HOUSE BILL 506

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

Gail Chasey

AN ACT

RELATING TO CHILDREN; CLARIFYING GROUNDS FOR TERMINATION OF PARENTAL RIGHTS PRIOR TO ADOPTION.

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

     SECTION 1. Section 32A-5-15 NMSA 1978 (being Laws 1993, Chapter 77, Section 142, as amended) is amended to read:

     "32A-5-15. INITIATION OF TERMINATION OF PARENTAL RIGHTS.--

          A. A proceeding to terminate parental rights may be initiated in connection with or prior to an adoption proceeding. The physical, mental and emotional welfare and needs of the child shall be the primary consideration for the termination of parental rights. The court may terminate the rights of the child's parents as provided by the Adoption Act.

          [B. The court shall terminate parental rights with respect to a child when:

                (1) the child has been abandoned by the parents;

                (2) the child has been a neglected or abused child and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future; or

                (3) the child has been placed in the care of others, including care by other relatives, either by a court order or otherwise, and the following conditions exist:

                     (a) the child has lived in the home of others for an extended period of time;

                     (b) the parent-child relationship has disintegrated;

                     (c) a psychological parent-child relationship has developed between the substitute family and the child;

                     (d) if the court deems the child of sufficient capacity to express a preference, the child no longer prefers to live with the natural parent;

                     (e) the substitute family desires to adopt the child; and

                     (f) a presumption of abandonment created by the conditions described in Subparagraphs (a) through (e) of this paragraph has not been rebutted.

          C. A finding by the court that all of the conditions set forth in Subparagraph (a) through (e) of Paragraph (3) of Subsection B of this section exist shall create a rebuttable presumption of abandonment.]

          B. A proceeding to terminate parental rights based on abuse, neglect or abandonment pursuant to the Abuse and Neglect Act may be initiated only by the department, and only pursuant to the provisions of the Abuse and Neglect Act.

          C. A proceeding to terminate parental rights based on the presumption of abandonment may be initiated by:

                (1) an agency; or

                (2) 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 or attorney in another action, a foster parent, a relative of the child or the child.

           D. The termination of parental rights involving an Indian child shall comply with the requirements of the federal Indian Child Welfare Act of 1978."

     SECTION 2. Section 32A-5-16 NMSA 1978 (being Laws 1993, Chapter 77, Section 143, as amended) is amended to read:

     "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 or attorney 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 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. If the child is fourteen years of age or older and in the custody of the department, the child's attorney appointed pursuant to the Abuse and Neglect Act shall represent the child in any proceedings for termination of parental rights under this section.

          G. Within thirty days after the filing of a petition to terminate parental rights, the petitioner shall request a hearing on the petition unless the petitioner has requested and been granted an extension of time to request a hearing. The hearing date shall be at least thirty days after service is effected upon the parent of the child or completion of publication. The petition shall be dismissed if the petitioner has not requested a hearing as provided in this subsection.

          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.]

          J. If the petitioner alleges presumptive abandonment of the child, the petition shall set out facts that prove that all of the following conditions exist:

                (1) the child has lived in the home of others for at least one year;

                (2) the parent-child relationship has disintegrated;

                (3) a psychological parent-child relationship has developed between the substitute family and the child;

                (4) if the court deems the child of sufficient capacity to express a preference, the child no longer prefers to live with the natural parent; and

                (5) the substitute family desires to adopt the child.

          K. A finding by the court that the child has been in the care of others, including care by other relatives, either by a court order or otherwise, and all the conditions in Subsection J of this section exist, shall create a rebuttable presumption of abandonment."

     SECTION 3. REPEAL.--Section 32A-5-18 NMSA 1978 (being Laws 1993, Chapter 77, Section 145) is repealed.

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