2005 CHILDREN’S CODE REVISIONS

ARTICLE 5

ADOPTION ACT

32A-5-3. Definitions.

A. "accrediting entity" definition was clarified by adding “of 2000” after “Intercountry Adoption Act”

H. “consent” was expanded by the addition of paragraph (3) which provides that “consent” includes a document “signed by the adoptee if the child is fourteen years of age or older”

L. “foreign born child” was inserted as new Subsection L with the following subsections redesignated accordingly. Foreign born child means “any child not born in the United States who is not a citizen of the United States”.

32A-5-7. Clerk of the court; duties. Subsection F was amended and Subsection Gadded to accurately reflect the current practicewhereby the clerk of the court certifies theCertificate of Adoption and the attorney for thePetitioner forwards the Certificate to the vitalstatistics office of the place where the adopteewas born.

32A-5-7. Clerk of the court; duties. – cont’d

“F. The clerk of the court shall provide a certificate of adoption with an adoptee’s new name.

G. The attorney for the petitioner shall forward the certificate of adoption provided for in Subsection F of this section as follows:

(1) for a person born in the United States, to the appropriate vital statistics office of the place, if known, where the adoptee was born; or

(2) for all other persons, to the state registrar of vital statistics.”

32A-5-8. Confidentiality of records. Subsection D was redesignated as Subsection E and a new

Subsection D was inserted which adds a sanction for

violating confidentiality requirements of the Adoption Act.

“D. A person who intentionally and unlawfully

releases any information or records closed to the

public pursuant to the Adoption Act or releases or

makes other unlawful use of records in violation of the

act is guilty of a petty misdemeanor and shall be

sentenced pursuant to the provisions of Section 31-19-1

NMSA 1978.”

32A-5-13. Independent adoptions; request for placement; placement order; certification.

Subsection B was amended to include a provision requiring a pre-placement study to have been preparedor updated within one year immediately prior tothe date of placement.

“B. Only a pre-placement study that has been prepared or updated within one year immediately prior to the date ofplacement, approving the petitioner as an appropriateadoptive parent, shall be filed with the court prior to issuanceof a placement order, except as provided in Subsection C ofSection 32A-5-12 NMSA 1978.”

32A-5-14.1. Criminal history records check; background checks.

Subsection A was amended to reflect changes in

the federal Child Abuse Prevention and Treatment

Act, which requires criminal records checks for all

adults living in the home of a prospective adoptive

or foster parent.

32A-5-14.1. Criminal history records check; background checks. – cont’d

“A. A nationwide criminal history records

check shall be conducted on a person who files

a petition to adopt a child, on prospective foster

parents and on other adults residing in the

prospective adoptive or foster parent’s

household. . . .”

32A-5-17. Persons whose consents or relinquishments are required.

Subsection A (1) was amended by raising the age

at which a child’s consent is required from ten to

fourteen.

Subsection A (3) change “adoptive father” to

“proposed adoptive parent”.

32A-5-17. Persons whose consents or relinquishments are required. – cont’d

“A. Consent to adoption or relinquishment of parental rights to thedepartment or an agency licensed by the state of new Mexico shall berequired of the following:

(1) the adoptee, if fourteen years of age or older, except whenthe court finds that the adoptee does not have the mental capacity to giveconsent;

. . .

(3) the adoptee’s proposed adoptive parent;

. . .”

32A-5-21. Form of consent or relinquishment.

Subsection A was amended by adding a new

paragraph (7) and by redesignating the following

paragraphs.

Subsection B was amended by changing the age

of consent from ten to fourteen.

32A-5-21. Form of consent or relinquishment. – cont’d

A. Except when consent or relinquishment is

implied, a consent or relinquishment by a parent

shall be in writing, signed by the parent consenting or

relinquishing and shall state the following:

. . .

“(7) if the adoption is closed, that all parties

understand that the court will not enforce any contact,

regardless of any informal agreements that have [been]

made between the parties.”

32A-5-21. Form of consent or relinquishment. – cont’d

“B. The consent of an adoptee, if

fourteen years of age or older, shall be in

writing, signed by the adoptee consenting to the

adoption and shall state the following:

. . .”

*

32A-5-23. Persons who may take consents or relinquishments.

Subsection A was amended requiring that consents and

relinquishments shall be taken before a judge and on

the record.

“A. 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 is signed.”

32A-5-23. Persons who may take consents or relinquishments. – cont’d

* [Note that 32A-5-21 F was not amended and

addresses the need to notarize a consent or

relinquishment taken “by an individual appointed

to take consents or relinquishments by an

agency.”

32A-5-24. Relinquishments to the department.

A new subsection D was added requiring that the

relinquishment must contain a provision that no

agreement for contact with the child will be enforced

by the courts unless the parties have agreed to an

open adoption.

32A-5-24. Relinquishments to the department. – cont’d

“D. When a parent relinquishes the parent’s rights under this section, the parent shall be notified thatno contact will be enforced by the court, regardless of anyinformal agreement, unless the parties have agreed to anopen adoption pursuant to Section 32A-5-35 NMSA 1978.The consent for relinquishment shall be in writing andshall state that the parties understand that any informalagreement allowing contact will not be enforced by thecourts.”

32A-5-34. Fees and charges; damages.

Subsection A was amended to require that servicesreceived by the biological parents or the adoptee mustBe “reasonably” related to the adoption. The intent is toassure that children are not being sold to the highestbidder.

“A. . . .The accounting report shall be itemized in detail and shall show the services reasonably relating tothe adoption or to the placement of the child for adoptionthat were received by the parents of the child, by thechild or by or on behalf of the petitioner. . . .”

32A-5-35. Open adoptions.

Open adoptions should generally be encouraged, as

many children benefit from having information about their

birth family or by having contact with their birth family.

A provision is added at the end of Subsection A clarifying

that an agreement under this section shall be considered

an open adoption. The intent is to make it clear to birth

parents that informal agreements are not enforceable.

[See amendments to §§ 32A-5-21and 32A-5-24]

32A-5-35. Open adoptions.- cont’d

Subsection B was amended to allow the court, forgood cause, to waive the appointment of aguardian ad litem when visitation between thebiological family and the adoptee is agreed to.

Subsection B now provides for the appointment of anattorney for a prospective adoptee who is fourteen years ofage or older.

A provision is added to Subsection B specifying that the duties of the GAL or child’s attorney end upon the filing ofthe Decree of Adoption, unless otherwise ordered by thecourt.

32A-5-35. Open adoptions.- cont’d

Subsection D was amended by deleting

the final sentence which provides:

“The provision of this subsection shall not

apply to a biological parent who has

voluntarily relinquished parental rights and

consented to the adoption.”

32A-5-35. Open adoptions.- cont’d

“A. . . . An agreement entered into pursuant to this

section shall be considered an open adoption.”

“B. . . .The court shall adopt a presumption in favor of appointing a guardian ad litem for the adoptee whenvisitation between the biological family and the adoptee isincluded in an agreement; however, this requirement may bewaived by the court for good cause shown. . . . If the child isfourteen years of age or older, the court may appoint anattorney for the child. . . . The duties of the guardian ad litemor child’s attorney end upon the filing of the decree, unlessotherwise ordered by the court.”

32A-5-37. Status of adoptee and petitioner upon entry of decree of adoption.

Subsection A was amended by (a) changing the

child’s age of consent to a name change in a

step-parent adoption from ten to fourteen and (b)

clarifying that the name change does not need to

be requested in the petition.

32A-5-37. Status of adoptee and petitioner upon entry of decree of adoption. – cont’d

“A. Once adopted, and adoptee shall take a name designated by the petitioner, except in stepparent adoptions. In stepparent adoptions, the adoptee shall take the new name designated by the petitioner in the petition so long as the petitioner’s spouse and the child, if over the age of fourteen years, consent to the new name. The name change need not be requested in the petition.”

32A-5-38. Birth certificates.

The amendment to subsection A places the responsibility on the petitioner to forward the appli-cation for a new birth certificate. [See changes to §32A-5-7 G]

“A. Within thirty days after an adoption decreebecomes final, the petitioner shall prepare an applicationfor a birth certificate in the new name of the adopteeshowing the petitioner as the adoptee's parent and shallprovide the application to the clerk of the court. Thepetitioner shall forward the application: . . .”

32A-5-39. Recognition of foreign decrees.

Subsection A was changed by replacing

“judgement” with “decree” or “order of adoption”.

Additionally, the decree or order of adoption must

have been entered by a tribunal in another country

acting “pursuant to that country’s law or pursuant

to any convention or treaty or intercountry

adoption that the United States has ratified.”

32A-5-39. Recognition of foreign decrees. – cont’d

“A. Every decree or order of adoptionterminating the parent-child relationship or establishing the relationship of parent and child by adoption enteredby a court or other entity in another country actingpursuant to that country’s law or pursuant to anyconvention or treaty or intercountry adoption that theUnited States has ratified shall be recognized in thisstate, so that the rights and obligations of the parties as tomatters within the jurisdiction of this state shall bedetermined as though the decree or order of adoptionwere issued by the courts of this state.”

32A-5-40. Post-decree of adoption access to records.

Subsection C was redesignated as subsection D

and the following subsections were redesignated

accordingly. A new subsection C was inserted

requiring that any changes to post-adoption

access to records be filed with the court, the

placing agency AND the department. Any of

these entities might be approached for access to

records and each needs to know the status of

parental consent to access confidential records.

32A-5-40. Post-decree of adoption access to records. – cont’d.

“C. Any changes to post-adoption access

to records referred to in Subsection B of this

section shall be filed with the court, the placing

agency and the department.”

32A-5-45. Administration of subsidized adoptions.

The changes made to subsection B allow the

department to continue adoption subsidy

payments until the age of twenty-one for children

on the medically fragile waiver program.

Subsection C was amended by substituting

“department” for “social services division”.

32A-5-45. Administration of subsidized adoptions. – cont’d

“B. Subsidy payments may include payments to vendors for medical and surgical expenses and payments to the adoptive parents or permanent guardians for maintenance and other costs incidental to the adoption, care, training and education of the child. The payments in any category of assistance shall not exceed the cost of providing the assistance in foster care. Payments shall not be made under this section after the child reaches eighteen years of age, except for a child who is enrolled in the medically fragile waiver program, in which case the payments may extend until the child is twenty-one years of age.”

32A-5-45. Administration of subsidized adoptions. – cont’d

“C. A written agreement between the departmentshall precede the decree of adoption or permanentguardianship. The agreement shall incorporate the termsand conditions of the subsidy plan based on the individualneeds of the child within the permanent family. In cases ofsubsidies that continue for more than one year, there shallbe an annual redetermination of the need for a subsidy.The department shall develop an appeal procedurewhereby a permanent family may contest a divisiondetermination to deny, reduce or terminate a subsidy.”

24-22-1. "Safe Haven for Infants Act".

The purpose of the Safe Haven Act is to promote

the safety of infants and to immunize a parent

from criminal prosecution for leaving an infant,

ninety days of age or less, at a hospital.

Amendments to § 24-22-4 C allow the hospital to

provide the person leaving the infant with

information about the availability of private

adoption services.

24-22-1. "Safe Haven for Infants Act".- cont’d

“C. Upon receiving an infant who is left at a hospital inaccordance with the provisions of the Safe Haven for InfantsAct, the hospital may provide the person leaving the infantwith:

(1) information about adoption services, including information about the availability of privateadoption services;

(2) brochures or telephone numbers foragencies that provide adoption services or counselingservices; and

(3) written information regarding who to contactat the children, youth and families department if the parentdecides to seek reunification with the infant.