44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO CHILDREN; PROVIDING PROCEDURES FOR APPOINTING A PERMANENT GUARDIAN IF A COMPLAINT ALLEGING NEGLECT OR ABUSE HAS NOT BEEN FILED.

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

Section 1. Section 32A-1-10 NMSA 1978 (being Laws 1993, Chapter 77, Section 19) is amended to read:

"32A-1-10. PETITION--WHO MAY SIGN.--

A. Except for a petition filed pursuant to Section 32A-4-31.1 NMSA 1978, a petition initiating proceedings pursuant to the provisions of Chapter [32] 32A, Article 2, 3B, 4 or 6 NMSA 1978 shall be signed by the children's court attorney.

B. An affidavit for an ex-parte custody order may be signed by any person who has knowledge of the facts alleged or is informed of them and believes that they are true."

Section 2. Section 32A-4-31 NMSA 1978 (being Laws 1993, Chapter 77, Section 125) is amended to read:

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

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

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

C. Except as provided in Subsection D of its section, the court may establish a permanent guardianship between a child and the guardian when the prospective guardianship is in the child's best interest and when:

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

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

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

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

D. For a petition filed pursuant to Section 32A-4-31.1 NMSA 1978, the court may establish a permanent guardianship of a child when the prospective guardianship is in the child's best interest and when the court finds that:

(1) the child has suffered, or is at risk of suffering, abuse, neglect or abandonment; and

(2) placing the child in the natural or adoptive parent's care is against the child's best interest because the parent continues to be unwilling or unable to properly care for the child."

Section 3. A new Section 32A-4-31.1 NMSA 1978 is enacted to read:

"32A-4-31.1. [NEW MATERIAL] PETITION FOR PERMANENT GUARDIANSHIP IF A COMPLAINT ALLEGING NEGLECT OR ABUSE HAS NOT BEEN FILED.--

A. If a complaint alleging neglect or abuse of a child has not been filed, but an adult having a relationship with a child believes that the child has suffered or is at risk of suffering abuse, neglect or abandonment, the adult may petition the court to be appointed as a permanent guardian.

B. The court has jurisdiction to hear petitions filed pursuant to this section. A petition filed pursuant to this section shall be heard and adjudicated pursuant to the requirements of Sections 32A-4-31 and 32A-4-32 NMSA 1978."

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

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

A. A [motion] petition for permanent guardianship may be filed by any party or by any adult having a relationship with the child.

B. [Any application] A petition for permanent guardianship shall be signed and verified by the petitioner, filed with the court and set forth:

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

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

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

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

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

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

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

(b) the specific actions taken by the petitioner to notify the parents' tribe and the results of the contacts, including the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the tribes shall be attached as exhibits to the petition; and

(c) what specific efforts were made to comply with the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the appropriate Indian tribes.

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

D. Notice of the filing of the [motion] petition, accompanied by a copy of the [motion] petition, shall be served by the [moving party] petitioner on any parent who has not previously been made a party to the proceeding, the parents of the child, foster parents with whom the child is residing, foster parents with whom the child has resided for six months, the child's custodian, the department, any person appointed to represent any party, including the child's guardian ad litem, and any other person the court orders provided with notice. Service shall be in accordance with the Rules of Civil Procedure for the District Courts for the service of process in a civil action in this state. The notice shall state specifically that the person served [must] shall file a written response to the application within twenty days if the person intends to contest the guardianship.

E. When the child is an Indian child, subject to the federal Indian Child Welfare Act of 1978, notice shall also be served upon the Indian tribes of the child's parents and upon any "Indian custodian" as that term is defined in

25 U.S.C. Section 1903(6).

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

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

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

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

J. Any party to [the] an abuse or neglect proceeding, the child or a parent of the child may [make a motion] petition for revocation of the order granting guardianship when there is a significant change of circumstances, including:

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

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

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

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