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N.M. Stat. § 32A-5-36
New Mexico Statutes
Chapter
32A. Children's Code Article
5. Adoption Act
§ 32A-5-36. Adjudication; disposition; decree of adoption
A. The court shall conduct hearings on the petition for adoption so as
to determine the rights of the parties in a manner that protects confidentiality.
The petitioner and the adoptee shall attend the hearing unless the court
for good cause waives a party's appearance. Good cause may include burdensome
travel requirements.
B.
The petitioner shall file all documents required pursuant to the Adoption
Act and serve the department with copies of the documents simultaneously
with the request for hearing on the petition for adoption.
C.
If any person who claims to be the biological father of the adoptee has
appeared
before the court and filed a written petition or response seeking custody
and assuming financial responsibility of the adoptee, the court shall
hear evidence as to the merits of the petition. If the court determines
by a preponderance of the evidence that the person is not the biological
father of the adoptee or that the child was conceived through an act of
rape or incest, the petition shall be dismissed and the person shall no
longer be a party to the adoption. If the court determines that the person
is the biological father of the adoptee, the court shall further determine
whether the person qualifies as a presumed or acknowledged father whose
consent is necessary for adoption, pursuant to Section 32A-5-17 NMSA 1978.
If the court determines that the person is the biological father, but
does not qualify as a presumed or acknowledged father, the court shall
adjudicate the person's rights pursuant to the provisions of the Adoption
Act.
D.
If the mother or father of the adoptee has appeared before the court and
filed a written petition that alleges the invalidity of the mother's or
father's own consent or relinquishment for adoption previously filed in
the adoption proceeding, the court shall hear evidence as to the merits
of the petition. If the court determines that the allegations have not
been proved by a
preponderance of the evidence, the petition shall be dismissed. If the
court determines that the allegations of the petition are true, the consent
or relinquishment for adoption shall be held invalid, and the court shall
determine, in the best interests of the adoptee, the person who shall
have custody of the child.
E.
The petitioner shall present and prove each allegation set forth in the
petition for adoption by clear and convincing evidence.
F.
The court shall grant a decree of adoption if it finds that the petitioner
has proved by clear and convincing evidence that:
(1)
the court has jurisdiction to enter a decree of adoption affecting the
adoptee;
(2)
the adoptee has been placed with the petitioner for a period of ninety
days if the adoptee is under the age of one year at the time of placement
or for a period of one hundred eighty days if the adoptee is one year
of age or older at the time of placement, unless, for good cause shown,
the requirement is waived by
the court;
(3)
all necessary consents, relinquishments, terminations or waivers have
been obtained;
(4)
the post-placement report required by Section 32A-5-31 NMSA 1978 has been
filed with the court;
(5)
service of the petition for adoption has been made or dispensed with as
to all persons entitled to notice pursuant to provisions of Section 32A-5-27
NMSA 1978;
(6)
at least ninety days have passed since the filing of the petition for
adoption, except the court may shorten or waive this period of time in
cases in which the child is being adopted by a stepparent, a relative
or a person named in the child's deceased parent's will pursuant to provisions
of Section 32A-5-12 NMSA 1978;
(7)
the petitioner is a suitable adoptive parent and the best interests of
the adoptee are served by the adoption;
(8)
if visitation between the biological family and the adoptee is contemplated,
that the visitation is in the child's best interests;
(9)
if the adoptee is foreign-born, the child is legally free for adoption
and a certificate issued by the United States secretary of state that
certifies the adoption as a convention adoption has been filed with the
court;
(10)
the results of the criminal records check required pursuant to provisions
of the Adoption Act have been received and considered;
(11)
if the adoptee is an Indian child, the requirements set forth in the federal
Indian Child Welfare Act of 1978 [FN1]
have been met;
(12)
when the child is an Indian child, the placement preferences set forth
in the federal Indian Child Welfare Act of 1978 or the placement preferences
of the appropriate Indian tribes have been followed or, if not followed,
good cause for noncompliance has been clearly stated and supported, as
required by the federal Indian Child Welfare Act of 1978 and provision
has been made to ensure that the Indian child's cultural ties to the Indian
child's tribe are protected and fostered; and
(13)
if the adoption involves the interstate placement of the adoptee, the
requirements of the Interstate Compact on the Placement of Children have
been met.
G.
In addition to the findings required by Subsection F of this section,
the court in any decree of adoption shall make findings with respect to
each allegation of the petition.
H.
If the court determines that any of the requirements for a decree of adoption
pursuant to provisions of Subsections E and F of this section have not
been met or that the adoption is not in the best interests of the adoptee,
the court shall deny the petition and determine, in the best interests
of the adoptee, the person who shall have custody of the child.
I.
The decree of adoption shall include the new name of the adoptee and shall
not include any other name by which the adoptee has been known or the
names of the former parents. The decree of adoption shall order that from
the date of the decree, the adoptee shall be the child of the petitioner
and accorded the status set forth in Section 32A-5-37 NMSA 1978.
J.
A decree of adoption shall be entered within six months of the filing
of the petition if the adoptee is under the age of one year at the time
of placement or twelve months if the adoptee is one year of age or older
at the time of placement, except that the time may be extended by the
court upon request of any of the parties or upon the court's own motion
for good cause shown.
K.
A decree of adoption may not be attacked upon the expiration of one year
from the entry of the decree; provided, however, that in any adoption
involving an Indian child, the Indian child's parent or Indian custodian
may petition the court pursuant to the provisions of the federal Indian
Child Welfare Act of 1978 to invalidate the adoption.
L.
In any adoption involving an Indian child, the clerk of the court shall
provide the secretary of the interior with a copy of any decree of adoption
or adoptive placement order and other information as required by the federal
Indian Child Welfare Act of 1978.
L.
1993, Ch. 77, § 163; L. 1995, Ch. 206, § 42, eff. July 1, 1995;
L. 2003, Ch. 294, § 5, eff. July 1, 2003; L. 2003, Ch. 321, §
5, eff. July 1, 2003.
[FN1]
25 U.S.C.A. § 1901 et seq.
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