2023 New Mexico Statutes › Chapter 32A - Children's Code › Article 5 - Adoptions › Section 32A-5-17 - Persons whose consents or relinquishments are required.

A. 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:
(1) the adoptee, if fourteen years of age or older, except when the court finds that the adoptee does not have the mental capacity to give consent;
(2) the adoptee's mother;
(3) the adoptee's proposed adoptive parent;
(4) the presumed father of the adoptee;
(5) the adoptee's acknowledged father;
(6) the department or the agency to whom the adoptee has been relinquished that has placed the adoptee for adoption or the department or the agency that has custody of the adoptee; provided, however, that the court may grant the adoption without the consent of the department or the agency if the court finds the adoption is in the best interests of the adoptee and that the withholding of consent by the department or the agency is unreasonable; and
(7) the guardian of the adoptee's parent when, pursuant to provisions of the Uniform Probate Code [Chapter 45 NMSA 1978], that guardian has express authority to consent to adoption.
B. A consent or relinquishment executed by a parent who is a minor shall not be subject to avoidance or revocation solely by reason of the parent's minority.
History:
1978 Comp., § 32A-5-17, enacted by Laws 1993, ch. 77, § 144; 1995, ch. 206, § 34; 2005, ch. 189, § 63; 2022, ch. 41, § 62.
ANNOTATIONS
Cross references.
— For the federal Indian Child Welfare Act of 1978,
see
25 U.S.C. § 1901.
The 2022 amendment,
effective July 1, 2022, removed a provision related to Indian children which is now covered by the Indian Family Protection Act; and deleted former Subsection B and redesignated former Subsection C as Subsection B.
The 2005 amendment,
effective June 17, 2005, changed "ten years" to "fourteen years" in Subsection A(1) and changed "adoptive father" to "proposed adoptive parent" in Subsection A(3).
The 1995 amendment,
effective July 1, 1995, in Subsection A, made minor stylistic changes and substituted "ten years of age or older" for "over the age of ten years" in Paragraph (1).
Decisions under prior law.
— In light of the similarity of the provisions, annotations decided under former Section 40-7-35 NMSA 1978 have been included in the annotations to this section.
Parent did not qualify as an acknowledged father.
— Where the biological father of the child knew that the mother was pregnant; the father registered with the putative father registry after receiving notice of the pending adoption of the child and two months after the child's birth and placement with the adoptive parents; and the father filed a petition in the adoption proceeding to establish paternity, the father was not an "acknowledged father" and had no statutory right to withhold consent to the child's adoption.
Helen G. v. Mark J. H.
, 2008-NMSC-002, 143 N.M. 246, 175 P.3d 914.
Consent required to alter parent-child relationship.
— Courts are powerless to alter the natural parent-child relationship and create an artificial one in its stead without a consent agreement, unless circumstances exist under which consent is unnecessary or may be waived.
Barwin v. Reidy
, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175.
Since adoption may be refused to petitioners who have the strongest endorsement of the parents, it follows that the office of the requirement of consent for adoption is to indicate the willingness of the parents that the natural relationship be swept away and a new one created in its stead.
Barwin v. Reidy
, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175.
Written consent to proposed adoption,
duly acknowledged before a notary public, is made the overt act by which the agreement of the parent to an adoption proceeding shall be manifested.
Barwin v. Reidy
, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175.
Consent may be implied where there is direct evidence of it.
In re Garcia's Estate
, 1940-NMSC-081, 45 N.M. 8, 107 P.2d 866.
Consent to adoption not ineffective because of duress of circumstances.
Barwin v. Reidy
, 62 N.M. 183, 307 P.2d 175 (1957).
Consent binds no one unless court acts.
— The giving of consent in an adoption case is indicative of the subjective state of mind of the parents - expressive only of the individuals and binding no one unless the court shall choose to act thereon.
Barwin v. Reidy
, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175.
While parents have no property right in their children,
as long as they properly discharge their responsibilities they are entitled to the custody and the natural affection and allegiance of their children, who should not be taken from them and given to others by adoption unless the parents have manifested their wish and agreement to do so.
Barwin v. Reidy
, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175.
Consent of offending spouse after divorce.
— Where a divorce decree is rendered on the ground of cruelty to a spouse who is granted the custody of children, with the right of visitation granted the offending spouse, the consent of the latter is a necessary prerequisite to entering a decree of adoption.
Onsrud v. Lehman
, 1952-NMSC-037, 56 N.M. 289, 243 P.2d 600.
Fact that one parent has been adjudged to be mentally ill
by a court of competent jurisdiction does not necessarily obviate the necessity of obtaining a consent for adoption from that parent. 1959 Op. Att'y Gen. No. 59-59.
Notice requirements must be complied with.
— A dependent and neglected child of a person who has been declared to be mentally ill by a court of competent jurisdiction may be adopted without the consent of such person, but the notice requirements imposed by certain statutes must be complied with. 1959 Op. Att'y Gen. No. 59-59.
Law reviews.
— For comment, "Custody Standards in New Mexico: Between Third Parties and Biological Parents, What is the Trend?", see 27 N.M.L. Rev. 547 (1997).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 2 Am. Jur. 2d Adoption § 60 et seq.
Necessity and sufficiency of consent to adoption by spouse of adopting parent, 38 A.L.R.4th 768.
Validity and construction of surrogate parenting agreement, 77 A.L.R.4th 70.
Validity of birth parent's "blanket" consent to adoption which fails to identify adoptive parents, 15 A.L.R.5th 1.
Rights of unwed father to obstruct adoption of his child by withholding consent, 61 A.L.R.5th 151.
2 C.J.S. Adoption of Persons §§ 51 to 72.