FORTY-THIRD LEGISLATURE HJC/HB 717/a FIRST SESSION, 1997 March 8, 1997 Mr. President: Your JUDICIARY COMMITTEE, to whom has been referred HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR HOUSE BILL 717, as amended has had it under consideration and reports same with recommendation that it DO PASS, amended as follows: 1. On page 1, line 11, after the semicolon insert "CLARIFYING DUTIES TO REPORT ALLEGED ABUSE OR NEGLECT OF A CHILD;". 2. On page 1, line 12, after the semicolon insert "CLARIFYING ADOPTION PROCEDURES; CLARIFYING THE DUTIES OF THE QUALITY ASSURANCE OFFICE;". 3. On page 1, between lines 15 and 16, insert the following new sections: "Section 1. Section 32A-4-2 NMSA 1978 (being Laws 1993, Chapter 77, Section 96) is amended to read: "32A-4-2. DEFINITIONS.--As used in the Abuse and Neglect Act: A. "abandonment" includes, but is not limited to, instances when the parent, without justifiable cause: (1) left the child without provision for the child's identification for a period of fourteen days; or (2) left the child with others, including the other parent or an agency, without provision for support and without communication for a period of: (a) three months if the child was under six years of age at the commencement of the three-month period; or (b) six months if the child was over six years of age at the commencement of the six-month period; B. "abused child" means a child: (1) who is at risk of suffering serious harm; [(1)] (2) who has suffered physical abuse, emotional abuse or psychological abuse inflicted by the child's parent, guardian or custodian; [(2)] (3) who has suffered sexual abuse or sexual exploitation inflicted by the child's parent, guardian or custodian; [(3)] (4) whose parent, guardian or custodian has knowingly, intentionally or negligently placed the child in a situation that may endanger the child's life or health; or [(4)] (5) whose parent, guardian or custodian has knowingly or intentionally tortured, cruelly confined or cruelly punished the child; C. "neglected child" means a child: (1) who has been abandoned by the child's parent, guardian or custodian; (2) who is without proper parental care and control or subsistence, education, medical or other care or control necessary for the child's well-being because of the faults or habits of the child's parent, guardian or custodian or the neglect or refusal of the parent, guardian or custodian, when able to do so, to provide them; (3) who has been physically or sexually abused, when the child's parent, guardian or custodian knew or should have known of the abuse and failed to take reasonable steps to protect the child from further harm; (4) whose parent, guardian or custodian is unable to discharge his responsibilities to and for the child because of incarceration, hospitalization or other physical or mental disorder or incapacity; or (5) who has been placed for care or adoption in violation of the law; provided that nothing in the Children's Code shall be construed to imply that a child who is being provided with treatment by spiritual means alone through prayer, in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof is for that reason alone a neglected child within the meaning of the Children's Code; and further provided that no child shall be denied the protection afforded to all children under the Children's Code; D. "physical abuse" includes, but is not limited to, any case in which the child exhibits evidence of skin bruising, bleeding, malnutrition, failure to thrive, burns, fracture of any bone, subdural hematoma, soft tissue swelling or death and: (1) there is not a justifiable explanation for the condition or death; (2) the explanation given for the condition is at variance with the degree or nature of the condition; (3) the explanation given for the death is at variance with the nature of the death; or (4) circumstances indicate that the condition or death may not be the product of an accidental occurrence; E. "sexual abuse" includes, but is not limited to, criminal sexual contact, incest or criminal sexual penetration, as those acts are defined by state law; and F. "sexual exploitation" includes, but is not limited to: (1) allowing, permitting or encouraging a child to engage in prostitution; (2) allowing, permitting, encouraging or engaging a child in obscene or pornographic photographing; or (3) filming or depicting a child for obscene or pornographic commercial purposes, as those acts are defined by state law." Section 2. Section 32A-4-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 97) is amended to read: "32A-4-3. DUTY TO REPORT CHILD ABUSE AND CHILD NEGLECT-- RESPONSIBILITY TO INVESTIGATE CHILD ABUSE OR NEGLECT--PENALTY.-- A. Every person, including but not limited to a licensed physician, a resident or an intern examining, attending or treating a child, a law enforcement officer, a judge presiding during any proceeding, a registered nurse, a visiting nurse, a schoolteacher or a school official or social worker acting in an official capacity who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately to: (1) a local law enforcement agency; (2) the department office in the county where the child resides; or (3) tribal law enforcement or social services agencies for any Indian child residing in Indian country. B. Any law enforcement agency receiving the report shall immediately transmit the facts of the report and the name, address and phone number of the reporter by telephone to the department office in the county where the child resides and shall transmit the same information in writing within forty-eight hours. Any office of the department receiving a report shall immediately transmit the facts of the report and the name, address and phone number of the reporter by telephone to a local law enforcement agency and shall transmit the same information in writing within forty-eight hours. The written report shall contain the names and addresses of the child and the child's parents, guardian or custodian, the child's age, the nature and extent of the child's injuries, including any evidence of previous injuries, and other information that the maker of the report believes might be helpful in establishing the cause of the injuries and the identity of the person [or persons] responsible for the injuries. The written report shall be submitted upon a standardized form agreed to by the law enforcement agency and the department. C. If an alleged perpetrator of abuse or neglect of a child is not a parent, guardian or custodian of the child or a member of the child's family, a local law enforcement agency is primarily responsible for investigating the case of alleged abuse or neglect. D. If an alleged perpetrator of abuse or neglect of a child is a parent, guardian or custodian of the child or a member of the child's family, the department is primarily responsible for investigating the case of alleged abuse or neglect. [C.] E. The recipient of the report under Subsection A of this section shall take immediate steps to ensure prompt investigation of the report. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect. A local law enforcement agency is responsible for investigating reports of alleged child abuse or neglect at schools, day care facilities or child care facilities. [D. Upon a determination by the department that any child may have suffered or is in imminent danger of suffering abuse or neglect while in the care or control of or in a child care facility or family day-care home, the department shall immediately notify the parents of the child and the agency responsible for licensing the child care facility or family day-care home. No determination shall be made prior to consultation with the facility. E.] F. If the child alleged to be abused or neglected is in the care or control of or in a facility administratively connected to the department, the report shall be investigated [through the office of the district attorney] by local law enforcement. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect. [F.] G. A law enforcement agency or the department shall have access to any of the records pertaining to a child abuse or neglect case maintained by any of the persons enumerated in Subsection A of this section, except as otherwise provided in the Abuse and Neglect Act. [G.] H. Any person who violates the provisions of Subsection A of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."". 4. Renumber the succeeding sections accordingly. 5. On page 4, between lines 23 and 24, insert the following new section: "Section 3. Section 32A-4-21 NMSA 1978 (being Laws 1993, Chapter 77, Section 115) is amended to read: "32A-4-21. NEGLECT OR ABUSE PREDISPOSITION STUDIES, REPORTS AND EXAMINATIONS.-- A. Prior to holding a dispositional hearing, the court shall direct that a predisposition study and report be [made] submitted in writing to the court by the department. B. The predisposition study required pursuant to Subsection A of this section shall contain the following information: (1) a statement of the specific [harm to the child that intervention is designed to alleviate] reasons for intervention by the department or for placing the child in the department's custody and a statement of the parent's ability to care for the child in the parent's home without causing harm to the child; [(2) if removal from or continued residence outside the home is recommended, a statement of the likely harm the child will suffer as a result of removal, including emotional harm resulting from separation from the child's parents; and (3) a treatment plan consisting of: (a) a description of the specific progress needed to be made by both the parent and the child in order to prevent further harm to the child, the reasons why the program is likely to be useful, the availability of any proposed services and the department's overall plan for ensuring that the services will be delivered; (b) if removal from the home or continued residence outside the home is recommended, a description of any previous efforts to work with the parent and the child in the home and the in-home treatment programs that have been considered and rejected; (c) a description of the steps that will be taken to minimize any harm to the child that may result if separation from the child's parent occurs or continues; (d) a description of the behavior that will be expected before a determination is made that supervision of the family or placement is no longer necessary; and (e) if removal from or continued residence outside the home is recommended and the child is sixteen years of age or older, a description of the specific skills the child requires for successful transition into independent living as an adult, what program, educational or otherwise, will provide the skills, the reasons why the program is likely to be useful, the availability of any proposed programs and the department's overall plan for ensuring that the child will be adequately prepared for adulthood] (2) a statement of how an intervention plan is designed to achieve placement of the child in the least restrictive setting available, consistent with the best interests and special needs of the child, including a statement of the likely harm the child may suffer as a result of being removed from the parent's home, including emotional harm that may result due to separation from the child's parents, and a statement of how the intervention plan is designed to place the child in close proximity to the parent's home without causing harm to the child due to separation from his parents, siblings or any other person who may significantly affect the child's best interest; (3) the wishes of the child as to his custodian; (4) whether the child has a family member who, subsequent to study by the department, is determined to be qualified to care for the child; (5) a description of services offered to the child, his family and his foster care family and a summary of reasonable efforts made to prevent removal of the child from his family or reasonable efforts made to reunite the child with his family; (6) a description of the home or facility in which the child is placed and the appropriateness of the child's placement; (7) the results of any diagnostic examination or evaluation ordered at the custody hearing; (8) a statement of the child's medical and educational background; (9) if the child is an Indian child, whether the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the child's Indian tribe were followed and whether the child's treatment plan provides for maintaining the child's cultural ties; (10) a treatment plan that sets forth steps to ensure that the child's physical, medical, psychological and educational needs are met and that sets forth services to be provided to the child and his parents to facilitate permanent placement of the child in the parent's home; and (11) for children sixteen years of age and older, a plan for developing the specific skills the child requires for successful transition into independent living as an adult, regardless of whether the child is returned to his parent's home. C. A copy of the predisposition report shall be provided by the department to counsel for all parties five days before the dispositional hearing. D. If the child is an adjudicated abused child, any temporary custody orders shall remain in effect until the court has received and considered the predispositional study at the dispositional hearing."". 6. Renumber the succeeding sections accordingly. 7. On pages 19 through 24, strike Section 7 in its entirety and insert in lieu thereof the following new sections: "Section 7. Section 32A-4-29 NMSA 1978 (being Laws 1993, Chapter 77, Section 123) is amended to read: "32A-4-29. TERMINATION PROCEDURE.-- A. A motion to terminate parental rights may be filed at any stage of the abuse or neglect proceeding. The proceeding may be initiated by any of the following: (1) the department; (2) a licensed child placement agency; or (3) any other person having a legitimate interest in the matter, including the child's guardian ad litem, a petitioner for adoption, a foster parent or a relative of the child. B. The motion for termination of parental rights shall be signed, verified by the moving party and filed with the court. The motion 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 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' [tribe] 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. A parent who has not previously been a party to the proceeding shall be named in the motion and shall become a party to the proceeding, unless the court determines that the parent has not established a protected liberty interest in his relationship with the child. D. Notice of the filing of the motion, accompanied by a copy of the motion, shall be served by the moving party on [the parents of the child, any parent who has not previously been made a party to the proceeding] all other parties, foster parents 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, [the department] any person appointed to represent any party [including the child's guardian ad litem] and any other person the court orders. Service shall be in accordance with the Rules of Civil Procedure for the District Courts for the service of [process] motions in a civil action in this state, except that foster parents and attorneys of record in this proceeding [may] shall be served by certified mail. The notice shall state specifically that the person served [must] 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 [served upon] 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-2-17 NMSA 1978 and who failed to make an appearance. E. If the identity or whereabouts of a person entitled to service are unknown, the moving party shall file a motion for an order granting service by publication supported by the affidavit of the moving party or his agent or attorney detailing the efforts made to locate the person entitled to service. Upon being satisfied that reasonable efforts to locate the person entitled to service have been made and that information as to the identity or whereabouts of the person is still insufficient to effect service in accordance with the Rules of Civil Procedure for the District Courts, the court shall order service by publication pursuant to the Rules of Civil Procedure for the District Courts. F. After a motion for the termination of parental rights is filed, the parent shall be advised of the right to counsel, unless the parent is already represented by counsel. Counsel shall be appointed, upon request, for any parent who is unable to obtain counsel due to financial reasons or, if in the court's discretion, the interests of justice require appointment of counsel. G. The court shall assure that a guardian ad litem represents the child in all proceedings for the termination of parental rights. H. 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. I. In any action for the termination of parental rights brought by a party other than the department and involving a child in the 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. J. 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). K. When the court terminates parental rights, it shall appoint a custodian for the child and fix responsibility for the child's support. L. 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. M. 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." Section 8. Section 32A-5-16 NMSA 1978 (being Laws 1993, Chapter 77, Section 143) 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 in another action, an agency, a foster parent, a relative of the child or the child. B. Any 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, any person 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 [must] 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 any parent who is unable to obtain counsel for financial reasons or if, in the court's discretion, appointment of counsel is required in the interest of justice. Payment for the appointed counsel shall be made by the petitioner. 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." Section 9. Section 32A-5-19 NMSA 1978 (being Laws 1993, Chapter 77, Section 146) is amended to read: "32A-5-19. PERSONS WHOSE CONSENTS OR RELINQUISHMENTS ARE NOT REQUIRED.--The consent to adoption or relinquishment of parental rights required pursuant to the provisions of the Adoption Act shall not be required from: A. a parent whose rights with reference to the adoptee have been terminated pursuant to law; B. a parent who has relinquished the child to an agency for an adoption; C. a biological father of an adoptee conceived as a result of rape or incest; D. any person who has failed to respond when given notice pursuant to the provisions of Section [32-5-27] 32A-5-27 NMSA 1978; [or] E. any putative father who has failed to register with the putative father registry within [90] ninety days of the child's birth; or F. any alleged father." Section 10. Section 32A-5-40 NMSA 1978 (being Laws 1993, Chapter 77, Section 167, as amended) is amended to read: "32A-5-40. POST-DECREE OF ADOPTION ACCESS TO RECORDS.-- A. After the decree of adoption has been entered, all court files containing records of judicial proceedings conducted pursuant to the provisions of the Adoption Act and records submitted to the court in the proceedings shall be kept in separate locked files withheld from public inspection. Upon application to the clerk of the court, the records shall be open to inspection by a former parent if the adoptee is eighteen years of age or older, by an adoptee if the adoptee is eighteen years of age or older at the time application is made for inspection, by the adoptive parent if the adoptee is under eighteen years of age at the time application is made for inspection, by the attorney of any party, by any agency that has exercised guardianship over or legal custody of a child who was the adoptee in the particular proceeding, [or] by the department or by an adoptee's sibling; provided that the identity of the former parents and of the adoptee shall be kept confidential unless the former parents and the adoptee have consented to the release of identity. In the absence of consent to release identity, the inspection shall be limited to the following nonidentifying information: (1) the health and medical histories of the adoptee's biological parents; (2) the health and medical history of the adoptee; (3) the adoptee's general family background, including ancestral information, without name references or geographical designations; (4) physical descriptions; and (5) the length of time the adoptee was in the care and custody of persons other than the petitioner. B. After the entry of the decree of adoption, at any time, a former parent may file with the court, with the placing agency or with the department: (1) a consent or refusal or an amended consent or refusal to be contacted; (2) a release of the former parent's identity to the adoptee if the adoptee is eighteen years of age or older or to the adoptive parent if the adoptee is under eighteen years of age; or (3) information regarding the former parent's location or changes in background information. C. The consent or refusal referred to in Subsection B of this section shall be honored by the court, the placing agency or the department, unless for good cause the court orders to the contrary. D. At any time, an adoptee who is eighteen years of age or older may file with the court, a placing agency or the department: (1) information regarding the adoptee's location; or (2) a consent or refusal regarding opening of the adoptee's adoption file to the adoptee's former parents. E. If mutual authorizations for release of identifying information by the parties are not available, an adoptee who is eighteen years of age or older, the biological parents if the adoptee is eighteen years of age or older or the adoptive parents if the adoptee is under the age of eighteen years may file a motion with the court to obtain the release of identifying information for good cause shown. When hearing the motion, the court shall give primary consideration to the best interests of the adoptee, but shall also give due consideration to the interests of the members of the adoptee's former and adoptive families. In determining whether good cause exists for the release of identifying information, the court shall consider: (1) the reason the information is sought; (2) any procedure available for satisfying the petitioner's request without disclosing the name or identity of another individual, including appointment of a confidential intermediary to contact the individual and request specific information; (3) whether the individual about whom identifying information is sought is alive; (4) the preference, to the extent known, of the adoptee, the adoptive parents, the former parents and other members of the adoptee's former and adoptive families and the likely effect of disclosure on those individuals; (5) the age, maturity and expressed needs of the adoptee; (6) the report or recommendation of any individual appointed by the court to assess the request for identifying information; and (7) any other factor relevant to an assessment of whether the benefit to the adoptee of releasing the information sought will be greater than the benefit to any other individual of not releasing the information. F. An adoptee shall have the right, for the purpose of enrolling in the adoptee's tribe of origin, to access information kept by the department. Information needed by an adoptee to enroll in his tribe of origin may be requested from the department by the following persons: (1) the adoptee, after he reaches eighteen years of age; (2) when the adoptee is a child, his adoptive parent or guardian; or (3) an adoptee's descendant or, if the adoptee's descendant is a child, an adult representative for the descendant. G. When the department receives a request for information regarding an adoptee's tribe of origin, the department shall examine its records to determine if the adoptee is of Indian descent. If the department establishes that an adoptee is of Indian descent, the department shall: (1) provide the requestor with the tribal affiliation of the adoptee's biological parents; (2) submit to the tribe information necessary to establish tribal enrollment for the adoptee and to protect any rights flowing from the adoptee's tribal relationship; and (3) provide notice to the requestor of the department's submission of information to the adoptee's tribe." Section 11. Section 32A-5-41 NMSA 1978 (being Laws 1993, Chapter 77, Section 168, as amended) is amended to read: "32A-5-41. APPOINTMENT OF CONFIDENTIAL INTERMEDIARY.-- A. The court may appoint a confidential intermediary to ascertain whether an individual is willing to be contacted, is willing to release his name or identity or is willing to meet or otherwise communicate about any condition that may affect the moving party's physical or mental health, upon petition to the court by: (1) an adoptee who is eighteen years of age or older; (2) an adoptive parent of an adoptee who is less than eighteen years of age; [or] (3) an adoptee's former parent, when the adoptee is eighteen years of age or older; or (4) an adoptee's sibling. B. The confidential intermediary shall make a reasonable effort to determine if the individual whose identity is sought by the petitioner has filed a signed document authorizing or refusing to authorize the release of the individual's name or identity. C. When the confidential intermediary finds a signed authorization for a party to be contacted or for the release of identifying information, the intermediary shall release that information to the petitioner. Upon the petitioner's written request, the intermediary may assist the petitioner in locating the individual who authorized the release of identifying information, in ascertaining whether the individual is willing to meet or communicate with the petitioner and in facilitating a meeting or other communication. D. When the confidential intermediary finds a signed refusal to authorize the release of identifying information, the intermediary shall report this to the petitioner and the court and shall not attempt to locate or contact the individual who has refused to authorize contact or the release of identifying information. The petitioner may then withdraw the petition or request the release of identifying information for good cause shown, pursuant to the provisions of Section 32A-5-40 NMSA 1978. E. When the confidential intermediary does not find any documents concerning the release of identifying information or if the intermediary finds a document indicating that an individual whose identity is sought by the petitioner is undecided about whether to release identifying information, the intermediary shall make a reasonable search for and discreetly contact the individual to ascertain whether the individual is willing to release information to the petitioner or willing to meet or communicate with the petitioner, whom the intermediary may describe to the individual only in general, nonidentifying terms. When the individual consents in writing to the release of information, the intermediary shall release the information to the petitioner, and upon the mutual written request and consent of the petitioner and the individual, the intermediary shall facilitate a meeting or other communication between the petitioner and the individual. If the individual refuses to authorize the release of information sought by the petitioner, the intermediary shall report this to the petitioner and the court and the petitioner may withdraw the motion or file a motion with the court for an order to release identifying information for good cause shown, pursuant to provisions of Section 32A-5-40 NMSA 1978. F. When an individual sought by the confidential intermediary is deceased, the intermediary shall report this to the petitioner and the court and, upon the petitioner's request, the court shall determine on the basis of the factors listed in Section 32A-5-40 NMSA 1978 whether good cause exists to release identifying information about the individual to the petitioner. G. When an individual sought by the confidential intermediary cannot be located within a year, the intermediary shall report this to the petitioner and the court. The court may authorize an additional search for a specified period of time or determine on the basis of the factors listed in Section 32A-5-40 NMSA 1978 whether good cause exists to release identifying information about the individual to the petitioner. H. A confidential intermediary may charge the petitioner for actual expenses incurred in providing a service requested under this section. Upon motion by the intermediary, the court may authorize a reasonable fee in addition to the expenses. I. A confidential intermediary shall complete training provided by the department or any other entity approved by the court and shall file an oath of confidentiality in every court in which the intermediary expects to serve. J. The confidential intermediary oath shall state: "I,__________________________, signing under penalty of perjury, affirm that I have completed the requisite training for a confidential intermediary in this state. I will not disclose to the petitioner, directly or indirectly, any identifying information in sealed records except under the conditions specified in this section. I will conduct a reasonable search for an individual being sought and make a discreet and confidential inquiry as to whether the individual consents to the release of identifying or medical information to the petitioner or to meeting or communicating with the petitioner. I will report to the petitioner or the court the results of my search and inquiry, along with any signed request or consent I receive from the individual. If the individual and the petitioner request and consent in writing to meet or communicate with each other, I will act in accordance with the instructions of the petitioner or the court to facilitate any meeting or communication between them. I will not charge or accept any fee for my services except for reimbursement from the petitioner for actual expenses incurred in performing my services or as authorized by the court. I recognize that unauthorized release of information is a violation of the Adoption Act and subjects me to penalties pursuant to the provisions of Section 32A-5-42 NMSA 1978 and may subject me to being found in contempt of court with penalties, dismissal by the court and civil liability."."". 8. Renumber the succeeding section accordingly. 9. On page 24, between lines 9 and 10, insert the following new section: "Section 8. Section 32A-19-1 NMSA 1978 (being Laws 1993, Chapter 77, Section 228) is amended to read: "32A-19-1. QUALITY ASSURANCE OFFICE.-- A. [By August 1, 1993] The department shall [establish] maintain a quality assurance office under the office of the secretary. B. The purpose of the quality assurance office shall be to [assist] facilitate department efforts to efficiently [achieve] implement the purposes of the Children's Code. C. In order to measure the quality of services provided, to facilitate satisfactory outcomes for children and families that receive services and to provide a continuing opportunity to [change and] improve service delivery, the quality assurance office shall: (1) [establish an accessible] monitor the system for receiving and resolving complaints and grievances; [(2) perform periodic investigations and evaluations to assure compliance with the Children's Code and other applicable state and federal laws and regulations; (3) monitor] (2) facilitate monitoring of indicators of the department's performance [and] to determine whether the department is: (a) providing children and families with individualized, needs-based service plans; (b) providing services in a timely manner; and (c) in compliance with applicable state and federal laws and regulations; [(4)] (3) identify any deficiencies and recommend corrective action to the secretary of the department; [and (5)] (4) have access to any records maintained by the department, including confidential information; and (5) promote continuous improvement of all department processes serving children and families. D. The quality assurance office shall [annually produce] contribute to and facilitate the publication of public reports assessing the performance of the department. The [report] reports shall not disclose the identity of any individual mentioned in the report, including children or families that receive or are eligible for services or any department employee."". 10. Renumber the succeeding section accordingly. Respectfully submitted, __________________________________ Fernando R. Macias, Chairman Adopted_______________________ Not Adopted_______________________ (Chief Clerk) (Chief Clerk) Date ________________________ The roll call vote was 5 For 2 Against Yes: 5 No: Tsosie, McSorley Excused: Sanchez Absent: None H0717JU1 .118658.1