2023 New Mexico Statutes › Chapter 32A - Children's Code › Article 4 - Child Abuse and Neglect › Section 32A-4-29 - Termination procedure.

A. A motion to terminate parental rights may be filed at any stage of the abuse or neglect proceeding by a party to the proceeding.
B. The motion for termination of parental rights shall 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 persons or authorized agency or agency officer to whom legal custody might be transferred;
(4) whether the child resides or has resided with a foster parent who desires to adopt the child;
(5) whether the motion is in contemplation of adoption;
(6) the relationship or legitimate interest of the moving party to the child; and
(7) whether the child is subject to the Indian Family Protection Act [32A-28-1 to 32A-28-42 NMSA 1978].
C. Notice of the filing of the motion, accompanied by a copy of the motion, shall be served by the moving party on all other parties, the foster parent, preadoptive parent or relative providing care for the child with whom the child is residing, foster parents with whom the child has resided for six months within the previous twelve months, the custodian of the child, any person appointed to represent any party and any other person the court orders. Service shall be in accordance with the Children's Court Rules for the service of motions, except that foster parents and attorneys of record in this proceeding shall be served by certified mail. The notice shall state specifically that the person served shall file a written response to the motion within twenty days if the person intends to contest the termination. Further notice shall not be required on a parent who has been provided notice previously pursuant to Section 32A-4-17 NMSA 1978 and who failed to make an appearance.
D. When a motion to terminate parental rights is filed, the moving party shall request a hearing on the motion. The hearing date shall be at least thirty days, but no more than sixty days, after service is effected upon the parties entitled to service under this section. The moving party shall also file a motion for court-ordered mediation between the parent and any prospective adoptive parent to discuss an open adoption agreement. If an open adoption agreement is reached at any time before termination of parental rights, it shall be made a part of the court record.
E. In any action for the termination of parental rights brought by a party other than the department and involving a child in the legal custody of the department, the department may:
(1) litigate a motion for the termination of parental rights that was initially filed by another party; or
(2) move that the motion for the termination of parental rights be found premature and denied.
F. When a motion to terminate parental rights is filed, the department shall perform concurrent planning.
G. When a child has been in foster care for not less than fifteen of the previous twenty-two months, the department shall file a motion to terminate parental rights, unless:
(1) a parent has made substantial progress toward eliminating the problem that caused the child's placement in foster care; it is likely that the child will be able to safely return to the parent's home within three months; and the child's return to the parent's home will be in the child's best interests;
(2) the child has a close and positive relationship with a parent and a permanent plan that does not include termination of parental rights will provide the most secure and appropriate placement for the child;
(3) the child is fourteen years of age or older, is firmly opposed to termination of parental rights and is likely to disrupt an attempt to place the child with an adoptive family;
(4) a parent is terminally ill, but in remission, and does not want parental rights to be terminated; provided that the parent has designated a guardian for the child;
(5) the child is not capable of functioning if placed in a family setting. In such a case, the court shall reevaluate the status of the child every ninety days unless there is a final court determination that the child cannot be placed in a family setting;
(6) grounds do not exist for termination of parental rights;
(7) the child is an unaccompanied, refugee minor and the situation regarding the child involves international legal issues or compelling foreign policy issues;
(8) adoption is not an appropriate plan for the child; or
(9) the parent's incarceration or participation in a court-ordered residential substance abuse treatment program constitutes the primary factor in the child's placement in substitute care and termination of parental rights is not in the child's best interest.
H. For purposes of this section, a child shall be considered to have entered foster care on the earlier of:
(1) the date of the first judicial finding that the child has been abused or neglected; or
(2) the date that is sixty days after the date on which the child was removed from the home.
I. The grounds for any attempted termination shall be proved by clear and convincing evidence.
J. When the court terminates parental rights, it shall appoint a custodian for the child and fix responsibility for the child's support.
K. A judgment of the court terminating parental rights divests the parent of all legal rights and privileges and dispenses with both the necessity for the consent to or receipt of notice of any subsequent adoption proceeding concerning the child. A judgment of the court terminating parental rights shall not affect the child's rights of inheritance from and through the child's biological parents.
L. When the court denies a motion to terminate parental rights, the court shall issue appropriate orders immediately. The court shall direct the parties to file a stipulated order and interim plan or a request for hearing within thirty days of the date of the hearing denying the termination of parental rights.
History:
1978 Comp., § 32A-4-29, enacted by Laws 1993, ch. 77, § 123; 1997, ch. 34, § 10; 1999, ch. 77, § 11; 2001, ch. 315, § 1; 2003, ch. 108, § 1; 2005, ch. 189, § 52; 2009, ch. 239, § 49; 2022, ch. 41, § 55.
ANNOTATIONS
Cross references.
— For termination procedures in adoption cases,
see
32A-5-16 NMSA 1978.
For termination of parental rights,
see
Rule 10-347 NMRA.
For service of motions,
see
Rule 10-104 NMRA.
For motion to terminate parental rights,
see
Rule 10-470 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, and required that a motion for termination of parental rights set forth whether the child is subject to the Indian Family Protection Act; in Subsection B, Paragraph B(7), after "subject to the", deleted "federal Indian Child Welfare Act of 1978 and, if so" and added "Indian Family Protection Act", deleted Subparagraphs B(7)(a) through B(7)(c); in Subsection C, deleted "In any case involving a child subject to the federal Indian Child Welfare Act of 1978, notice shall also be sent by certified mail to the tribes of the child's parents and upon any 'Indian custodian' as that term is defined in 25 U.S.C. Section 1903(6)"; in Subsection I, deleted "In any proceeding involving a child subject to the federal Indian Child Welfare Act of 1978, the grounds for any attempted termination shall be proved beyond a reasonable doubt and shall meet the requirements set forth in 25 U.S.C. Section 1912(f)"; and deleted former Subsection K and redesignated former Subsections L and M as Subsections K and L, 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 2009 amendment,
effective July 1, 2009, in Subsection D, added the third and fourth sentences; added Paragraph (9) of Subsection G; and added Subsection M.
The 2005 amendment,
effective June 17, 2005, deleted former Subsection A(1) through (3), which listed the persons and entities who could initiate a termination proceeding and provides that a motion to terminate parental rights may be made by a party to the proceeding; deleted the former requirement in Subsection B that a motion be signed, verified and filed with the court; deleted former Subsection C, which provided that a parent who has not been a party shall be named a party in the motion and shall be become a party unless the parent has not established a protected liberty interest with respect to the child; in Subsection C, provided that service shall be in accordance with the Children's Court Rules; deleted former Subsection E, which provided that if the identity or whereabouts of a person are unknown, the court could permit service by publication; deleted former Subsection F, which provided that after a motion is filed, the parent shall be advised of the right to counsel and that counsel shall be appointed upon request for any parent who cannot afford counsel or the interests of justice require the appointment; deleted former Subsection G, which provided that the court shall ensure that a guardian ad litem represents the child in all proceedings for termination of parental rights; in Subsection E, changed "custody" to "legal custody"; and in Subsection G(3), changed "thirteen years of age" to "fourteen years of age".
The 2003 amendment,
effective June 20, 2003, substituted "foster care" for "the custody of the department" preceding "for not less" in Subsection K; added present Subsection L and redesignated former Subsections L to O as present Subsections M to P.
The 2001 amendment,
effective July 1, 2001, inserted Subsections J and K and redesignated subsequent subsections.
The 1999 amendment,
effective July 1, 1999, in Subsection D, substituted "the foster parent, preadoptive parent or relative providing care for the child" for "foster parents" in the first sentence and updated a statutory reference in the last sentence.
The 1997 amendment,
effective July 1, 1997, added "unless the court determines that the parent has not established a protected liberty interest in his relationship with the child" at the end of Subsection C; in Subsection D, in the first sentence, substituted "all other parties" for "the parents of the child, any parent who has not previously been made a party to the proceeding", deleted "the department," following "custodian of the child," and deleted "including the child's guardian ad litem,", in the second sentence, substituted "service of motions" for "service of process", in the fourth sentence, substituted "sent by certified mail to" for "served upon" and added the last sentence; inserted "but no more than sixty days," in the second sentence in Subsection H; and made minor stylistic changes in Subparagraph B(7)(b) and in Subsection D.
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.
Sufficient evidence.
— Where the parent physically abused and neglected the child's siblings; the parent had a history of reoccurring domestic violence that involved drug and alcohol use; three incidences of domestic violence occurred when the child was in utero; the parent failed to follow a treatment plan that included drug testing and counseling to improve family relations and parenting skills; and the parent failed to participate in most of the remedial services and rehabilitative programs provided by the Children, Youth and Families Department that included a program for parenting skills, supervised visitations, drug and alcohol assessment and treatment, mental health and family relations assessment, transportation for the parent's appointments to programs and services provided by the department, there was sufficient evidence to determine that the child was abused and neglected and that the department had made active efforts to provide remedial services and rehabilitative programs to prevent the family's break up.
State ex rel. Children, Youth & Families Dep't v. Arthur C.
, 2011-NMCA-022, 149 N.M. 472, 251 P.3d 729.
Burden of proof for neglect determinations involving the federal Indian Child Welfare Act.
— The grounds supporting termination of parental rights in cases involving the federal Indian Child Welfare Act, including the determination that a child has been abused or neglected under § 32A-4-28(B)(2) NMSA 1978, must be proved beyond a reasonable doubt.
State ex rel. CYFD v. Maisie Y.
, 2021-NMCA-023,
overruling in part State ex rel. CYFD v. Yodell B.
, 2016-NMCA-029, 367 P.3d 881.
Where the children, youth and families department (CYFD) filed an abuse and neglect petition against appellant (mother), alleging that mother neglected her two-month old child, and where CYFD moved to terminate mother's parental rights to all four of her children, and where, following a termination of parental rights trial, the district court, taking judicial notice of mother's prior adjudications of neglect, terminated mother's parental rights but failed to tie its finding of neglect to evidence presented during the trial, the district court's reliance solely on mother's prior adjudications of abuse and neglect, which were made under a clear and convincing standard, to support its finding that the children were neglected, was inadequate to demonstrate that it made the necessary finding beyond a reasonable doubt to support termination of parental rights.
State ex rel. CYFD v. Maisie Y.
, 2021-NMCA-023,
overruling in part State ex rel. CYFD v. Yodell B.
, 2016-NMCA-029, 367 P.3d 881.
"Active efforts," in a termination of parental rights proceeding, must be proved beyond a reasonable doubt.
— In cases where the federal Indian Child Welfare Act (ICWA) applies, a showing of active efforts on the part of the children, youth & families department is required before a parent's parental rights may be terminated, and because § 32A-4-29(I) NMSA 1978, applies the beyond a reasonable doubt standard to the grounds for parental terminations in ICWA cases, New Mexico law requires that active efforts be proven beyond a reasonable doubt.
State ex rel. CYFD v. Maisie Y.
, 2021-NMCA-023,
overruling in part State ex rel. CYFD v. Yodell B.
, 2016-NMCA-029, 367 P.3d 881.
Standard of proof for determinations of "active efforts" under the federal Indian Child Welfare Act.
— Under the federal Indian Child Welfare Act (ICWA), a party seeking to terminate parental rights shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. "Active efforts" are intended primarily to maintain and reunite an Indian child with his or her family or tribal community and connotes a more involved and less passive standard than that of reasonable efforts. The proper standard of proof for determinations under 25 U.S.C. § 1912(d) of the ICWA is the clear and convincing standard, which is applicable to the underlying termination of parental rights proceedings under 32A-4-29(I) NMSA 1978.
State ex rel. CYFD v. Yodell B.
, 2016-NMCA-029, 367 P.3d 881,
overruled in part by
State ex rel. CYFD v. Maisie Y.
, 2021-NMCA-023.
In a termination of parental rights case, where the evidence established that the children, youth and families department (department) permanency planning worker took affirmative steps of meeting with father to create a treatment plan, and referring father to a parenting class, but did little else to assist father in implementing the treatment plan, the department took a passive role by shouldering father with the burden of not only independently locating and obtaining services, but also ensuring the service providers were communicating with the department about his progress. The department did not present clear and convincing evidence that active efforts were made to prevent the breakup of father's family.
State ex rel. CYFD v. Yodell B.
, 2016-NMCA-029, 367 P.3d 881,
overruled in part by
State ex rel. CYFD v. Maisie Y.
, 2021-NMCA-023.
Presumption of retroactivity.
— Based on the importance of the especially significant interests at stake for children and parents in cases involving the Abuse and Neglect Act, Chapter 32A, Article 4 NMSA 1978, as well as the need to eliminate disparate outcomes in such cases simply by virtue of the position of a case on the judicial docket, the presumption of retroactivity applies to abuse and neglect cases.
State ex rel. CYFD v. Ruben C.
, 2022-NMCA-063, cert. granted.
Clarifications of New Mexico law regarding standards of proof in termination of parental rights cases subject to the federal Indian Child Welfare Act.
— The New Mexico court of appeals decision in
State ex rel. Children, Youth & Families Dep't v. Maisie Y.
, 2021-NMCA-023 (Maisie Y.), which held that in cases subject to the federal Indian Child Welfare Act (ICWA), all grounds to terminate parental rights, including determinations of abuse and neglect, must be proven beyond a reasonable doubt, judicial notice of prior adjudications of abuse and neglect made under the clear and convincing evidence standard, without more, is insufficient, and the active efforts requirement of the ICWA must be proven beyond a reasonable doubt, will be applied retroactively.
State ex rel. CYFD v. Ruben C.
, 2022-NMCA-063, cert. granted.
Application of higher standards of proof required by
State ex rel. CYFD v. Maisie Y.
— Where father's parental rights were terminated prior to the New Mexico court of appeals decision in
State ex rel. Children, Youth & Families Dep't v. Maisie Y.
, 2021-NMCA-023 (
Maisie Y.
), which held that in cases subject to the federal Indian Child Welfare Act (ICWA), all grounds to terminate parental rights, including determinations of abuse and neglect, must be proven beyond a reasonable doubt, judicial notice of prior adjudications of abuse and neglect made under the clear and convincing evidence standard, without more, is insufficient, and the active efforts requirement of the ICWA must be proven beyond a reasonable doubt, the district court's termination of father's parental rights required reversal, because it was possible that CYFD may not have met the higher standards of proof required by
Maisie Y.
State ex rel. CYFD v. Ruben C.
, 2022-NMCA-063, cert. granted.
Judicial notice of case file.
— If the district court feels it necessary to take judicial notice of all or part of a case file in a termination of parental rights proceeding, the court should state what information, specifically, is being judicially noticed and how the court intends to use the judicially noticed information.
State ex rel. Children, Youth & Families Dep't v. Brandy S.
, 2007-NMCA-135, 142 N.M. 705, 168 P.3d 1129.
Required filing of termination motion.
— Barring exceptional circumstances, the Abuse and Neglect Act requires a termination motion to be filed when the child has been in foster care for 15 out of 22 months.
State ex rel. Children, Youth & Families Dep't. v. Maria C.
, 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796.
Timing of hearing.
— Failure to hold the termination of parental rights hearing within 60 days, as required by Subsection H (now D), does not mandate a dismissal of the motion to terminate parental rights.
State ex rel. Children, Youth & Families Dep't v. Anne McD.
, 2000-NMCA-020, 128 N.M. 618, 995 P.2d 1060.
No right to jury trial.
— There is no right to a trial by jury in termination of parental rights proceedings provided by either the Children's Code or the state constitution.
State ex rel. Children, Youth & Families Dep't v. T.J.
, 1997-NMCA-021, 123 N.M. 99, 934 P.2d 293, cert. denied, 122 N.M. 808, 932 P.2d 498.
Due process rights of incarcerated parent in termination hearing.
— Because a fundamental liberty interest is implicated in proceedings involving the termination of parental rights, a parent who is incarcerated and is unable to attend a hearing on a petition to terminate parental rights is entitled to procedural due process, including the right to review and challenge the evidence presented against him and to present evidence on his behalf.
State ex rel. Children, Youth & Families Dep't v. Ruth Anne E.
, 1999-NMCA-035, 126 N.M. 670, 974 P.2d 164.
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.
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.
Right to competent counsel.
— The right of a parent to counsel includes the right to competent counsel. In a trial the judge has an obligation to facilitate the resolution of the issue of whether that parent has received effective assistance of counsel by holding an evidentiary hearing if he or she expresses concerns that merit such a hearing.
In re James W.H.
, 1993-NMCA-028, 115 N.M. 256, 849 P.2d 1079, cert. denied
sub nom. Hellums v. State
, 115 N.M. 545, 854 P.2d 872.
Right to counsel on appeal.
— Mother had a right to court-appointed counsel on appeal of a decision terminating her parental rights and counsel had an obligation to present her issues in accordance with the guidelines set forth in
State v. Franklin
, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982.
State ex rel. Children, Youth & Families Dep't v. Alice P.
, 1999-NMCA-098, 127 N.M. 664, 986 P.2d 460, cert. denied, 127 N.M. 391, 981 P.2d 1209.
Rules of Civil Procedure apply
in all proceedings to terminate parental rights.
State ex rel. Children, Youth & Families Dep't v. Wendy T.
, 1994-NMCA-096, 118 N.M. 352, 881 P.2d 712.
Summary judgment may be used to terminate parental rights
where there are no issues of fact underlying the basis or termination.
State ex rel. Children, Youth & Families Dep't v. Wendy T.
, 1994-NMCA-096, 118 N.M. 352, 881 P.2d 712.
Termination of parental rights severs the parent's support obligation.
Aeda v. Aeda
, 2013-NMCA-095, cert. granted, 2013-NMCERT-009.
Where a divorce decree ordered respondent to pay monthly child support until respondent's children reached majority, were emancipated or until further order of the court; petitioner subsequently filed for termination of respondent's parental rights; respondent entered an appearance, but did not participate in the case; the termination order made no mention of alteration of the child support order; and petitioner sought to collect child support arrearages under the divorce decree, termination of respondent's parental rights terminated respondent's child support obligations.
Aeda v. Aeda
, 2013-NMCA-095, cert. granted, 2013-NMCERT-009.
Law reviews.
— For note, "Family Law: New Mexico Expands Due Process Rights of Parents in Termination of Parental Rights: In re Ruth Anne E.", see 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.