HOUSE BILL 508
51st legislature - STATE OF NEW MEXICO - first session, 2013
INTRODUCED BY
Georgene Louis
AN ACT
RELATING TO PARENTAL RIGHTS; PROVIDING FOR THE TERMINATION OF PARENTAL RIGHTS WHEN CRIMINAL SEXUAL PENETRATION RESULTS IN CONCEPTION OF A CHILD.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the Children's Code is enacted to read:
"[NEW MATERIAL] TERMINATION OF PARENTAL RIGHTS--CONCEPTION RESULTING FROM CRIMINAL SEXUAL PENETRATION.--
A. In proceedings to terminate parental rights pursuant to this section, the court shall give primary consideration to the physical, mental and emotional welfare and needs of the child and the circumstances of the child's conception.
B. The court shall terminate parental rights with respect to a child when it is shown that the child was conceived as a result of criminal sexual penetration perpetrated by the parent whose rights a moving party seeks to terminate.
C. Proceedings to terminate parental rights that involve a child subject to the federal Indian Child Welfare Act of 1978 shall comply with the requirements of that act.
D. A motion to terminate parental rights pursuant to this section may be filed at any time by a parent or guardian of a child.
E. A motion for termination of parental rights filed pursuant to this section shall set forth:
(1) the relationship or legitimate interest of the moving party to the child;
(2) the date and place of birth of the child, if known;
(3) the facts and circumstances of the child's conception in support of the motion;
(4) the name and address of the person whose parental rights the moving party seeks to terminate, if known;
(5) the names and addresses of the persons who would retain legal custody of the child upon termination of parental rights; 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 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) the specific efforts made to comply with the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the appropriate Indian tribes.
F. 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, including, if applicable, the foster parent, the person providing care for the child with whom the child is residing, the custodian of the child, any person appointed to represent 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 the proceeding shall be served by certified mail. The notice shall state specifically that the person served shall file a written response to the motion within 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).
G. When a motion to terminate parental rights is filed pursuant to this section, 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.
H. The grounds for a termination pursuant to this section shall be proved by clear and convincing evidence. The circumstances of the child's conception may be proved by evidence of conviction for criminal sexual penetration or by other evidence presented to the court that indicates that criminal sexual penetration was committed during the time the child was conceived. 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).
I. In a termination proceeding involving a child subject to the federal Indian Child Welfare Act of 1978, the court shall, in a termination order, make specific findings that the requirements of that act have been met.
J. A judgment of the court terminating parental rights pursuant to this section shall not relieve the parent whose rights were terminated of financial responsibility for the child.
K. When the court terminates parental rights pursuant to this section, it shall include in its order the name of the person who retains custody of the child, and the court shall fix responsibility for the child's support.
L. A judgment of the court terminating parental rights pursuant to this section 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.
M. When the court denies a motion to terminate parental rights pursuant to this section, the court shall issue appropriate orders immediately. The parties may file a request for hearing within thirty days of the date of the hearing denying the termination of parental rights.
N. All records or information concerning a party to a proceeding to terminate parental rights pursuant to this section shall be confidential and closed to the public. The records and information shall be disclosed only to the parties, court personnel, attorneys for the parties to the proceeding and, if applicable:
(1) court-appointed special advocates;
(2) the child's guardian ad litem;
(3) the attorney representing the child in an abuse or neglect action, a delinquency action or any other action under the Children's Code;
(4) department personnel;
(5) any local substitute care review board or any agency contracted to implement local substitute care review boards;
(6) law enforcement officials, except when use immunity is granted pursuant to Section 32A-4-11 NMSA 1978;
(7) district attorneys, except when use immunity is granted pursuant to Section 32A-4-11 NMSA 1978;
(8) a state government social services agency in another state and when, in the opinion of the department it is in the best interest of the child, a governmental social services agency of another country;
(9) those persons or entities of an Indian tribe specifically authorized to inspect the records pursuant to the federal Indian Child Welfare Act of 1978 or any regulations promulgated pursuant to that act;
(10) a foster parent, if the records are those of a child currently placed with that foster parent or of a child being considered for placement with that foster parent and the records concern the social, medical, psychological or educational needs of the child;
(11) school personnel involved with the child if the records concern the child's social or educational needs;
(12) health care or mental health professionals involved in the evaluation or treatment of the child or of the child's parent, guardian, custodian or other family members;
(13) protection and advocacy representatives pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1991;
(14) children's safehouse organizations conducting investigatory interviews of children on behalf of a law enforcement agency or the department; and
(15) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court.
O. Whoever intentionally and unlawfully releases any information or records closed to the public pursuant to this section or releases or makes other unlawful use of records in violation of this section is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.
P. Nothing in this section shall affect the requirements set forth in the Abuse and Neglect Act or the Adoption Act as those acts may relate to a child that is the subject of a proceeding pursuant to this section.
Q. As used in this section:
(1) "child" means a child conceived as a result of criminal sexual penetration or an offense pursuant to the laws of another jurisdiction, territory or possession of the United States or an Indian nation, tribe or pueblo that is equivalent to criminal sexual penetration pursuant to the laws of this state; and
(2) "criminal sexual penetration" means criminal sexual penetration pursuant to the laws of this state or an offense pursuant to the laws of another jurisdiction, territory or possession of the United States or an Indian nation, tribe or pueblo that is equivalent to criminal sexual penetration pursuant to the laws of this state."
SECTION 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2013.
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