2023 New Mexico Statutes › Chapter 32A - Children's Code › Article 5 - Adoptions › Section 32A-5-16 - Termination procedures.

A. A proceeding to terminate parental rights may be initiated in connection with or prior to an adoption proceeding. Venue shall be in the court for the county in which the child is physically present or in the county from which the child was placed. The proceeding may be initiated by any of the following:
(1) the department;
(2) an agency; or
(3) any other person having a legitimate interest in the matter, including a petitioner for adoption, the child's guardian, the child's guardian ad litem or attorney in another action, a foster parent, a relative of the child or the child.
B. A petition for termination of parental rights shall be signed and verified by the petitioner, be filed with the court and set forth:
(1) the date, place of birth and marital status of the child, if known;
(2) the grounds for termination and the facts and circumstances supporting the grounds for termination;
(3) the names and addresses of the person, authorized agency or agency officer to whom custody might be transferred;
(4) the basis for the court's jurisdiction;
(5) that the petition is in contemplation of adoption;
(6) the relationship or legitimate interest of the applicant to the child; and
(7) whether the child is an Indian child.
C. Notice of the filing of the petition, accompanied by a copy of the petition, shall be served by the petitioner on the parents of the child, the child's guardian, the legal custodian of the child, the person with whom the child is residing, the individuals with whom the child has resided within the past six months and the department. Service shall be in accordance with the Rules of Civil Procedure for the District Courts for the service of process in a civil action in this state, with the exception that the department may be served by certified mail. The notice shall state specifically that the person served shall file a written response to the petition within twenty days if the person intends to contest the termination.
D. If the identification or whereabouts of a parent is unknown, the petitioner shall file a motion for an order granting service by publication or an order stating that service by publication is not required. A motion for an order granting service by publication shall be supported by the affidavit of the petitioner, the agency or the petitioner's attorney detailing the efforts made to locate the parent. Upon being satisfied that reasonable efforts to locate the parent have been made and that information as to the identity or whereabouts of the parent is still insufficient to effect service in accordance with SCRA, Rule 1-004, the court shall order service by publication or order that publication is not required because the parent's consent is not required pursuant to the provisions of Section 32A-5-19 NMSA 1978.
E. The court shall, upon request, appoint counsel for an indigent parent who is unable to obtain counsel or if, in the court's discretion, appointment of counsel for an indigent parent is required in the interest of justice. Payment for the appointed counsel shall be made by the petitioner pursuant to the rate determined by the supreme court of New Mexico for court-appointed attorneys.
F. The court shall appoint a guardian ad litem for the child in all contested proceedings for termination of parental rights. If the child is fourteen years of age or older and in the custody of the department, the child's attorney appointed pursuant to the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978] shall represent the child in any proceedings for termination of parental rights under this section.
G. Within thirty days after the filing of a petition to terminate parental rights, the petitioner shall request a hearing on the petition. The hearing date shall be at least thirty days after service is effected upon the parent of the child or completion of publication.
H. The grounds for any attempted termination shall be proved by clear and convincing evidence.
I. If the court terminates parental rights, it shall appoint a custodian for the child. Upon entering an order terminating the parental rights of a parent, the court may commit the child to the custody of the department, the petitioner or an agency willing to accept custody for the purpose of placing the child for adoption.
J. A judgment of the court terminating parental rights divests the parent of all legal rights. Termination of parental rights shall not affect the child's right of inheritance through the former parent.
History:
1978 Comp., § 32A-5-16, enacted by Laws 1993, ch. 77, § 143; 1997, ch. 34, § 11; 2001, ch. 162, § 3; 2009, ch. 239, § 54; 2022, ch. 41, § 61.
ANNOTATIONS
Cross references.
— For termination procedures in abuse and neglect cases,
see
32A-4-29 NMSA 1978.
For Rules of Civil Procedure for the District Courts,
see
1-001 NMRA.
For process in the Children's Court,
see
Rule 10-103 NMRA.
For the federal Indian Child Welfare Act of 1978,
see
25 U.S.C. § 1901.
The 2022 amendment,
effective July 1, 2022, removed provisions related to Indian children which are now covered by the Indian Family Protection Act; in Subsection B, deleted Subparagraphs B(7)(a) through B(7)(c); in Subsection C, deleted "In any case involving an Indian child, notice shall also be served on the child's Indian tribe pursuant to the federal Indian Child Welfare Act of 1978"; in Subsection H, deleted "In any proceeding involving an Indian child, the grounds for any attempted termination shall be proved beyond a reasonable doubt and meet the requirements set forth in the federal Indian Child Welfare Act of 1978"; and in Subsection I, deleted "In any termination proceeding involving an Indian child, the court shall, in any termination order, make specific findings that the requirements of the federal Indian Child Welfare Act of 1978 were met".
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 2009 amendment,
effective July 1, 2009, in Paragraph (3) of Subsection A, after "guardian ad litem", added "or attorney" and in Subsection F, added the last sentence.
The 2001 amendment,
effective June 15, 2001, deleted "an agency" preceding "a foster parent" in Paragraph A(3); substituted "the individuals" for "any person" in Subsection C; and in Subsection E substituted "an indigent parent who is unable" for "any parent who is unable", deleted "for financial reasons" following "to obtain counsel", inserted "for an indigent parent" following "appointment of council" and inserted "pursuant to the rate determined by the supreme court of New Mexico for court-appointed attorneys" at the end of the subsection.
The 1997 amendment,
effective July 1, 1997, made a minor stylistic change in Subsection C; and in Subsection D, divided the former first sentence into the present first and second sentences by inserting the language "or an order stating that service by publication is not required. A motion for an order granting service by publication shall be", and, at the end of the third sentence, added "or order that publication is not required because the parent's consent is not required pursuant to the provisions of Section 32A-5-19 NMSA 1978".
Decisions under prior law.
— In light of the similarity of the provisions, annotations decided under former Section 32-1-55 NMSA 1978 have been included in the annotations to this section.
Waiver of objection to venue.
— Mother, who appealed district court's judgment terminating her parental rights, waived her claim of improper venue, where she failed to raise her venue-statute objection at a time when any error could have been cured promptly.
In re Kenny F.
, 1990-NMCA-004, 109 N.M. 472, 786 P.2d 699,
overruled on other grounds by
,
In re Adoption of J.J.B.
, 1993-NMCA-145, 117 N.M. 31, 868 P.2d 1256;
rev'd in part on other grounds
, 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995).
Appointment of counsel not required.
— Where the parent did not request counsel and there was nothing in the record to indicate that the parent was indigent at the time of the consent hearing or that justice required the appointment of counsel, and the parent participated in the consent hearing, asked questions of witnesses, testified, and made a statement on the parent's own behalf, the parent did not show that the parent was entitled to counsel at the consent hearing.
In re Adoption of Homer F.
, 2009-NMCA-082, 146 N.M. 845, 215 P.3d 783.
The court must advise parent of right to counsel upon a showing of indigency.
— In a termination of parental rights proceeding, where the mother's indigency was pointed out to the court at the first hearing, it was incumbent upon the court to advise the mother of her statutory right to counsel upon a showing of indigency, and the district court's failure to do so violated the mother's rights under the Adoption Act and was in derogation of the mother's due process rights.
In re Adoption Petition of Darla D. v. Grace R.
, 2016-NMCA-093.
District court has a duty to inquire about the adequacy of a guardian ad litem.
— In a termination of parental rights proceeding, where the guardian ad litem was selected by petitioners' counsel, where the record was silent as to what information, if any, the guardian ad litem received from petitioners concerning the case, and where the guardian ad litem was not present at the hearing on her appointment, the judicial duty to ensure that procedures implicating a parent's due process rights are conducted with scrupulous fairness required the district court to confirm the guardian ad litem was properly informed as to her responsibilities under New Mexico law, was not biased and was able to adequately represent the child's interest; the district court's failure to inquire about the adequacy of the guardian ad litem's representation of the child's interest was an abuse of discretion.
In re Adoption Petition of Darla D. v. Grace R.
, 2016-NMCA-093.
Lack of notice of issue of continuation of parental rights violates mother's due process rights.
— Since the issue of termination of parental rights was not raised in the pleadings, nor properly tried and was mentioned for the first time after closing arguments, when counsel for the father made an oral motion that the parental rights of the mother be terminated, the procedural due process rights of the mother were violated as she was never given notice that the continuation of her parental rights was at issue, she did not have a full opportunity to prepare her case and, consequently, she was not given a full and fair hearing.
In re Arnall
, 1980-NMSC-052, 94 N.M. 306, 610 P.2d 193.
Sufficiency of notice.
— Although the summons served upon a father in a termination of parental rights action did not meet the requirements in the statute, there was no showing that the father was prejudiced by the various errors in the notice.
Ronald A. v. State ex rel. Human Servs. Dep't
, 1990-NMSC-071, 110 N.M. 454, 794 P.2d 371.
Prior proceeding concerned with the fact of neglect is not a jurisdictional bar
to a later, separate termination proceeding.
In re Doe
, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510.
Since neglect proceedings do not result in final judgment on merits,
the department is not barred under the "judgments" rule from later bringing termination proceedings.
In re Doe
, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510.
Verification of pleadings.
— Although the human services department [health care authority department] failed to obtain the court's permission prior to filing its amended petitions to terminate parental rights, the court granted permission to file the final amended petition and verification prior to the commencement of trial. Allowance of this amendment rectified any insufficiency in the earlier pleadings not being verified. The court, therefore, was not deprived of subject matter jurisdiction.
Laurie R. v. N.M. Human Servs. Dep't
, 1988-NMCA-055, 107 N.M. 529, 760 P.2d 1295.
Authority of court after mother's consent declared invalid.
— Since the mother's consent to adoption has been declared invalid in keeping with the best interests of the child, the trial court retains the power to determine custody in the absence of a legally valid consent, and it is within the authority of the trial court to continue the child in the custody of the couple seeking to adopt her. Although they lacked standing to petition the court for adoption, they were not left without remedy, since they did have standing to seek relief.
In re Samantha D.
, 1987-NMCA-082, 106 N.M. 184, 740 P.2d 1168, cert denied, 106 N.M. 174, 740 P.2d 1158.
Law reviews.
— For note, "Family Law - New Mexico Expands Due Process Rights of Parents in Termination of Parental Rights: In re Ruth Anne E.," 31 N.M.L. Rev. 439 (2001).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203.