23.1 PURPOSE
Four separate statutes potentially apply to a request for appointment of a guardian for a child:

• §§32A-4-31 and 32A-4-32, relating to appointment of a guardian in the context of an abuse and neglect proceeding;
• §§45-5-201 to 45-5-212, relating to appointment under the Probate Code;
• §32A-2-14(K), relating to appointment of a guardian as a basic right guaranteed a juvenile in delinquency proceedings; and
• §§40-10B-1 to 40-10B-15, relating to the appointment of a guardian under the Kinship Guardianship Act, enacted in 2001. See Handbook, Chapter 30A.

Permanent guardianship under the Abuse and Neglect Act gives the guardian all of the rights and responsibilities of a parent except for those listed in the decree of permanent guardianship, if any. §32A-4-31(A). The decree is not a termination of parental rights and a child’s inheritance rights are not affected. §32A-4-32(F).

While termination of parental rights together with adoption provides permanency for many children, something not quite so final is the better option for others. For example, the child may be a 15 year old who would prefer to live with his grandparents than be adopted, or other relatives may be willing to raise a child whose parent is in prison. Guardianship is an option in such cases.

23.2 TIMELINE
There is no specific timeline applicable to the appointment of a permanent guardian under the Abuse and Neglect Act. However, the court cannot act on a motion for permanent guardianship until it makes the findings required by §32A-4-31(C). For these findings, see §23.10 below.

23.3 INITIATION
Any party may file a motion for permanent guardianship. If someone other than the prospective guardian files the motion, the motion must be verified by the prospective guardian. §32A-4-32(A) and (C).

The motion must state:

• The date, place of birth and marital status of the child, if known;
• The facts and circumstances supporting the ground for permanent guardianship;
• The name and address of the prospective guardian and a statement that the person agrees to accept the duties and responsibilities of guardianship;
• The basis for the court’s jurisdiction;
• The relationship of the child to the petitioner and the prospective guardian, if different from the petitioner; and
• Whether the child is subject to the Indian Child Welfare Act. §32A-4-32(B).

If the Indian Child Welfare Act applies to the child, the motion must also state:

• The tribal affiliations of the child's parents;
• The specific actions taken by the petitioner to notify the parents’ tribes and the results of the contacts, including the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the tribes must be attached as exhibits; and
• The specific efforts that were made to comply with the placement preferences in ICWA or the placement preferences of the tribes. §32A-4-32(B).

23.4 SERVICE AND NOTICE
Notice of the filing of the motion, together with a copy of the motion, must be served by the moving party on:

• the child’s parents, including any parent who has not previously been made a party to the proceeding;
• foster parents with whom the child is residing;
• the foster parent, preadoptive parent, or relative providing care for the child with whom the child has resided for six months;
• the child’s custodian,
• CYFD;
• any person appointed to represent a party, including the child’s guardian ad litem or youth attorney; and
• other persons the court orders provided with notice. §32A-4-32(D).

If the child is an Indian child, in addition to the people listed above, notice must be served on the tribes of the child’s parents and any Indian custodian as defined in the Indian Child Welfare Act. Id.

The notice and motion must be served in accordance with the Children’s Court Rules for the service of motions. Id.

23.5 ISSUES TO BE CONSIDERED
In proceedings for permanent guardianship, the court must give primary consideration to the physical, mental and emotional welfare and needs of the child. §32A-4-31(A).

Any adult, including a relative or foster parent, may be appointed as a permanent guardian, but an institution may not. In any case involving a child in CYFD’s custody, CYFD’s consent to the guardianship must be obtained. If the child is fourteen (14) years of age or older, he or she may nominate his or her own guardian, and the court must appoint that person, unless the court finds the appointment is contrary to the child’s best interests. §32A-4-31(B).

Besides finding that the guardianship is in the child’s best interest, the court must also determine that: (1) the child has been adjudicated abused or neglected; (2) CYFD has made reasonable efforts to reunite the child with the parent, and further efforts would be unproductive; (3) reunification would not be in the child's best interests because the parent is unwilling or unable to properly care for the child; and (4) the likelihood of adoption is remote, or termination of parental rights would not be in the child's best interests. §32A-4-31(C).

23.6 STIPULATIONS
A stipulation to appoint a permanent guardian for a child must be made in the context of a pending motion. Guardians are ill-advised to enter into private informal agreements regarding guardianship of a child. It is doubtful that such agreements will be recognized as binding agreements between the parties to appoint one of the parties as the permanent guardian of the child. See In the Matter of the Guardianship of Ashley B.G., 1998-NMCA-003, 124 N.M. 468. However, nothing in the Children’s Code precludes the court from entering an order appointing a permanent guardian if the parties stipulate to the findings required by §32A-4-31(C) and the court is assured that the parent’s consent is knowingly and intelligently given.

23.7 CONTESTED CASE
The finding on abuse and neglect required for permanent guardianship is that the child has been adjudicated an abused or neglected child. §32A-4-31(C). The allegation of abuse or neglect is not relitigated on the motion for permanent guardianship. However, other issues, such as reasonable efforts or best interests of the child, could be contested. While the appointment of a permanent guardian does not terminate parental rights, the children's court must conduct a trial and make the findings listed in §23.10 below.

Note that instead of finding that termination of parental rights would be in the child's best interests, as in the case of TPR, the court must specifically find either that the likelihood of adoption is remote or that termination of parental rights would not be in the child's best interests.

23.8 EVIDENCE
The Rules of Evidence apply to a hearing on a motion for permanent guardianship. Rule 10-115.

23.9 BURDEN OF PROOF
The grounds for permanent guardianship must be proved by clear and convincing evidence. In the case of an Indian child, the grounds must be proven beyond a reasonable doubt and meet the requirements of 25 U.S.C. §1912(f). §32A-4-32(E). Section 1912(f) of the Indian Child Welfare Act requires evidence, including expert testimony, that continued custody in the parent or Indian custodian is likely to result in serious emotional or physical harm to the child. See Handbook §39.2.9 on ICWA's evidentiary standards.

23.10 FINDINGS AND ORDER
In order to appoint a permanent guardian, the children's court must find that the guardianship is in the best interest of the child and must make four additional findings prior to the appointment:

• the child has been adjudicated abused or neglected;
• CYFD has made reasonable efforts to reunite the child with the parent, and further efforts would be unproductive;
• reunification would not be in the child's best interest because the parent continues to be unable or unwilling to properly care for the child; and
• either the likelihood of adoption is remote, or termination of parental rights would not be in the child's best interest. §32A-4-31(C).

If the child is fourteen or older, the court must appoint a person nominated by the child, unless the court finds the appointment contrary to the child’s best interest. §32A-4-31(B).

Upon a finding that grounds exist for a permanent guardianship, the court may incorporate into the final order provisions for:

• visitation with the natural parents, siblings, or other relatives; or
• any other provision necessary to rehabilitate the child or provide for the child’s continuing safety and well-being. §32A-4-32(G). This could include child support from the biological parents.

The court retains jurisdiction to enforce its judgment of permanent guardianship. §32A-4-32(H).

23.11 PERIODIC JUDICIAL REVIEW
A judicial review hearing must be held within six months of the court’s decision on a motion for permanent guardianship, and every six months thereafter. For information about judicial review hearings, see Handbook Chapter 21.

23.12 REVOCATION OF ORDER
Any party to the abuse or neglect proceeding may move for revocation of the order granting guardianship when there is a “significant change of circumstances,” including that:

• the parent is able and willing to properly care for the child; or
• the guardian is unable to properly care for the child. §32A-4-32(I).

The court may revoke the order when a significant change of circumstances has been proven by clear and convincing evidence and it is in the child’s best interest to revoke the order. §32A-4-32(K).

The court must appoint a GAL for the child in the revocation proceeding. §32A-4-32(J).

If there are allegations of abuse or neglect by the permanent guardian after establishment of the guardianship, the proceedings to revoke the permanent guardianship could lead to the ultimate termination of parental rights of the biological parent. State ex rel. CYFD v. Browind C., 2007-NMCA-023, 141 N.M. 166.

23.13 DISTINGUISHING GUARDIANSHIP UNDER PROBATE CODE AND KINSHIP GUARDIAN ACT

23.13.1 PROBATE CODE
The Probate Code provides that "[t]he court may appoint a guardian for an unmarried minor if all parental rights of custody have been terminated or suspended by circumstances or prior court order." §45-5-204. Unlike the Abuse and Neglect Act, the Probate Code does not provide authority for the appointment of a guardian in a situation where parental rights have not been terminated or suspended. See, e.g. In the Matter of the Guardianship of Ashleigh R., 2002-NMCA-103, 132 N.M. 772, and In the Matter of the Guardianship Petition of Lupe C., 112 N.M. 116 (Ct. App. 1991).

In Lupe C., the court held that a parent’s right to custody is not suspended by circumstances if in fact the parent has lawful custody, is present, and has not voluntarily relinquished physical custody of the child. 112 N.M. at 120. Rather, the Children’s Code provides the mechanism for removing a child from the custody of a parent where the parent has and is exercising custody of the child. 112 N.M. at 122.

The court in Ashleigh R. held that the district court erred in appointing the grandparents as guardians under the Probate Code when the mother contested the appointment, even though the child was living with the grandparents at the time they filed for guardianship. Parental rights are not “suspended by circumstances” just by virtue of the fact that the parent had voluntarily relinquished custody. 2002-NMCA-103, ¶¶7-11.

A question that the courts and members of the legal community have debated over the past several years is whether and how a prospective guardian, concerned about a child’s well-being, may obtain guardianship when the parent still has a right to custody, has not consented to the guardianship, and is not the subject of a pending abuse or neglect proceeding filed by CYFD. The Kinship Guardianship Act, passed by the legislature in 2001, addresses many of these situations, although not all of them.

23.13.2 KINSHIP GUARDIAN ACT
The Kinship Guardianship Act, §§40-10B-1 to 40-10B-15, was enacted in 2001 to address the need to establish a legal relationship between a child and a kinship caregiver when the child is not residing with either parent. The Act provides for a caregiver’s affidavit, for short term situations where medical or educational issues need to be addressed. Also, a caregiver with whom a child resides and who provides the child with the care, maintenance and supervision consistent with what a parent provides, may petition the court for guardianship. The court may appoint a guardian if the parent consents in writing, the parent’s rights have been terminated or suspended by prior court order, or the child has been residing with the petitioner for 90 days or more and the parent is currently unwilling or unable to care for the child or there are extraordinary circumstances.

Kinship guardianships enable caregivers to secure educational services and medical care and to meet other needs of the children in their care. They are also intended to provide children with a stable and consistent relationship with a kinship caregiver that will enable the child to develop physically, mentally and emotionally. Again, though, it is important to recognize the limits of kinship guardianship as an option. For someone to be able to petition the court for appointment under the Kinship Guardianship Act, the person must be an adult with whom the child resides and who provides the child with the care, maintenance and supervision consistent with the duties and responsibilities of a parent of the child. Like guardianship under the Probate Code, kinship guardianship does not authorize the court to remove the child from the parents’ home. See Handbook Chapter 30A for a more detailed summary of the Kinship Guardianship Act.

23.14 CHECKLIST
Click here for Permanent Guardianship Hearing checklist.

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