2023 New Mexico Statutes › Chapter 32A - Children's Code › Article 5 - Adoptions › Section 32A-5-27 - Notice of petition; form of service; waiver.

A. The petition for adoption shall be served by the petitioner on the following, unless it has been previously waived in writing:
(1) the department, by providing a copy to the court clerk for service pursuant to Section 32A-5-7 NMSA 1978;
(2) any person, agency or institution whose consent or relinquishment is required by Section 32A-5-17 NMSA 1978, unless the notice has been previously waived;
(3) any acknowledged father of the adoptee;
(4) the legally appointed custodian or guardian of the adoptee;
(5) the spouse of any petitioner who has not joined in the petition;
(6) the spouse of the adoptee;
(7) the surviving parent of a deceased parent of the adoptee;
(8) any person known to the petitioner having custody of or visitation with the adoptee under a court order;
(9) any person in whose home the child has resided for at least two months within the preceding six months;
(10) the agency or individual authorized to investigate the adoption under Section 32A-5-13 NMSA 1978; and
(11) any other person designated by the court.
B. Notice shall not be served on the following:
(1) an alleged father; and
(2) a person whose parental rights have been relinquished or terminated.
C. The petitioner shall provide the clerk of the court with a copy of the petition for adoption, to be mailed to the department pursuant to the provisions of Section 32A-5-7 NMSA 1978.
D. The notice shall state that the person served shall respond to the petition within twenty days if the person intends to contest the adoption and shall state that the failure to so respond shall be treated as a default and the person's consent to the adoption shall not be required. Provided, however, that this provision shall not apply to an agency, the department or an investigator preparing the post-placement report pursuant to Section 32A-5-31 NMSA 1978. If an agency, the department or an investigator preparing the post-placement report wants to contest the adoption, it shall notify the court within twenty days after completion of the post-placement report.
E. Service shall be made pursuant to the Rules of Civil Procedure for the District Courts. If the whereabouts of a parent whose consent is required is unknown, the investigator, department or agency charged with investigating the adoption under Section 32A-5-13 NMSA 1978 shall investigate the whereabouts of the parent and shall file by affidavit the results of the investigation with the court. Upon a finding by the court that information as to the whereabouts of a parent has been sufficiently investigated and is still insufficient to effect service in accordance with the Rules of Civil Procedure for the District Courts, the court shall issue an order providing for service by publication.
F. As to any other person for whom notice is required under Subsection A of this section, service by certified mail, return receipt requested, shall be sufficient. If the service cannot be completed after two attempts, the court shall issue an order providing for service by publication.
G. The notice required by this section may be waived in writing by the person entitled to notice.
H. Proof of service of the notice on all persons for whom notice is required by this section shall be filed with the court before any hearing adjudicating the rights of the persons.
History:
1978 Comp., § 32A-5-27, enacted by Laws 1993, ch. 77, § 154; 2001, ch. 162, § 5; 2022, ch. 41, § 65.
ANNOTATIONS
Cross references.
— For process in the Children's Court,
see
10-104 NMRA.
For service of process in the district courts,
see
1-004 NMRA.
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 D and redesignated former Subsections E through I as Subsections D through H, respectively.
Applicability.
— Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022.
The 2001 amendment,
effective June 15, 2001, updated the internal references throughout the section; and substituted "an alleged father" for "alleged or putative fathers" in Paragraph B(1).
Decisions under prior law.
— In light of the similarity of the provisions, annotations decided under former Section 40-7-44 NMSA 1978 have been included in the annotations to this section.
Substitute service of process by publication
is inadequate in adoption proceedings.
Normand ex rel. Normand v. Ray
, 1988-NMSC-054, 107 N.M. 346, 758 P.2d 296 (decided under prior law).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— Required parties in adoption proceedings, 48 A.L.R.4th 860.