N. M. S. A. 1978, ? 32A-4-29
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West's New Mexico Statutes Annotated Currentness
Chapter 32A. Children's Code (Refs & Annos)
Article 4. Child Abuse and Neglect (Refs & Annos)
? 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.
The moving party shall also file a motion for court-ordered
mediation between the parent and any prospective adoptive parent to
discuss an open adoption agreement. If an open adoption agreement
is reached at any time before termination of parental rights, it shall be made a part of the court record.
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 the child with an adoptive family;
(4)
a parent is terminally ill, but in remission, and does not want
parental rights to be terminated; provided that the parent has
designated a guardian for the 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;
(8) adoption is not an appropriate plan for the child; or
(9)
the parent's incarceration or participation in a court-ordered
residential substance abuse treatment program constitutes the primary
factor in the child's placement in substitute care and termination of
parental rights is not in the child's best interest.
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.
M. When the court denies a motion to terminate parental rights, the court shall issue
appropriate orders immediately. The court shall direct the
parties to file a stipulated order and interim plan or a request for
hearing within thirty days of the date of the hearing denying the
termination of parental rights.