N.M. Stat. § 32A-28-18 — NM Code / Chapter 32A / Article 28 / Section 32A-28-18
§ 32A-28-18. Voluntary placement agreements; parental rights; consent; withdrawal; fraud or duress
Status: in_force

A. Prior to entering any voluntary placement agreement, the department shall make active efforts to prevent the breakup of the Indian family pursuant to the Indian Family Protection Act.

B. In a voluntary foster care placement involving an Indian child, an Indian child's parent or guardian may enter into a voluntary placement agreement with the department. An Indian child's parent's or guardian's consent is voidable unless it is executed in writing and recorded before the court.

C. The department shall notify the Indian child's tribe by certified mail, with return receipt requested, of the pending voluntary placement agreement and of the Indian child's tribe's right to intervene.

D. Before approving a voluntary placement agreement, the court shall ensure that the voluntary placement agreement is executed in writing. The court shall certify on the record that:

(1) the terms and consequences of the consent were fully explained in detail and in a manner that is understandable to the parent or guardian;

(2) the Indian child's parent or guardian fully understands the English language or that the voluntary placement agreement was interpreted into the primary language of the Indian child's parent or guardian;

(3) the child is an Indian child;

(4) there is no pending child abuse or neglect investigation involving the Indian child;

(5) the Indian child's parent or guardian is voluntarily entering into the voluntary placement without any threat of removal of the Indian child by the department;

(6) the department provided notice to the Indian child's tribe via certified or registered mail with return receipt requested;

(7) confidentiality has been requested or indicated and execution of consent was made in a closed court proceeding not open to the public;

(8) if not represented, the Indian child's parent or guardian is proceeding without an attorney and has the right to consult with an attorney of the Indian child's parent's or guardian's own choosing; and

(9) the Indian child's parent or guardian is of sound mind and judgment.

E. The request for voluntary placement shall be initiated in writing by the Indian child's parent or guardian, and if good cause is shown and the requirements of Subsection D of this section are met, the department may accept temporary custody or placement and care responsibility. Placement and care responsibility means that the department is legally accountable for the day-to-day care and protection of the Indian child in foster care. Responsibility for placement and care allows the department to make placement decisions about the Indian child, such as where the child is placed and the type of placement that is most appropriate for the Indian child.

F. During voluntary placement, the department shall make active efforts to provide tailored case planning to alleviate the causes and conditions leading to the voluntary placement agreement.

G. Any consent to a foster care placement that is given prior to or within ten days after birth of an Indian child is voidable.

H. An Indian child's parent or guardian may withdraw consent to a voluntary foster care placement of an Indian child pursuant to the Children's Code at any time. Upon receipt of a request to withdraw, the Indian child shall be returned to the Indian child's parent or guardian. The department shall have up to forty-eight hours after withdrawal of consent to allow for transition arrangements to be made for the Indian child's return to the Indian child's parent or guardian.

I. An Indian child shall not remain in voluntary placement for longer than one hundred eighty consecutive days or for more than one hundred eighty days in a calendar year; provided that a child may remain in voluntary placement up to an additional one hundred eighty consecutive days upon order of the court. If the Indian child's parent or guardian seeks to extend the voluntary placement, the department shall file a petition for an extension of voluntary placement prior to the expiration of the initial one-hundred-eighty-day period. The court shall hold a hearing and make a finding within the initial one-hundred-eighty-day period that the extension of voluntary placement is in the best interest of the Indian child.

J. If a request for an extension is not filed with the court prior to the initial one-hundred-eighty-day period, the agreement expires. No later than thirty days before the expiration of the initial agreement, the court shall hold a review hearing to determine if the voluntary placement should be extended.

K. In no event shall an Indian child remain in voluntary placement for a period in excess of three hundred sixty-five days in any two-year period.

L. Any voluntary placement pursuant to this section shall not be considered abandonment, neglect or abuse by an Indian child's parent, guardian or extended family member.

M. The parent or guardian whose Indian child is in voluntary placement pursuant to this section shall have the following rights to:

(1) have visitation with the child;

(2) be informed of changes in the Indian child's school or of changes in the child's placement by the department;

(3) authorize decisions regarding medical and dental care and behavioral health services, including decisions that affect the daily care, support, safety and well-being of the child;

(4) permit the department to consent to emergency services to ensure the safety and well-being of the Indian child, including medical, dental or behavioral health treatment, if the department is unable to make immediate prior contact with the parent or guardian. The department shall notify the parent or guardian within two hours of making emergency decisions due to inability to make prior contact;

(5) consent to all non-emergency and non-routine medical care provided for the child;

(6) make decisions regarding participation and attendance in cultural and religious events, including traditional and cultural events offered by the Indian child's tribe; and

(7) make decisions of substantial legal significance.

N. If new safety concerns are identified during the voluntary placement, the department shall not extend a voluntary placement agreement, but instead shall make a new report of suspected abuse or neglect to be screened for determination of a new department investigation.

O. The voluntary placement shall adhere to and be in accordance with the placement preferences set forth in the Indian Family Protection Act.

P. All records or information concerning the voluntary placement shall be confidential in accordance with the confidentiality provision of the Indian Family Protection Act.