contact or the release of identifying
|
0007| information. The petitioner may then withdraw the petition or
|
0008| request the release of identifying information for good cause shown,
|
0009| pursuant to the provisions of Section 32A-5-40 NMSA 1978.
|
0010|
|
0011| E. When the confidential intermediary does not find any
|
0012| documents concerning the release of identifying information or if
|
0013| the intermediary finds a document indicating that an individual
|
0014| whose identity is sought by the petitioner is undecided about
|
0015| whether to release identifying information, the intermediary shall
|
0016| make a reasonable search for and discreetly contact the individual
|
0017| to ascertain whether the individual is willing to release
|
0018| information to the petitioner or willing to meet or communicate with
|
0019| the petitioner, whom the intermediary may describe to the individual
|
0020| only in general, nonidentifying terms. When the individual consents
|
0021| in writing to the release of information, the intermediary shall
|
0022| release the information to the petitioner, and upon the mutual
|
0023| written request and consent of the petitioner and the individual,
|
0024| the intermediary shall facilitate a meeting or other communication
|
0025| between the petitioner and the individual. If the individual
|
0001| refuses to authorize the release of information sought by the
|
0002| petitioner, the intermediary shall report this to the petitioner and
|
0003| the court and the petitioner may withdraw the motion or file a
|
0004| motion with the court for an order to release identifying
|
0005| information for good cause shown, pursuant to provisions of Section
|
0006| 32A-5-40 NMSA 1978.
|
0007|
|
0008| F. When an individual sought by the confidential
|
0009| intermediary is deceased, the intermediary shall report this to the
|
0010| petitioner and the court and, upon the petitioner's request, the
|
0011| court shall determine on the basis of the factors listed in Section
|
0012| 32A-5-40 NMSA 1978 whether good cause exists to release identifying
|
0013| information about the individual to the petitioner.
|
0014|
|
0015| G. When an individual sought by the confidential
|
0016| intermediary cannot be located within a year, the intermediary shall
|
0017| report this to the petitioner and the court. The court may
|
0018| authorize an additional search for a specified period of time or
|
0019| determine on the basis of the factors listed in Section 32A-5-40
|
0020| NMSA 1978 whether good cause exists to release identifying
|
0021| information about the individual to the petitioner.
|
0022|
|
0023| H. A confidential intermediary may charge the petitioner
|
0024| for actual expenses incurred in providing a service requested under
|
0025| this section. Upon motion by the intermediary, the court may
|
0001| authorize a reasonable fee in addition to the expenses.
|
0002|
|
0003| I. A confidential intermediary shall complete training
|
0004| provided by the department or any other entity approved by the court
|
0005| and shall file an oath of confidentiality in every court in which
|
0006| the intermediary expects to serve.
|
0007|
|
0008| J. The confidential intermediary oath shall state:
|
0009| "I,__________________________, signing under penalty of
|
0010| perjury, affirm that I have completed the requisite training for a
|
0011| confidential intermediary in this state.
|
0012|
|
0013| I will not disclose to the petitioner, directly or indirectly,
|
0014| any identifying information in sealed records except under the
|
0015| conditions specified in this section.
|
0016|
|
0017| I will conduct a reasonable search for an individual being
|
0018| sought and make a discreet and confidential inquiry as to whether
|
0019| the individual consents to the release of identifying or medical
|
0020| information to the petitioner or to meeting or communicating with
|
0021| the petitioner. I will report to the petitioner or the court the
|
0022| results of my search and inquiry, along with any signed request or
|
0023| consent I receive from the individual.
|
0024|
|
0025| If the individual and the petitioner request and consent in
|
0001| writing to meet or communicate with each other, I will act in
|
0002| accordance with the instructions of the petitioner or the court to
|
0003| facilitate any meeting or communication between them.
|
0004|
|
0005| I will not charge or accept any fee for my services except for
|
0006| reimbursement from the petitioner for actual expenses incurred in
|
0007| performing my services or as authorized by the court.
|
0008|
|
0009| I recognize that unauthorized release of information is a
|
0010| violation of the Adoption Act and subjects me to penalties pursuant
|
0011| to the provisions of Section 32A-5-42 NMSA 1978 and may subject me
|
0012| to being found in contempt of court with penalties, dismissal by the
|
0013| court and civil liability."."".
|
0014|
|
0015| 8. Renumber the succeeding section accordingly.
|
0016|
|
0017| 9. On page 24, between lines 9 and 10, insert the following
|
0018| new section:
|
0019|
|
0020| "Section 8. Section 32A-19-1 NMSA 1978 (being Laws 1993,
|
0021| Chapter 77, Section 228) is amended to read:
|
0022|
|
0023| "32A-19-1. QUALITY ASSURANCE OFFICE.--
|
0024|
|
0025| A. [By August 1, 1993] The department shall
|
0001| [establish] maintain a quality assurance office under the office
|
0002| of the secretary.
|
0003|
|
0004| B. The purpose of the quality assurance office shall be to
|
0005| [assist] facilitate department efforts to efficiently
|
0006| [achieve] implement the purposes of the Children's Code.
|
0007|
|
0008| C. In order to measure the quality of services provided,
|
0009| to facilitate satisfactory outcomes for children and families that
|
0010| receive services and to provide a continuing opportunity to [change
|
0011| and] improve service delivery, the quality assurance office shall:
|
0012|
|
0013| (1) [establish an accessible] monitor the system
|
0014| for receiving and resolving complaints and grievances;
|
0015|
|
0016| [(2) perform periodic investigations and evaluations
|
0017| to assure compliance with the Children's Code and other applicable
|
0018| state and federal laws and regulations;
|
0019|
|
0020| (3) monitor] (2) facilitate monitoring of
|
0021| indicators of the department's performance [and] to determine
|
0022| whether the department is:
|
0023|
|
0024| (a) providing children and families with
|
0025| individualized, needs-based service plans;
|
0001|
|
0002| (b) providing services in a timely manner; and
|
0003|
|
0004| (c) in compliance with applicable state and
|
0005| federal laws and regulations;
|
0006|
|
0007| [(4)] (3) identify any deficiencies and
|
0008| recommend corrective action to the secretary of the department;
|
0009| [and
|
0010|
|
0011| (5)] (4) have access to any records maintained by
|
0012| the department, including confidential information; and
|
0013|
|
0014| (5) promote continuous improvement of all department
|
0015| processes serving children and families.
|
0016|
|
0017| D. The quality assurance office shall [annually produce]
|
0018| contribute to and facilitate the publication of public reports
|
0019| assessing the performance of the department. The [report]
|
0020| reports shall not disclose the identity of any individual
|
0021| mentioned in the report, including children or families that receive
|
0022| or are eligible for services or any department employee."".
|
0023|
|
0024| 10. Renumber the succeeding section accordingly.
|
0025|
|
0001|
|
0002| Respectfully submitted,
|
0003|
|
0004|
|
0005|
|
0006| __________________________________
|
0007| Fernando R. Macias, Chairman
|
0008|
|
0009|
|
0010|
|
0011| Adopted_______________________ Not Adopted_______________________
|
0012| (Chief Clerk) (Chief Clerk)
|
0013|
|
0014|
|
0015| Date ________________________
|
0016|
|
0017|
|
0018| The roll call vote was 5 For 2 Against
|
0019| Yes: 5
|
0020| No: Tsosie, McSorley
|
0021| Excused: Sanchez
|
0022| Absent: None
|
0023|
|
0024|
|
0025| H0717JU1 .118658.1
|
0001|
|