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N.M. Stat. § 32A-4-29
New Mexico Statutes
Chapter
32A. Children's Code
Article
4. Abuse and Neglect Act
§ 32A-4-29. Termination
procedure
A. A motion to terminate parental rights may be filed at any stage of
the abuse or neglect proceeding by a party to the proceeding.
B.
The motion for termination of parental rights shall set forth:
(1)
the date, place of birth and marital status of the child, if known;
(2)
the grounds for termination and the facts and circumstances supporting
the grounds for termination;
(3)
the names and addresses of the persons or authorized agency or agency
officer to whom legal custody might be transferred;
(4)
whether the child resides or has resided with a foster parent who desires
to adopt this child;
(5)
whether the motion is in contemplation of adoption;
(6)
the relationship or legitimate interest of the moving party to the child;
and
(7)
whether the child is subject to the federal Indian Child Welfare Act of
1978 and, if so:
(a)
the tribal affiliations of the child's parents;
(b)
the specific actions taken by the moving party to notify the parents'
tribes and the results of the contacts, including the names, addresses,
titles and telephone numbers of the persons contacted. Copies of any correspondence
with the tribes shall be attached as exhibits to the petition; and
(c)
what specific efforts were made to comply with the placement preferences
set forth in the federal Indian Child Welfare Act of 1978 or the placement
preferences of the appropriate Indian tribes.
C.
Notice of the filing of the motion, accompanied by a copy of the motion,
shall be served by the moving party on all other parties, the foster parent,
preadoptive parent or relative providing care for the child with whom
the child is residing, foster parents with whom the child has resided
for six months within the previous twelve months, the custodian of the
child, any person appointed to represent any party and any other person
the court orders. Service
shall be in accordance with the Children's Court Rules for the service
of motions, except that foster parents and attorneys of record in this
proceeding shall be served by certified mail. The notice shall state specifically
that the person served shall file a written response to the motion within
twenty days if the person intends to contest the termination. In any case
involving a child subject to the federal Indian Child Welfare Act of 1978,
notice shall also be sent by certified mail to the tribes of the child's
parents and upon any "Indian custodian" as that term is defined
in 25 U.S.C. Section 1903(6). Further notice shall not be required on
a parent who has been provided notice previously pursuant to Section 32A-4-17
NMSA 1978 and who failed to make an appearance.
D.
When a motion to terminate parental rights is filed, the moving party
shall request a hearing on the motion. The hearing date shall be at least
thirty days, but no more than sixty days, after service is effected upon
the parties entitled to service under this section.
E.
In any action for the termination of parental rights brought by a party
other
than the department and involving a child in the legal custody of the
department, the department may:
(1)
litigate a motion for the termination of parental rights that was initially
filed by another party; or
(2)
move that the motion for the termination of parental rights be found premature
and denied.
F.
When a motion to terminate parental rights is filed, the department shall
perform concurrent planning.
G.
When a child has been in foster care for not less than fifteen of the
previous twenty-two months, the department shall file a motion to terminate
parental rights, unless:
(1)
a parent has made substantial progress toward eliminating the problem
that caused the child's placement in foster care; it is likely that the
child will be able to safely return to the parent's home within three
months; and the child's return to the parent's home will be in the child's
best interests;
(2)
the child has a close and positive relationship with a parent and a permanent
plan that does not include termination of parental rights will provide
the most secure and appropriate placement for the child;
(3)
the child is fourteen years of age or older, is firmly opposed to termination
of parental rights and is likely to disrupt an attempt to place him with
an adoptive family;
(4)
a parent is terminally ill, but in remission, and does not want his parental
rights to be terminated; provided that the parent has designated a guardian
for his child;
(5)
the child is not capable of functioning if placed in a family setting.
In such a case, the court shall reevaluate the status of the child every
ninety days unless there is a final court determination that the child
cannot be placed in a family setting;
(6)
grounds do not exist for termination of parental rights;
(7)
the child is an unaccompanied, refugee minor and the situation regarding
the child involves international legal issues or compelling foreign policy
issues; or
(8)
adoption is not an appropriate plan for the child.
H.
For purposes of this section, a child shall be considered to have entered
foster
care on the earlier of:
(1)
the date of the first judicial finding that the child has been abused
or neglected; or
(2)
the date that is sixty days after the date on which the child was removed
from the home.
I.
The grounds for any attempted termination shall be proved by clear and
convincing evidence. In any proceeding involving a child subject to the
federal Indian Child Welfare Act of 1978, the grounds for any attempted
termination shall be proved beyond a reasonable doubt and shall meet the
requirements set forth in 25 U.S.C. Section 1912(f).
J.
When the court terminates parental rights, it shall appoint a custodian
for the child and fix responsibility for the child's support.
K.
In any termination proceeding involving a child subject to the federal
Indian Child Welfare Act of 1978, the court shall in any termination order
make specific
findings that the requirements of that act have been met.
L.
A judgment of the court terminating parental rights divests the parent
of all legal rights and privileges and dispenses with both the necessity
for the consent to or receipt of notice of any subsequent adoption proceeding
concerning the child. A judgment of the court terminating parental rights
shall not affect the child's rights of inheritance from and through the
child's biological parents.
L.
1993, Ch. 77, § 123; L. 1997, Ch. 34, § 10, eff. July 1, 1997;
L. 1999, Ch. 77, § 11, eff. July 1, 1999; L. 2001, Ch. 315, §
1, eff. July 1, 2001; L. 2003, Ch. 108, § 1; L. 2005, Ch. 189, §
52, eff. June 17, 2005.
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