Revision as of 08:46, 5 February 2014

Adoption Laws

Consent to Adoption

Who Must Consent to an Adoption Citation: Ann. Stat. § 32A-5-17

Consent to adoption or relinquishment of parental rights to the department or an agency licensed by the State of New Mexico shall be required of the following:

• The mother
• The proposed adoptive parent
• The presumed father
• The acknowledged father
• The Children, Youth and Families Department or the agency to whom the child has been relinquished that has placed the child for adoption
• The guardian of the child’s parent, when that guardian has express authority to consent to adoption

In any adoption involving an Indian child, consent to adoption by the petitioner or relinquishment of parental rights shall be obtained from an Indian custodian, as required by the provisions of the Federal Indian Child Welfare Act of 1978 (25 U.S.C. § 1901, et seq.).

Consent of Child Being Adopted Citation: Ann. Stat. § 32A-5-21

Consent to adoption shall be required of the child who is age 14 or older and shall be in a writing signed by the child.

When Parental Consent Is Not Needed Citation: Ann. Stat. §§ 32A-5-18; 32A-5-19

A consent to adoption shall be implied by the court if the parent, without justifiable cause, has:

• Left the child without provision for the child’s identification for a period of 14 days
• Left the child with others, including the other parent or an agency, without provisions for support and without communication for a period of:
  • 3 months if the child was under age 6 at the commencement of the 3-month period
  • 6 months if the child was over age 6 at the commencement of the 6-month period

The consent to adoption shall not be required from:

• A parent whose rights with reference to the child have been terminated
• A parent who has relinquished the child to an agency for adoption
• A biological father of a child conceived as a result of rape or incest
• A person who has failed to respond when given notice pursuant to the provisions of § 32A-5-27
• An alleged father who has failed to register with the putative father registry within 10 days of the child’s birth and is not otherwise the acknowledged father

When Consent Can Be Executed Citation: Ann. Stat. § 32A-5-21(G)

No consent to adoption or relinquishment of parental rights shall be valid if executed within 48 hours after the child’s birth.

How Consent Must Be Executed Citation: Ann. Stat. §§ 32A-5-21; 32A-5-23

A consent by a parent shall be in writing and state the following:

• The date, place, and time of execution
• The date and place of birth of the child and any names by which the child has been known
• The identity of the adoptive parent, if known
• That the person executing the consent has been counseled by a certified counselor of the person’s choice and with this knowledge the person is voluntarily and unequivocally consenting
• That the consenting party has been advised of the legal consequences of the consent either by independent legal counsel or a judge
• That the consent to or relinquishment for adoption cannot be withdrawn
• That the person executing the consent waives further notice of the adoption proceedings

In cases when the consent is in English and English is not the first language of the consenting person, the person taking the consent shall certify in writing that the document has been read and explained to the person whose consent is being taken in that person’s first language. That certification will include the name of the person who read and explained the document and that the meaning and implications of the document are fully understood by the person giving the consent.

A consent taken by an individual appointed to take consents by an agency shall be notarized. When a consent is signed in the presence of a judge, it need not be notarized.

The requirements of a consent to adoption or relinquishment of parental rights involving an Indian child and the rights of a parent of an Indian child to withdraw the consent or relinquishment shall be governed by the relevant provisions of the Federal Indian Child Welfare Act.

A consent to adoption or relinquishment of parental rights shall be signed before, and approved on the record by, a judge who has jurisdiction over adoption proceedings within or without this State and who is in the jurisdiction in which the child is present or in which the parent resides at the time it

Revocation of Consent Citation: Ann. Stat. §§ 32A-5-21(I); 32A-5-17

A consent or relinquishment executed by a parent who is a minor shall not be subject to revocation solely by reason of the parent’s minority.

A consent to or relinquishment for adoption shall not be withdrawn prior to the entry of a decree of adoption unless the court finds that the consent or relinquishment was obtained by fraud.

In no event shall a consent or relinquishment be withdrawn after the entry of a decree of adoption.

Criminal Background Checks for Prospective Foster and Adoptive Parents

Requirements for Foster Parents Ann. Stat. § 32A-15-3; Admin. Code §§ 8.8.3.6; 8.8.3.13

Fingerprint-based nationwide criminal history record checks shall be conducted on all prospective foster parents and other adult relatives and nonrelatives residing in the prospective foster parent’s household. The department shall conduct a background check and shall submit the fingerprints to the Department of Public Safety and the FBI for this purpose.

In regulation:Abuse and neglect screens are conducted by licensing authority staff in order to identify those persons who pose a continuing threat of abuse or neglect to minors. An applicant shall be considered an unreasonable risk when he or she has:

• A conviction for a offense involving moral turpitude that directly relates to whether he or she can provide a safe, responsible, and morally positive setting for a child
• A conviction for an offense involving moral turpitude that does not directly relate to whether the applicant can provide a safe, responsible, and morally positive setting if the department determines that the applicant has not been sufficiently rehabilitated
• A conviction, regardless of the degree or date of the crime, of trafficking in controlled substances, criminal sexual penetration, related sexual offenses, or child abuse
• A substantiated referral, regardless of the date, for sexual abuse or for neglect characterized by a failure to protect against sexual abuse

There shall be a determination of unreasonable risk if a background check shows:

• Pending charges for a felony offense, any misdemeanor offense involving domestic violence or child abuse, an arrest but no disposition for any such crime, or a pending referral with the department
• An applicant is wanted for any offense by any law enforcement agency due to a warrant having been issued

Requirements for Adoptive Parents Ann. Stat. § 32A-15-3; Admin. Code §§ 8.8.3.6; 8.26.3.18; 8.8.3.13

Fingerprint-based nationwide criminal history record checks shall be conducted on all prospective adoptive parents and other adult relatives and nonrelatives residing in the prospective adoptive parent’s household. The department shall conduct a background check and shall submit the fingerprints to the Department of Public Safety and the FBI for this purpose.

In regulation: Abuse and neglect screens are conducted by licensing authority staff in order to identify those persons who pose a continuing threat of abuse or neglect to minors.

The results of the Federal and State criminal records checks shall be sent to the department or a State agency authorized by law for such purposes. The department shall forward the results of the Federal and State criminal records checks to the requesting person and to the court if an adoption proceeding has been filed.

No person shall be approved as an adoptive parent whose criminal records checks reveal any convictions for offenses listed in Administrative Code § 8.8.3.13 [see above].

Grounds for Involuntary Termination of Parental Rights

Circumstances That Are Grounds for Termination of Parental Rights Ann. Stat. §§ 32A-4-28; 32A-4-2

The court shall terminate parental rights when:

• The child has been abandoned.
• The child has been neglected or abused, and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts to assist the parent in adjusting the conditions that render the parent unable to properly care for the child.
• The parent has subjected the child to aggravated circumstances.
• 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:
  • The child has lived in the home of others for an extended period of time.
  • The parent-child relationship has disintegrated.
  • A psychological parent-child relationship has developed between the substitute family and the child.
  • If the court deems the child of sufficient capacity to express a preference, the child no longer prefers to live with the natural parent.
  • The substitute family desires to adopt the child.

‘Aggravated circumstances’ include circumstances in which the parent has:

• Attempted, conspired to cause, or caused great bodily harm to the child or great bodily harm or death to the child’s sibling
• Attempted, conspired to cause, or caused great bodily harm or death to another parent, guardian, or custodian of the child
• Attempted, conspired to subject, or subjected the child to torture, chronic abuse, or sexual abuse
• Had his or her parental rights over a sibling of the child terminated involuntarily

Circumstances That Are Exceptions to Termination of Parental Rights Ann. Stat. § 32A-4-29

The Children, Youth and Families Department shall file a motion to terminate parental rights when a child has been in the custody of the department for not less than 15 of the previous 22 months unless:

• 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 3 months, and the child’s return to the parent’s home will be in the child’s best interests.
• 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.
• The child is age 14 or older, is firmly opposed to termination of parental rights, and is likely to disrupt an attempt to place him with an adoptive family.
• A parent is terminally ill but in remission and does not want his or her parental rights to be terminated, and the parent has designated a guardian for his or her child.
• 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 90 days unless there is a final court determination that the child cannot be placed in a family setting.
• Grounds do not exist for termination of parental rights.
• The child is an unaccompanied, refugee minor, and the situation regarding the child involves international legal issues or compelling foreign policy issues.
• Adoption is not an appropriate plan for the child.
• 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 interests.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Home Study Requirements for Prospective Parents in Domestic Adoption

Who Must Be Studied Citation: Ann. Stat. § 32A-5-14

The petitioner(s), the petitioner’s children, and any other permanent residents of the petitioner’s home shall be included in the study.

Agency or Person Conducting the Study Citation: Ann. Stat. § 32A-5-13

The preplacement study shall be conducted by an agency or a person certified by the department to conduct the study.

Qualifications for Adoptive Parents Citation: Admin. Code § 8.26.4.12

All adoptive applicants are assessed for their suitability to care for children who might be placed in their home.

In addition to a criminal records check and abuse and neglect checks, the applicants shall provide proof of the applicant’s U.S. citizenship such as a Social Security card, or proof of permanent residency such as a green card.

Elements of a Home Study Citation: Ann. Stat. §§ 32A-5-14; 32A-5-14.1

The preplacement study shall include at a minimum the following:

• An individual interview with each petitioner
• A joint interview with both petitioners
• A home visit that includes an interview with the petitioner’s children and any other permanent residents of the home
• An interview with the adoptive child, if age appropriate
• An individual interview with each of the adoptive child’s parents
• Full disclosure to the petitioner
• An exploration of the petitioners’ philosophy concerning discussion of adoption issues with the adoptive child
• The initiation of a criminal records check of each petitioner
• A medical certificate dated no more than 1 year prior to any adoptive placement assessing the petitioner’s health as it relates to the petitioner’s ability to care for the adoptive child
• A minimum of three letters of reference from individuals named by the petitioner
• A statement of the capacity and readiness of the petitioner for parenthood and the petitioner’s emotional and physical health and ability to shelter, feed, clothe, and educate the adoptive child
• Verification of the petitioner’s employment, financial resources, and marital status
• A report of a medical examination performed on the adoptive child within 1 year prior to the proposed adoptive placement
• A statement of the results of any prior preplacement study

A fingerprint-based nationwide criminal history records check shall be conducted on a person who files a petition to adopt a child.

Grounds for Withholding Approval Citation: Admin. Code §§ 8.26.4.19: 8.8.3.13

An applicant’s request for licensure may be denied based on a documented professional assessment that the applicant cannot adequately provide safety, permanency, and well-being for children.

For the purpose of these regulations, the following information shall result in a conclusion that the applicant is an unreasonable risk:

• A conviction for a felony or a misdemeanor involving moral turpitude and the criminal conviction directly relates to whether the applicant can provide a safe, responsible, and morally positive setting
• A conviction for a felony or a misdemeanor involving moral turpitude and the criminal conviction does not directly relate to whether the applicant can provide a safe, responsible, and morally positive setting if the department determines that the applicant so convicted has not been sufficiently rehabilitated
• A conviction, regardless of the degree of the crime or the date of the conviction, of trafficking in controlled substances, criminal sexual penetration, related sexual offenses, or child abuse
• A substantiated referral, regardless of the date, for sexual abuse or for neglect characterized by a failure to protect against sexual abuse

When Studies Must Be Completed Citation: Ann. Stat. § 32A-5-13

A preplacement study that has been prepared or updated within 1 year immediately prior to the date of placement, approving the petitioner as an appropriate adoptive parent, shall be filed with the court prior to issuance of a placement order.

Postplacement Study Requirements Citation: Ann. Stat. § 32A-5-31; Admin. Code § 8.26.3.32

A postplacement report shall include the following:

• The interaction between the adoptive child and petitioner
• The adjustment of the child since placement
• The integration and acceptance of the child in the petitioner’s family
• The petitioner’s ability to meet the physical and emotional needs of the child
• Whether the adoptive home is a suitable home for the child
• Whether the adoption is in the best interests of the child
• The type and frequency of postplacement services given to the petitioner

The postplacement report shall contain an evaluation of the proposed adoption with a recommendation as to the granting of the petition for adoption.

The investigation for the postplacement report shall be conducted by the department, an agency, or an investigator. The department, agency, or investigator shall observe the adoptive child and interview the petitioner in the petitioner’s home as soon as possible after the receipt of notice of the action, but in any event within 30 days. For an adoptive child who is younger than age 1 at the time of placement, a written report with the court within 60 days from receipt of notice of the proceeding. For an adoptive child who is age 1 or older at the time of placement, the written report shall be filed within 120 days.

In regulation: Appropriate postplacement services shall be provided to the adoptive child and the prospective adoptive family from the time of the child’s placement until the postplacement report is filed. At a minimum, the following services shall be provided:

• Contact shall be made with the prospective adoptive family personally or by telephone within 48 hours after placement.
• A home visit shall be made within 3 working days of placement.
• Additional visits shall be made every other month thereafter until the postplacement report is filed.

Exceptions for Stepparent or Relative Adoptions Citation: Ann. Stat. §§ 32A-5-14; 32A-5-31; Admin. Code § 8.26.3.33

Unless directed by the court, the preplacement and postplacement studies are not required in cases in which the child is being adopted by a stepparent, a relative, or a person named in the child’s deceased parent(s)’ will.

In regulation:When the adoptive child has lived with the stepparent for more than 1 year but less than 2 years since the stepparent’s marriage to the custodial parent, counseling shall be required for both the stepparent and the custodial parent. When the child has lived with the stepparent for more than 2 years since the stepparent married the custodial parent, neither the custodial parent nor the stepparent shall be required to receive counseling, but they should be encouraged to receive counseling.

The noncustodial parent shall receive counseling regardless of the duration of the stepparent marriage. If the adoptive child is age 10 or older, the child shall receive counseling in all stepparent adoptions.

In all stepparent adoptions, the stepparent shall obtain a criminal records check.

Requirements for Interjurisdictional Placements Citation: Ann. Stat. § 32A-11-1

Any out-of-home placement of a child outside the State is subject to the provisions of the Interstate Compact on the Placement of Children.

The child shall not be sent into the receiving State until the appropriate public authorities in the receiving State notify the sending agency, in writing, that the proposed placement does not appear to be contrary to the interests of the child.

Foster to Adopt Placements Citation: Admin. Code § 8.26.2.23

The Protective Services Division (PSD) shall attempt to place foster children with concurrent plans of adoption in foster homes that have been identified as concurrent families. PSD completes the preplacement home study for foster parents and treatment foster parents who have been selected as adoptive parents for children in PSD custody.

Infant Safe Haven Laws

Infant’s Age Citation: Ann. Stat. § 24-22-3

An infant may be relinquished. The term ‘infant’ means a child no more than 90 days old, as determined within a reasonable degree of medical certainty.

Who May Relinquish the Infant Citation: Ann. Stat. § 24-22-3

Any person may relinquish an infant.

Who May Receive the Infant Citation: Ann. Stat. § 24-22-3

The staff of a licensed hospital or health-care clinic may receive the infant.

Responsibilities of the Safe Haven Provider Citation: Ann. Stat. §§ 24-22-3; 24-22-4

A hospital shall accept an infant who is left at the hospital in accordance with the provisions of the Safe Haven for Infants Act. Upon receiving an infant, the hospital may provide the person leaving the infant with:

• Information about adoption services, including the availability of private adoption services
• Brochures or telephone numbers for agencies that provide adoption services or counseling services
• Written information regarding whom to contact at the Children, Youth, and Families Department if the parent decides to seek reunification with the infant

A hospital shall ask the person leaving the infant whether the infant has a parent who is either a member of an Indian Tribe or is eligible for membership in an Indian Tribe, but the person leaving the infant is not required to provide that information to the hospital.

Immediately after receiving an infant, a hospital shall inform the Children, Youth, and Families Department that the infant has been left at the hospital. The hospital shall provide the department with all available information regarding the child and the parents, including the identity of the child and the parents, the location of the parents, and the child’s medical records.

Immunity for the Provider Citation: Ann. Stat. § 24-22-8

A hospital and its staff are immune from criminal liability and civil liability for accepting an infant in compliance with the provisions of the Safe Haven for Infants Act but not for subsequent negligent medical care or treatment of the infant.

Protection for Relinquishing Parent Citation: Ann. Stat. § 24-22-3

A person may leave an infant with the staff of a hospital without being subject to criminal prosecution for abandonment or abuse if the infant is left in a condition that would not constitute abandonment or abuse of a child.

A hospital may ask the person leaving the infant for the name of the infant’s biological father or biological mother, the infant’s name, and the infant’s medical history, but the person leaving the infant is not required to provide that information to the hospital.

Effect on Parental Rights Citation: Ann. Stat. §§ 24-22-5; 24-22-7

The Children, Youth, and Families Department shall be deemed to have emergency custody of an infant who has been left at a hospital according to the provisions of the Safe Haven for Infants Act. Upon receiving a report of an infant left at a hospital, the department shall immediately conduct a child abuse and neglect investigation.

When an infant is taken into custody by the department, the department shall make reasonable efforts to determine whether the infant is an Indian child. If the infant is an Indian child:

• The child’s Tribe shall be notified.
• Preadoptive placement and adoptive placement of the Indian child shall be in accordance with the provisions of § 32A-5-5 regarding Indian child placement preferences.

A person established as a parent of an infant previously left at a hospital shall have standing to participate in all proceedings regarding the child. If a person not previously established as a parent seeks reunification with an infant previously left at a hospital and the person’s DNA indicates parentage of the infant, that person shall have standing to participate in all proceedings regarding the infant.

Regulation of Private Domestic Adoption Expenses

Birth Parent Expenses Allowed Citation: Ann. Stat. § 32A-5-34(B)

A prospective adoptive parent, or a person acting on behalf of a prospective adoptive parent, shall make payments for services relating to the adoption or to the placement of the child for adoption for allowed expenses only to third-party vendors as is reasonably practical. These payments shall consist of reasonable and actual fees or charges for:

• Medical, hospital, nursing, pharmaceutical, traveling, or other similar expenses incurred by a mother or the child to be adopted in connection with the birth or any illness of the child
• Reasonable counseling services relating to the adoption
• Living expenses of a mother and her dependent children, including the child to be adopted, for a reasonable time before or after the child’s birth or placement
• Expenses incurred for the purposes of full disclosure
• Any legal service performed for a parent who consents to the adoption of a child or relinquishes the child to an agency
• Any other service or expense the court finds is reasonably necessary for services relating to the adoption or to the placement of the child for adoption

Birth Parent Expenses Not Allowed Citation: Ann. Stat. § 32A-5-34(B), (C)

The following payments are not permitted:

• Living expenses beyond 6 weeks after the child’s birth
• Any payments other than those permitted by statute

Allowable Payments for Arranging Adoption Citation: Ann. Stat. § 32A-5-12

All placements must be made by the Children, Youth, and Families Department, an agency, or, in the case of an independent adoption, by order of the court.

Allowable Payments for Relinquishing Child Citation: Ann. Stat. § 32A-5-34(D)

It is unlawful for any person to threaten or coerce a parent to complete the relinquishment of parental rights or to complete the consent to an adoption by demanding repayment of expenses.

Allowable Fees Charged by Department/Agency Citation: Ann. Stat. § 32A-5-34(B)

A prospective adoptive parent shall make payments for reasonable and actual fees or charges for:

• The services of an agency in connection with an adoption
• Legal services, court costs, traveling, or other administrative expenses connected with an adoption
• Preparation of a preplacement study and of a postplacement report during the pendency of the adoption proceeding

Accounting of Expenses Required by Court Citation: Ann. Stat. § 32A-5-34(A)

Prior to the final hearing on the adoption petition, the petitioner shall file a full accounting of all disbursements of anything of value made or agreed to be made in connection with the adoption. The accounting report shall be signed under penalty of perjury. The accounting report shall be itemized in detail and show the services reasonably relating to the adoption or to the placement of the child for adoption that were received by the parents of the child, by the child, or by or on behalf of the petitioner. The report shall also include the dates of each payment and the names and addresses of each attorney, physician, hospital, licensed adoption agency, or other person or organization who received any funds or any other thing of value from the petitioner in connection with the adoption or placement of the child.

The Rights of Unmarried Fathers

Legal Definition of Father Ann. Stat. § 32A-5-3

The term ‘acknowledged father’ means a father who:

• Acknowledges paternity of the adoptee pursuant to the putative father registry
• Is named, with his consent, as the child’s father on the child’s birth certificate
• Is obligated to support the child under a written voluntary promise or pursuant to a court order
• Has openly held out the child as his own child by establishing a custodial, personal, or financial relationship with the child

The term ‘alleged father’ means an individual whom the birth mother has identified as the biological father, but the individual has not acknowledged paternity or registered with the putative father registry.

The term ‘presumed father’ means:

• The husband of the biological mother at the time the child was born
• An individual who was married to the mother and either the child was born during the term of the marriage or 300 days after the marriage was terminated
• Before the child’s birth, an individual who attempted to marry the child’s mother, although the attempted marriage is or could be declared invalid and if the attempted marriage:
  • Could be declared invalid only by a court, the child was born during the attempted marriage or within 300 days after its termination
  • Is invalid without a court order, the child was born within 300 days after the termination of cohabitation

Paternity Registry Ann. Stat. § 32A-5-20

A putative father registry shall be established by the Department of Health to record the names and addresses of:

• Any person adjudicated by a court of this State to be the father of a child
• Any person who has filed with the registry, before or after birth of a child out of wedlock, a notice of intent to claim paternity of the child
• Any person who has filed with the registry an instrument acknowledging paternity
• Any person adjudicated by a court of another State or territory of the United States to be the father of an out-of-wedlock child, when a certified copy of the court order has been filed with the registry

An unrevoked notice of intent to claim paternity of a child may be introduced in evidence by any party in any proceeding in which that fact may be relevant.

Alternate Means to Establish Paternity Ann. Stat. § 24-14-13

At or before the birth of a child to an unmarried woman, the person in charge of the institution, a designated representative, the attending physician, or the midwife shall provide an opportunity for the child’s mother and natural father to complete an acknowledgment of paternity. The completed affidavit shall be filed with the Vital Statistics Bureau of the Public Health Division of the department. The acknowledgment shall contain or have attached to it:

• A sworn statement by the mother consenting to the assertion of paternity
• A sworn statement by the father that he is the natural father of the child
• Written information, furnished by the Human Services Department, explaining the implications of signing, including legal parental rights and responsibilities
• The Social Security numbers of both parents

Required Information Ann. Stat. § 32A-5-20

A person filing a notice of intent to claim paternity of a child or an acknowledgment of paternity shall include in the notice the following:

• His name
• His current address
• The mother’s name and any other identifying information requested by the Department of Health
• The child’s name, if known, and any other identifying information requested by the Department of Health

If the person filing the notice of intent to claim paternity of a child or acknowledgment changes his address, the person shall notify the Department of Health of his new address.

Revocation of Claim to Paternity Ann. Stat. § 32A-5-20

A person who has filed a notice of intent to claim paternity may at any time revoke a notice previously filed. Upon receipt by the registry of the notice of revocation, the revoked notice of intent to claim paternity shall be deemed a nullity nunc pro tunc.

Access to Information Ann. Stat. § 32A-5-20

The Department of Health shall, upon request, provide the names and addresses of persons listed with the registry to:

• Any court
• The department or an agency
• The petitioner’s attorney
• The mother of the child

The information shall not be divulged to any other person, except upon order of the court for good cause shown. If the registry has not received a notice of intent to claim paternity or an acknowledgment of paternity, the Department of Health shall provide a written statement to that effect to the person making the inquiry.

Use of Advertising and Facilitators in Adoptive Placements

Use of Advertisement

This issue is not addressed in the statutes reviewed.

Use of Intermediaries/Facilitators Citation: Ann. Stat. § 32A-5-42(A)

No person, other than an agency, may select an adoptive family for a prospective adoptee or arrange for the selection.

The exchange of information between persons regarding the existence of a potential adoptee or adoptive family is not prohibited.

Who May Adopt, Be Adopted, or Place a Child for Adoption?

Who May Adopt Citation: Ann. Stat. § 32A-5-11

Residents who are one of the following may adopt:

• Any individual who has been approved by the court as a suitable adoptive parent
• A married individual without the individual’s spouse joining in the adoption if:
  • The nonjoining spouse is a parent of the adopted person.
  • The individual and the nonjoining spouse are legally separated.
  • The failure of the nonjoining spouse to join in the adoption is excused for reasonable circumstances as determined by the court.

Nonresidents may adopt in New Mexico if the adopted person is a resident of or was born in New Mexico but is less than 6 months of age and was placed by the department or an agency licensed by the State of New Mexico.

Who May Be Adopted Citation: Ann. Stat. §§ 32A-5-11; 32A-5-5

Any child may be adopted.

An Indian child should be placed with:

• His or her extended family
• Members of his or her Tribe
• Other Indian families

Who May Place a Child for Adoption Citation: Ann. Stat. § 32A-5-12

A child may be placed for adoption by any of the following:

• The Children, Youth and Families Department
• An appropriate public authority of another State
• An agency
• A court order
• The parent

A parent may arrange an independent placement for his or her child pursuant to § 32A-5-13. In such case, the petitioner must file a request with the court to allow the placement. A preplacement study will be required. An exception to these requirements is made when:

• A stepparent seeks to adopt the child, and prior to the filing of the adoption petition, the child has lived with the stepparent for at least 1 year since the marriage of the stepparent to the custodial parent, and the family has received counseling.
• A relative within the fifth degree of consanguinity to the child or that relative’s spouse seeks to adopt the child, and, prior to the filing of the adoption petition, the child has lived with the relative or the relative’s spouse for at least 1 year.
• A person designated to care for the child in the will of the child’s deceased parent seeks to adopt the child, and, prior to the filing of the adoption petition, the child has lived with that person for at least 1 year.

Post-Adoption Laws

Access to Adoption Records

Who May Access Information Citation: Ann. Stat. § 32A-5-40

Information may be accessed by:

• The adopted person who is age 18 or older
• The birth parent if the adopted person is age 18 or older
• The adoptive parent of an adopted person under age 18
• An adopted person’s birth sibling
• A guardian
• An attorney for any party

Access to Nonidentifying Information Citation: Ann. Stat. § 32A-5-40

Unless the birth parent and the adopted person have consented to the release of their identities, inspection of records is limited to nonidentifying information. This includes:

• The health and medical histories of the birth parents and the adopted person
• General family background
• Physical descriptions
• The length of time the adopted person was in the care and custody of persons other than the adoptive parents

Mutual Access to Identifying Information Citation: Ann. Stat. §§ 32A-5-40; 32A-5-41

At any time after the entry of the decree of adoption, a birth parent may file:

• Consent or refusal to be contacted
• Release of the birth parent’s identity to the adult adopted person or to the adoptive parent of a minor adopted person
• Information regarding the birth parent’s location or changes in background information

At any time, an adult adopted person may file information regarding his or her location and consent or refusal regarding opening of his or her adoption file to his or her birth parents.

If mutual authorizations for release of identifying information by the parties are not available, an adult adopted person, the birth parents, or the adoptive parents if the adopted person is a minor 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 adopted person, but shall also give due consideration to the interests of the members of the adopted person’s birth and adoptive families. The court may assign a confidential intermediary to ascertain needed information.

An adopted person shall have the right to access information to enroll in his or her Tribe of origin. If the department establishes that an adopted person is of Indian descent, the department shall:

• Provide the requester with the Tribal affiliation of the adopted person’s birth parents
• Submit to the Tribe information necessary to establish Tribal enrollment for the adopted person and to protect any rights flowing from the adopted person’s Tribal relationship
• Provide notice to the requester of the department’s submission of information to the adopted person’s Tribe

Access to Original Birth Certificate Citation: Ann. Stat. § 24-14-17

The original birth certificate is available only upon order of the court.

Where the Information Can Be Located

New Mexico Department of Children, Youth and Families

Intestate Inheritance Rights for Adopted Persons

Birth Parents in Relation to Adopted Person Citation: Ann. Stat. § 45-2-114

A parent is barred from inheriting from or through a child of the parent if:

• The parent’s parental rights were terminated and the parent-child relationship was not judicially re-established.
• The child died before reaching age 18, and there is clear and convincing evidence that immediately before the child’s death the parental rights of the parent could have been terminated on the basis of nonsupport, abandonment, abuse, neglect, or other actions or inactions of the parent toward the child.

For the purpose of intestate succession from or through the deceased child, a parent who is barred from inheriting under this section is treated as if the parent predeceased the child.

Adoptive Parents in Relation to Adopted Person Citation: Ann. Stat. §§ 32A-5-37; 45-2-114

The adopted person and adopting parent(s) shall have all rights and be subject to all of the duties of the parent-child relationship upon adoption, including the right of inheritance from and through each other. For purposes of intestate succession, an adopted individual is the child of his or her adopting parent(s).

Adopted Persons Who Are Not Included in a Will Citation: Ann. Stat. §§ 45-2-302; 45-2-705

If a testator fails to provide in his or her will for child who was adopted after the execution of the will, the omitted after-adopted child receives a share in the estate as follows:

• If the testator had no child living when he or she executed the will, an omitted after-adopted child receives a share in the estate equal in value to what the child would have received had the testator died intestate, unless the will gave all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to inherit under the will.
• If the testator had one or more children living when he or she executed the will, and the will gave property or an interest in property to one or more of the then-living children, an omitted after-adopted child is entitled to share in the testator’s estate as follows:
  • The portion of the estate that the omitted after-adopted child is entitled to share is limited to bequests made to the testator’s then-living children under the will.
  • The omitted after-adopted child is entitled to receive the share of the estate, as limited above, that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom bequests were made under the will and had given an equal share of the estate to each child.

The above does not apply if:

• If it appears from the will that the omission was intentional.
• The testator provided for the omitted after-adopted child by transfer outside the will with the intent that the transfer be in lieu of a testamentary provision.

Adopted individuals and their respective descendants, if appropriate to the class, are included in class gifts and other terms of relationship in accordance with the rules for intestate succession.

Postadoption Contact Agreements Between Birth and Adoptive Families

What may be included in postadoption contact agreements? Ann. Stat. § 32A-5-35

An agreement for postadoption contact shall, absent a finding to the contrary, be presumed to be in the best interests of the child and shall be included in the decree of adoption.

The agreement may include contact between siblings and the adoptee on a finding that it is in the best interests of the adoptee and the adoptee’s siblings and a determination that the siblings’ parent, guardian, or custodian has consented.

The contact may include exchange of identifying or nonidentifying information or visitation between the parents or the parents’ relatives or the adoptee’s siblings and the petitioner or visitation between the parents or the parents’ relatives or the adoptee’s siblings and the adoptee. An agreement entered into pursuant to this section shall be considered an open adoption.

Every such agreement shall contain a clause that the parties agree to the continuing jurisdiction of the court and to the agreement and understand and intend that any disagreement or litigation regarding the terms of the agreement shall not affect the validity of the relinquishment of parental rights, the adoption or the custody of the adoptee.

Who may be a party to a postadoption contact agreement? Ann. Stat. § 32A-5-35

The parents of the adoptee and the petitioner may agree to contact between the parents and the petitioner or contact between the adoptee and one or more of the parents or contact between the adoptee and relatives of the parents.

What is the role of the court in postadoption contact agreements? Ann. Stat. § 32A-5-35

The court may appoint a guardian ad litem for the child, particularly when visitation between the birth family and the child is included in an agreement. The court shall adopt a presumption in favor of appointing a guardian ad litem for the adoptee. However, this requirement may be waived by the court for good cause shown.

If the child is age 14 or older, the court may appoint an attorney for the child. In determining whether the agreement is in the child’s best interests, the court shall consider the child’s wishes, but the wishes of the child shall not control the court’s findings as to the child’s best interests.

Are agreements legally enforceable? Ann. Stat. § 32A-5-35

The court shall retain jurisdiction after the decree of adoption is entered if the decree contains an agreement for contact, for the purpose of hearing motions brought to enforce or modify an agreement entered into pursuant to the provisions of this section.

How may an agreement be terminated or modified? Ann. Stat. § 32A-5-35

The court shall not grant a request to modify the agreement unless the moving party establishes that there has been a change of circumstances and the agreement is no longer in the child’s best interests.

Laws Related to Intercountry Adoption

Effect and Recognition of a Foreign Adoption Decree

Ann. Stat. § 32A-5-39

Every decree or order of adoption entered by a court or other entity in another country acting pursuant to that country’s law or pursuant to any convention, treaty, or intercountry adoption that the United States has ratified shall be recognized in this State, so that the rights and obligations of the parties as to matters within the jurisdiction of this State shall be determined as though the decree or order of adoption were issued by the courts of this State.

A convention adoption in a foreign country that is certified by the U.S. Secretary of State shall be recognized as a final adoption in this State.

Readoption After an Intercountry Adoption

Ann. Stat. § 32A-5-26(O) & (P)

A petition for adoption shall be filed and verified by petitioner alleging all items in § 32A-5-26(A)-(N). However, if the adoptee is foreign-born, copies of the child’s passport and U.S. visa, along with all documents demonstrating that the adoptee is legally free for adoption, including a certificate from the U.S. Secretary of State that certifies whether the adoption is a convention adoption, must accompany the petition. A petition alleging a convention adoption shall also allege that:

• The country in which the child has been residing is a party to the Hague Convention on Intercountry Adoption.
• The agency or person who is providing the adoption service has been approved as an accrediting entity.
• The certificate issued by the U.S. Secretary of State that certifies the adoption as a convention adoption has been filed with the court.

Application for a U.S. Birth Certificate

Ann. Stat. § 32A-5-38

Within 30 days after an adoption decree becomes final, the petitioner shall prepare an application for a birth certificate in the new name of the adoptee, showing the petitioner as the adoptee’s parent, and shall submit the application to the clerk of the court and the State Registrar of Vital Statistics.

In the case of the adoption of a person born outside the United States, if requested by the petitioner, the court shall make findings, based on evidence from the petitioner and other reliable State or Federal sources, on the date and place of birth of the adopted child. These findings shall be certified by the court and included with the application for a birth certificate.

The State Registrar of Vital Statistics shall prepare a birth record in the new name of the adopted child in accordance with the vital statistics laws but subject to the requirements of the Adoption Act as to the confidentiality of adoption records.

References

Template:Reflist

Sources

Child Welfare Information Gateway. "State Recognition of Intercountry Adoptions Finalized Abroad." State Statute Series. [1] Published 2011.

Child Welfare Information Gateway. "Collection of Family Information About Adopted Persons and Their Birth Families." [2] Published 2012

Child Welfare Information Gateway. "Consent to Adoption." [3] Published 2013

Child Welfare Information Gateway. "Criminal Background Checks for Prospective Foster and Adoptive Parents." [4] Published 2011j

Child Welfare Information Gateway. "Grounds for Involuntary Termination of Parental Rights." [5] Published 2013

Child Welfare Information Gateway. "Home Study Requirements for Prospective Parents in Domestic Adoption." [6] Washington, DC: US Department of Health and Human Services, Children's Bureau. Published 2012

Child Welfare Information Gateway. "Infant Safe Haven Laws." [7] Washington, DC: US Department of Health and Human Services, Children's Bureau. Published 2013

Child Welfare Information Gateway. "Regulation of Private Domestic Adoption Expenses." [8] Washington, DC: US Department of Health and Human Services, Children's Bureau. Published 2013

Child Welfare Information Gateway. "The Rights of Unmarried Fathers." Washington, DC: US Department of Health and Human Services, Children's Bureau. [9] Published 2010

Child Welfare Information Gateway. "Use of Advertising and Facilitators in Adoptive Placements." Washington, DC: US Department of Health and Human Services, Children's Bureau. [10] Published 2012

Child Welfare Information Gateway. "Who May Adopt, Be Adopted, or Place a Child for Adoption?." Washington, DC: US Department of Health and Human Services, Children's Bureau. [11] Published 2012