|
N.M. Stat. § 32A-5-16
New Mexico Statutes
Chapter
32A. Children's Code Article
5. Adoption Act
§ 32A-5-16. Termination
procedures
A. A proceeding to terminate parental rights may be initiated in connection
with or prior to an adoption proceeding. Venue shall be in the court for
the county in which the child is physically present or in the county from
which the child was placed. The proceeding may be initiated by any of
the following:
(1)
the department;
(2)
an agency; or
(3)
any other person having a legitimate interest in the matter, including
a petitioner for adoption, the child's guardian, the child's guardian
ad litem in another action, a foster parent, a relative of the child or
the child.
B.
A petition for termination of parental rights shall be signed and verified
by the petitioner, be filed with the court and 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 person, authorized agency or agency officer
to whom custody might be transferred;
(4)
the basis for the court's jurisdiction;
(5)
that the petition is in contemplation of adoption;
(6)
the relationship or legitimate interest of the applicant to the child;
and
(7)
whether the child is an Indian child 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'
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 Indian tribe 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 [FN1]
or the placement preferences of the appropriate Indian tribes.
C.
Notice of the filing of the petition, accompanied by a copy of the petition,
shall
be served by the petitioner on the parents of the child, the child's guardian,
the legal custodian of the child, the person with whom the child is residing,
the individuals with whom the child has resided within the past six months
and the department. 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, with the exception that the department may be served
by certified mail. The notice shall state specifically that the person
served shall file a written response to the petition within twenty days
if the person intends to contest the termination. In any case involving
an Indian child, notice shall also be served on the child's Indian tribe
pursuant to the federal Indian Child Welfare Act of 1978.
D.
If the identification or whereabouts of a parent is unknown, the petitioner
shall file a motion for an order granting service by publication or an
order stating that service by publication is not required. A motion for
an order granting service by publication shall be supported by the affidavit
of the petitioner, the agency or the petitioner's attorney detailing the
efforts made to locate the parent. Upon being satisfied that reasonable
efforts to locate the parent have been made and that information as to
the identity or whereabouts
of the parent is still insufficient to effect service in accordance with
SCRA, Rule 1-004, the court shall order service by publication or order
that publication is not required because the parent's consent is not required
pursuant to the provisions of Section 32A-5-19 NMSA 1978.
E.
The court shall, upon request, appoint counsel for an indigent parent
who is unable to obtain counsel or if, in the court's discretion, appointment
of counsel for an indigent parent is required in the interest of justice.
Payment for the appointed counsel shall be made by the petitioner pursuant
to the rate determined by the supreme court of New Mexico for court-appointed
attorneys.
F.
The court shall appoint a guardian ad litem for the child in all contested
proceedings for termination of parental rights.
G.
Within thirty days after the filing of a petition to terminate parental
rights, the petitioner shall request a hearing on the petition. The hearing
date shall be at least thirty days after service is effected upon the
parent of the
child or completion of publication.
H.
The grounds for any attempted termination shall be proved by clear and
convincing evidence. In any proceeding involving an Indian child, the
grounds for any attempted termination shall be proved beyond a reasonable
doubt and meet the requirements set forth in the federal Indian Child
Welfare Act of 1978.
I.
If the court terminates parental rights, it shall appoint a custodian
for the child. Upon entering an order terminating the parental rights
of a parent, the court may commit the child to the custody of the department,
the petitioner or an agency willing to accept custody for the purpose
of placing the child for adoption. In any termination proceeding involving
an Indian child, the court shall, in any termination order, make specific
findings that the requirements of the federal Indian Child Welfare Act
of 1978 were met.
J.
A judgment of the court terminating parental rights divests the parent
of all
legal rights. Termination of parental rights shall not affect the child's
right of inheritance through the former parent.
L.
1993, Ch. 77, § 143; L. 1997, Ch. 34, § 11, eff. July 1, 1997;
L. 2001, Ch. 162, § 3.
[FN1]
25 U.S.C.A. § 1901 et seq.
|