30.1 INTRODUCTION
The Adoption Act was enacted by the New Mexico Legislature as part of the extensive revision of the Children’s Code in 1993. See §§32A-5-1 through 32A-5-45. It has been further amended in 2001, 2003, and 2005 to implement at the state level the Hague Convention on intercountry adoptions and the federal Intercountry Adoption Act, and to make state law consistent with the federal Child Abuse Prevention and Treatment Act.

The Adoption Act governs the range of adoptions that take place – the adoption of children who are in CYFD’s custody, as well as adoptions handled by private child placement agencies, independent adoptions and intercountry adoptions. However, there are certain ways in which adoptions taking place in connection with abuse or neglect proceedings are handled differently than other adoptions. This chapter discusses the range of adoptions and their accompanying procedures.

The Adoption Act authorizes CYFD to adopt regulations to implement the Act. These regulations are presently found in Title 8, Chapter 26 of the New Mexico Administrative Code.

30.2 ADOPTION IN THE ABUSE OR NEGLECT CASE

30.2.1 WHEN ADOPTION CAN BE GRANTED IN ABUSE OR NEGLECT CASES
Adoption is one of the possible outcomes of an abuse or neglect proceeding. If the court in the abuse or neglect case is hearing a motion to terminate parental rights, the court may also consider adoption in the same proceeding. An adoption petition does not have to be filed in a separate proceeding with a separate filing fee. This approach is most often taken in the case of “foster care conversion,” where the foster parents have intervened in the abuse or neglect case and want to adopt the child. They can file a motion to adopt in the course of the case, and no filing fees would be required.

Absent an appeal of the TPR, the court may proceed to grant adoption of the child if the court finds that: 

•  parental rights should be terminated;
• the requirements for the adoption of a child have been satisfied;
• the prospective adoptive parent is a party to the action; and
• good cause exists to waive the filing of a separate petition for adoption.  §32A-4-28(E).

As noted, it is essential that the prospective adoptive parent be a party to the abuse or neglect proceeding if the court is to consider a motion to adopt in the same action.  To determine who may intervene and become parties to the abuse or neglect action, see Chapter 25.  If the prospective adoptive parent is not a party to the abuse or neglect proceeding, an adoption petition would have to be filed in a separate action under the Adoption Act.  See discussion below.

30.2.2 COMPLIANCE WITH THE ADOPTION ACT
As a general rule, adoptions heard in abuse and neglect cases must still comply with the requirements of the Adoption Act. Under §32A-4-28(F), the court may enter a decree of adoption only after finding that the party seeking to adopt the child has satisfied all of the requirements of that Act.

Section 32A-4-28(F) specifically provides that the court and the parties must comply with the time requirements in the Adoption Act, unless the termination of parental rights occurs under §32A-4-28(B)(3), which allows for TPR where the parent-child relationship has disintegrated and other conditions are met. See Handbook §22.4.4. 

Until the most recent legislative changes, a child ten years of age or older could not be adopted without the child’s consents to the adoption unless the court found that the adoptee did not have the mental capacity to give consent. §32A-5-17. In 2005, the law was changed to provide that a child’s consent to adoption is required only if the child is age fourteen or older. As before, the child’s consent is not required if the court finds that the child does not have the mental capacity to consent. §32A-5-17.

Any adoption decree entered pursuant to the Abuse and Neglect Act must conform to the requirements of the Adoption Act. The court will assign an adoption case number to the decree, which will have the same force and effect as other adoption decrees. §32A-4-28(F).

30.2.3 EFFECTIVE DATE OF ADOPTION
Unless otherwise stipulated by the parties, the adoption decree cannot take effect for sixty days after the termination of parental rights, which allows CYFD sufficient time to provide counseling for the child and otherwise prepare the child for adoption. §32A-4-28(F).

30.3 PROCEEDINGS UNDER THE ADOPTION ACT
The Adoption Act is intended to be a practical guide for the legal practitioner and the judge. Many of the sections contain lists of requirements to be addressed at the various steps in the proceedings, from the initiation of a petition for adoptive placement through the obtaining of a final decree of adoption.

30.3.1 CONFIDENTIALITY OF RECORDS
After the petition for adoption is filed and before the decree is entered, the records in an adoption proceeding are open to inspection by only the attorney for the petitioner, the department or the agency, the adoptee’s GAL, any attorney retained by the adoptee or other persons upon order of the court for good cause shown. All records, whether on file with the court, an agency, CYFD, an attorney or other provider of professional services in connection with an adoption are confidential and may be disclosed only in accordance with the Adoption Act. Hearings in adoption proceedings are confidential and must be held in closed court without admittance of any person other than parties or their counsel. §32A-5-8. In 2005, the legislature enacted penalties for violating confidentiality in an adoption proceeding. A person who intentionally and unlawfully releases any information or records that are confidential under the Adoption Act or who makes other unlawful use of these records is guilty of a petty misdemeanor. §32A-5-8(D) (added in 2005).

30.3.2 CONSENT AND RELINQUISHMENT
Under the Adoption Act, an adoption cannot be granted unless the following people consent to the adoption or relinquish their parental rights:

1. The adoptee, if fourteen years or older, except when the court finds that the adoptee does not have the mental capacity to give consent;
2. The adoptee’s mother;
3. The adoptee’s adoptive parent;
4. The adoptee’s presumed father (see Appendix B for the definition of "presumed father");
5. the adoptee's acknowledged father (see Appendix B and Helen G. v. Mark J. H., No. 30021, slip opinion (NMSC Nov. 26, 2007)); 
6. CYFD or the agency to whom the adoptee has been relinquished that has placed the adoptee up for adoption, unless the court finds that the withholding of consent by CYFD or the agency is unreasonable; and
7. the guardian of the adoptee’s parent when, pursuant to the Probate Code, that guardian has express authority to consent to adoption.
8. In the case of an Indian child, consent to the adoption or relinquishment of parental rights must be obtained from an “Indian custodian” as required by the Indian Child Welfare Act (see Chapter 39). §32A-5-17.

As noted above, an adoption cannot be granted unless the acknowledged father consents or relinquishes his parental rights.  In Helen G. v. Mark J. H. (In the Matter of the Adoption Petition of Bobby A. Romero), No. 30021, slip opinion (NMSC Nov. 26, 2007), the New Mexico Supreme Court reviewed and reversed the Court of Appeals decision at 2006-NMCA-136, 140 N.M. 618.  The Supreme Court held that the biological father had not taken sufficient steps to become an acknowledged father under the Adoption Act.  The Supreme Court agreed with the Court of Appeals that, when the basis of the father’s status as an acknowledged father is registration with the putative father registry, the father’s consent to an adoption is required only if he registered within ten days of the child’s birth.  Slip opinion, ¶14.  However, the Supreme Court reversed the Court of Appeals on the basis that Mark was not an “otherwise … acknowledged father” entitled to the right to consent under §32A-5-19.  The filing of a paternity action and petition for custody in response to the petition for adoption is insufficient to give the biological father the status of “acknowledged father” under the Adoption Act.  Id. ¶¶24-32.  The father must bring such an action before the adoption petition is filed.  Id. ¶30.  Importantly, the Court held that under the Adoption Act the “mere” biological relationship is not sufficient to give a father a veto over an adoption.  Id. ¶¶8, 32 and 34. 

Helen G v. Mark J.H. was a case in which the Court relied on the district court’s finding that the father knew or should have known that he had likely fathered a child by mother, and this finding was important to the Court’s decision. The Court indicated that there may be different considerations where a father had no reason to know that he fathered a child or where a mother affirmatively rejected support and assistance from the father and the father was not otherwise aware of a possible adoption. Slip opinion, ¶49.

Consent or relinquishment can be implied where the parent, without justifiable cause:

• left the adoptee without provision for the child’s identification for a period of 14 days; or
• left the adoptee with others, including the other parent or an agency, without provision for support and without communication for a period of three months if the adoptee was under the age of six at the commencement of the 3 month period; or six months if the adoptee was over the age of six at the commencement of the six month period.  §32A-5-18(A).

Consent or relinquishment may not be implied unless notice of hearing is served on the parent in question; the court must make a decision on the implied consent before proceeding to the adjudicatory hearing on the adoption.  §32A-5-18(B).

Consent or relinquishment is not required of:

• a parent whose rights have been terminated pursuant to law;
• a parent who has relinquished the child to an agency for adoption;
• a biological father of an adoptee conceived as a result of rape or incest;
• any person who has failed to respond when given notice of the adoption proceeding under §32A-5-27;
• any alleged father who failed to register with the putative father registry within 10 days of the child’s birth and who is not the acknowledged father.  §32A-5-19; see Appendix B for the definition of alleged father.

Before consenting to an adoption, the parent or parents must usually go through counseling.  §32A-5-22.  The consent itself must be in writing and must provide all of the information required by §32A-5-21, including a statement in closed adoptions that all parties understand that the court will not enforce any contact, regardless of any informal agreements made by the parties.  §32A-5-21(A)(7), added in 2005. In addition, the consent must be signed before and approved on the record by a judge who has jurisdiction over adoptions.  §32A-5-23, as amended in 2005.  Licensed adoption agencies are no longer authorized to take consents to adoption.

The counseling requirements as well as the requirements for the written form of the consent or relinquishment are described in detail in Chapter 22 on termination of parental rights.  See Handbook §§22.2 and 22.3 on voluntary termination (relinquishment).

When a parent elects to relinquish parental rights to CYFD in connection with an abuse or neglect proceeding, a motion to accept the relinquishment is heard in the abuse and neglect case.  §32A-5-24; see Handbook §§22.2 and 22.3.

30.3.3 INVOLUNTARY TERMINATION OF PARENTAL RIGHTS
If the parents of the child do not relinquish their parental rights to free the child for adoption, the court may consider a petition to terminate parental rights (TPR). The TPR can take place in a separate action prior to the filing of the petition to adopt, simultaneously with the petition to adopt, or after the filing of the petition to adopt by motion in the adoption proceeding. The proceeding may be initiated by CYFD, by a child placement agency, or any other person having a legitimate interest in the matter, including a petitioner for adoption. The petition must state, among other things, that the petition is in contemplation of adoption. §§32A-5-15, 32A-5-16.

Upon request, the court will appoint counsel for an indigent parent who is unable to obtain counsel. Additionally, the court has discretion to appoint counsel for an indigent parent if counsel is required in the interest of justice. In either case, counsel will be paid at the rate determined by the Supreme Court for court-appointed attorneys. A GAL will be appointed for the child in all contested cases.

The grounds for termination must be proven by clear and convincing evidence, except in cases involving Indian children, where the standard is beyond a reasonable doubt. §32A-5-16(E)-(H); see Handbook §39.2.9

The physical, mental and emotional welfare and needs of the child are the primary considerations for termination. The court may terminate parental rights under the Adoption Act for the same reasons as are outlined in the Abuse and Neglect Act: abandonment, abuse or neglect, or disintegration of the parent-child relationship (presumptive abandonment). However, the Adoption Act does not contain a requirement that CYFD make reasonable efforts to work with the parents when abuse or neglect is alleged. §32A-5-15; see Handbook §22.4 on the grounds for termination under the Abuse and Neglect Act.

In Matter of the Adoption of J.J.B., 119 N.M. 638 (1995), a biological father sought reversal of the trial court’s decision to terminate his parental rights. Deciding that any presumption of abandonment under the predecessor to §32A-4-28(B)(3) and §32A-5-15(B)(3) was rebutted as a matter of law, the New Mexico Supreme Court held that proof of abandonment required a showing that parental conduct evidenced a conscious disregard of obligations owed to the child and that such conduct lead to the disintegration of the parent-child relationship. The court emphasized that “evidence of the disintegration of the parent-child relationship is of no consequence if not caused by the parent’s conduct.” 119 N.M. at 648, 651.

In Helen G. v, Mark J.H., 2006-NMCA-136, 140 N.M. 618, the Court of Appeals reversed the termination of a biological father’s parental rights in an adoption proceeding because the district court erroneously relied exclusively on the father’s conduct prior to the child’s birth to establish that the father caused the disintegration of the parent-child relationship. Explaining that the father “could not have a ‘relationship’ with the child in utero,” the court concluded that there was no “relationship that could be subject to disintegration until the child was born.” Id. ¶37. Because the district court “improperly focused on [the father’s] pre-birth conduct,” the Court of Appeals concluded that the district court’s finding that the father presumptively abandoned the child was not supported by substantial evidence. Id. ¶40. The New Mexico Supreme Court reversed the decision of the Court of Appeals on other grounds and did not address the abandonment issue. Helen G. v. Mark J. H., No. 30,021, slip opinion, ¶¶6 and 51 (NMSC Nov. 26, 2007). It remains to be seen whether the Court would consider steps taken or not taken during pregnancy to affect a determination of abandonment for purposes of TPR.

If the court terminates parental rights, it must appoint a custodian for the child. The court may commit the child to the custody of CYFD, the petitioner, or an agency willing to accept custody for the purpose of placing the child for adoption. In the case of an Indian child, the termination order must include specific findings under ICWA. §32A-5-16(I); see Chapter 39. 

30.3.4 PLACEMENT FOR ADOPTION
Before a petition for adoption can be granted, the adoptee must be placed in the home of the petitioner. Placement is made by CYFD, by an appropriate public authority of another state, by a placement agency, or by court order. §32A-5-12(A). There is an exception to this placement requirement for adoptions taking place under the Abuse and Neglect Act. §32A-5-12(B). The rule also does not apply to certain independent adoptions, that is, stepparent or relative adoptions where the child has lived with the stepparent or relative for one year prior to the filing of the petition or situations where the person designated to care for the child in the will of the deceased parent wants to adopt the child and the child has lived with that person for one year. §32A-5-12(C).

When a placement order is required, the petitioner must file a request with the court to allow the placement. A hearing and the court decision on the request for placement must occur within thirty days of the filing of the request. §32A-5-13(H). Although placement may not take place until an order is obtained, §32A-5-13(A), an order allowing placement may be entered prior to service of the request for placement. §32A-5-13(G).

As a general rule, a pre-placement study, formerly known as a home study, is filed prior to the hearing on the request for placement. The requirements for a pre-placement study are described in detail in §32A-5-14. The pre-placement study must be current, which means that it was prepared or updated within one year immediately prior to the date of placement. §32A-5-13(B). The court’s order allowing placement must include a finding that the study complies with §32A-5-14. §32A-5-13(I).

In all adoptions, prior to any placement being made, the person making the placement must provide full disclosure. §32A-5-12(E). “Full disclosure” is defined as mandatory and continuous disclosure by the investigator, agency, department or petitioner throughout the proceeding and after finalization of the adoption of all known, nonidentifying information regarding the adoptee, including health history, psychological history, mental history, hospital history, medication history, genetic history, physical descriptions, social history, placement history and education. §32A-5-3(N).

30.3.5 FINGERPRINTING AND CRIMINAL HISTORY RECORDS CHECK
In 2003, the Adoption Act was amended to require CYFD to fingerprint all persons filing petitions to adopt a child and to undertake a nationwide criminal history records check on each petitioner.  §32A-5-14.1.  Later in 2003, Congress amended the federal Child Abuse Prevention and Treatment Act by expanding the investigation required before placing a child in a foster or adoptive home.  Consequently, the New Mexico legislature has again amended the Adoption Act.  Under the 2005 amendments, CYFD is required to obtain fingerprints and complete a nationwide criminal history check of all adults living in the home of a prospective foster or adoptive parent. §§32A-5-14.1, 32A-15-3.

Criminal history records obtained by CYFD are confidential and may not be released or disclosed to any other person or agency except by court order or with the written consent of the person who is the subject of the record.   Anyone who releases or discloses criminal history records or information contained in those records without a court order or written consent of the person concerned is guilty of a misdemeanor.  §§32A-5-14.1(B) and (C), 32A-15-3(C)-(E).

30.3.6 PETITION FOR ADOPTION
A petition for adoption must be filed within sixty days of the adoptee’s placement in the proposed adoptive home if the adoptee is under the age of one, or within 120 days if the adoptee is over the age of one, at the time of placement. Extensions of time are permitted under certain conditions. §32A-5-25.

The allegations that must be included in a petition for adoption are set forth with specificity in §32A-5-26. If anonymity is being preserved, the adoptee’s birth name can be filed by counsel for petitioner in a separate document. §32A-5-26(D). If the adoptee is an Indian child, any correspondence from the tribe must be attached to the petition and the efforts made to follow the placement preferences of the Indian Child Welfare Act must be stated. §32A-5-26(M); see Handbook §39.3 on placement preferences under ICWA.

CYFD must be given notice of the petition, which is accomplished by leaving a copy of the petition with the clerk of the court, who is required to mail the copy to CYFD within one working day of the petition being filed. §32A-5-7. CYFD has the authority to intervene in any action filed under the Adoption Act; intervention is effected by filing a motion for an entry of appearance and an appropriate response. §32A-5-6(C).

The Adoption Act contains a list of the persons who must be served with the petition and some additional requirements for service in the case of an Indian child. §32A-5-27(A) and (D). Notice does not have to be served on alleged fathers or on persons whose parental rights have been relinquished or terminated. §32A-5-27(B). Notice by publication is permitted if a motion is made and supported by an affidavit swearing that after investigation the identity and/or whereabouts of the parent remain unknown. §32A-5-27(F).

Any person responding to a petition for adoption must file a verified response within twenty days if the person intends to contest the adoption. However, if an agency, CYFD, or an investigator preparing the post-placement report wants to contest the adoption, they must notify the court within twenty days of completion of the post-placement report, discussed below. §§32A-5-27(E) and 32A-5-28.

The court may appoint a GAL for the adoptee at any time in an adoption proceeding upon the motion of a party or upon the court’s own motion. . A GAL must be appointed for an adoptee when the adoption is contested. §§32A-5-33. The court shall adopt a presumption in favor of appointing a GAL for the adoptee, or a youth attorney if the adoptee is 14 or older, when visitation between the biological family and the adoptee is included in an agreement.

This presumption may be waived for good cause shown. §32A-5-35(B); see Handbook §30.4.2 on open adoption.

Pending a final decree, custody of the adoptee lies with the petitioners pursuant to §32A-5-29. The adoptee cannot leave the county during the pendency of the proceedings for more than 15 days without court permission. §32A-5-30.

30.3.7 POST-PLACEMENT REPORTS
Post-placement reports are required in adoptions. The investigation may be conducted by CYFD, an agency or a certified investigator, and may be the same entity or person who conducted the pre-placement study.

The post-placement report (formerly called the investigation) must include the information specified in §32A-5-31(A), including information concerning the interaction between petitioners and the adoptee, the adjustment of the adoptee since placement, the integration and acceptance of the adoptee by the petitioner’s family, the petitioner’s ability to meet the physical and emotional needs of the adoptee, and full disclosure as defined by the Act. The report must also contain an evaluation of the proposed adoption with a recommendation as to the granting of the petition. For a child under the age of one at the time of placement, the report must be filed with the court within 60 days of receipt of notice of the proceeding. For a child one year of age or older, the report must be filed within 120 days. Concurrently, the deliverer must forward a copy to the petitioner’s attorney or to the petitioner, if not represented by counsel, and to CYFD if the report is not generated by CYFD. The court may grant extensions as long as the report is received 30 days prior to a final hearing. §32A-5-31.

30.3.8 HEARING ON ADOPTION PETITION
The court is expected to conduct adoption proceedings in a way that protects confidentiality. The petitioner and the adoptee must attend the hearing unless the court waives a party’s appearance for good cause shown (such as burdensome travel requirements). §32A-5-36. The Rules of Evidence apply to the hearing. Rule 11-1101(A)-(B).

To grant the petition under §32A-5-36, the court must find that the petitioner has proved by clear and convincing evidence that:

• The court has jurisdiction to enter a decree of adoption affecting the adoptee;
• The adoptee has been placed with the petitioner for ninety days if under the age of one at the time of placement or for 180 days if one year of age or older, unless the requirement is waived by the court for good cause shown;
• All necessary consents, relinquishments, terminations or waivers have been obtained;
• The post-placement report has been filed;
• Service of the petition has been made or dispensed with pursuant to §32A-5-27;
• At least ninety days have passed since the filing of the petition, except that the court may shorten or waive this when the child is being adopted by a stepparent, relative or person named in the child’s deceased parent’s will, as described in §32A-5-12;
• The petitioner is a suitable adoptive parent and the best interests of the adoptee are served by the adoption;
• If visitation between the biological family and the adoptee is contemplated, that the visitation is in the child’s best interest;
• If the adoptee is foreign born, the child is legally free for adoption and a certificate issued by the U.S. Secretary of State has been filed with the court certifying the adoption as a convention adoption (see Handbook §30.4.4 below);
• The results of the criminal records checks required by the Adoption Act have been received and considered;
• When the child is an Indian child, the placement preferences of ICWA or the child’s tribe have been followed or good cause for noncompliance is clearly stated and supported and provision has been made to ensure that the child’s cultural ties to the tribe are protected and fostered (see Handbook §30.4.1 below); and
• If the adoption involves an interstate placement, the requirements of the Interstate Compact on the Placement of Children, §32A-11-l et seq., have been met. See Handbook §30.4.3 below.

Also, if a biological father, who is neither a presumed father nor acknowledged father whose consent is necessary for an adoption, is nevertheless contesting the adoption and requesting custody of the child, the court is to conduct a hearing to adjudicate the person’s rights pursuant to the provisions of the Adoption Act. §32A-5-36(C). In that instance the Court would consider evidence presented by adoptees as well as evidence presented by the biological father, and make a determination as to whether the adoption is in the best interests of the child. §32A-5-36(H) and Helen G. v. Mark J. H., No. 30,021, slip opinion, ¶35 (NMSC Nov. 26, 2007).

30.3.9 ADOPTION DECREE
A decree of adoption must be entered within six months of the filing of the petition for adoption if the adoptee is under age one or within 12 months if the adoptee is age one or over, although extensions are possible for good cause shown. In any adoption of an Indian child, the court clerk must provide the Secretary of the Interior with a copy of the adoption decree and other information as required by ICWA. §32A-5-36(J)-(L); see Chapter 39 on ICWA.

After adoption, the adopted child and the adoptive parents have the same legal relation of parent and child as if the adoptee were the biological child of the adoptive parent and the adoptive parent were the biological parent of the child. The adopted child has all rights and is subject to all of the duties of that relation, including the right of inheritance from and through the adoptive parent. §32A-5-37.

If the court determines that any of the requirements for a decree of adoption have not been met or that the adoption is not in the best interest of the child, the court must deny the petition and determine, in the child’s best interests, the person who shall have custody of the child. §32A-5-36(H). There may be circumstances in which that person is someone other than the child’s natural parents, even if parental rights have not been relinquished or terminated. In the Matter of the Adoption of J.J.B., 119 N.M. 638, 650-655 (1995).

30.3.10 REVOKING A DECREE OF ADOPTION
A decree of adoption may not be attacked more than one year after the entry of the decree, except that in the adoption of an Indian child, the parent or Indian custodian can petition to invalidate the adoption as provided in the Indian Child Welfare Act. §32A-5-36(K); see Handbook §39.2.10. 

In the case of consent to adoption or relinquishment of parental rights in non-ICWA cases, the consent or relinquishment should be challenged only before the decree of adoption is entered, and only on the grounds of fraud. §32A-5-21(I). State ex rel. HSD in the Matter of Kira M., 118 N.M. 563 (1994), addressed the statutory restriction on the revocation of consents and relinquishments. In that case, the biological mother had sought to withdraw her consent to adoption. The court observed that the legislature limited the grounds to fraud “in a sound expression of public policy in order to bring a high degree of certainty, finality, and stability to adoption and relinquishment proceedings.” 118 N.M. at 570. However, the court also recognized that the children’s court has the power to grant the request of a natural parent to withdraw consent under exceptional circumstances, if consistent with the best interests of the child. In Kira M., the facts did not provide such exceptional circumstances.

In Matter of the Adoption Petition of Drummond, 1997-NMCA-094, 123 N.M. 727, the court considered when, if ever, an adoption decree may be reopened after the statutory one-year deadline for attacking such decrees had passed. Citing Kira M., the court decided that exceptional circumstances existed in the case to justify reopening the adoption decree under Rule 60(B)(6) of the Rules of Civil Procedure. Id. ¶¶15-17.

In Drummond, the biological mother had been living with her child and her parents, who had adopted the child. In the course of the adoption, her parents assured her that nothing would change with the adoption and that she would still be the child’s mother. In fact, she remained, for all practical purposes, the child’s mother after the adoption. However, when she began dating a man her parents did not like, her parents asked her to leave the home without the child. According to the Court of Appeals, the adoption was never meant to be a real adoption or to change the mother’s actual relationship with the child. The district court’s decision to set aside the adoption decree was affirmed and the case remanded to determine the best interests of the child with regard to her custody and control. Id. ¶21.

30.4 SPECIAL CONSIDERATIONS

30.4.1 ADOPTION OF INDIAN CHILDREN
The protections set forth in the Indian Child Welfare Act, including provisions for notice to the child’s tribe, transfer to tribal court and placement preferences, apply to all proceedings involving an Indian child under the Adoption Act. §32A-5-4; see Chapter 39 on ICWA. The Adoption Act and the regulations implementing the Act also make extensive provision for the procedures to be followed in the case of the adoption of Indian children. These should be reviewed with care, together with ICWA, in any case involving an Indian child or a child who might be an Indian child.

In adoptive placements of Indian children under the state Adoption Act, preference must be given, in the absence of good cause to the contrary, to a placement with:

• a member of the child's extended family;
• other members of the child's Indian tribe; or
• other Indian families.

An Indian child accepted for pre-adoptive placement must be placed in the least restrictive setting that most approximates a family in which the child’s special needs, if any, may be met. The child must also be placed within reasonable proximity to the child’s home, taking into account the child’s special needs. For further details, see §32A-5-5.

In any pre-adoptive placement, a preference must be given, in the absence of good cause to the contrary, to a placement with:

• a member of the child's extended family;
• a foster home licensed, approved and specified by the child's tribe;
• an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
• an institution for children approved by the tribe or operated by an Indian organization that has a program suitable to meet the child’s needs.

If these preferences are not followed or if the child is placed in an institution, a plan must be developed to ensure that the Indian child’s cultural ties are protected and fostered. §32A-5-5.

The Multiethnic Placement Act does not apply to Indian children under ICWA. See Handbook §38.5.

30.4.2 OPEN ADOPTIONS
Absent a finding to the contrary, an agreement reached between the petitioner and the biological parents concerning contact with each other and the adoptee will be presumed in the best interests of the adoptee and included in the final decree of adoption pursuant to §32A-5-35(A). The contact may include:

• an exchange of identifying or non-identifying information; or
• visitation between the parents or the parents’ relatives and the petitioner or the adoptee.

Before the law was amended in 2005, the court was required to appoint a GAL for the adoptee if visitation between the biological family and the adoptee was being included in an agreement. The law now requires that the court adopt a presumption in favor of appointing a GAL. although this presumption may be waived for good cause shown. If the child is a fourteen years of age or older, the court may appoint an attorney for child. §32A-5-35(B) (as amended).

In determining whether an agreement is in the adoptee’s best interests, the court will consider the adoptee’s wishes but those wishes do not control the court’s findings as to best interests. §32A-5-35(C).

The open adoption agreement is negotiated between the adoptive and biological parents. The agreement must be in writing in some form, as it is included in the final decree of adoption. §32A-5-35(A) (contrast, Vigil v. Fogerson, 2006-NMCA-10, 138 N.M. 822 (decided in 2005)). Every agreement must contain a clause stating that the parties:

• agree to the continuing jurisdiction of the court;
• agree to the agreement; and
• understand and intend that any disagreement or litigation regarding the terms of the agreement will not affect the validity of the relinquishment of parental rights, the adoption or the custody of the adoptee.

§32A-5-35(D).

If the decree contains an agreement for contact, the court will retain jurisdiction after the decree of adoption to hear motions brought to enforce or modify the agreement. The court may not grant a request to modify unless the moving party demonstrates a change in circumstances and the agreement is no longer in the adoptee’s best interests. §32A-5-35(E).

30.4.3 INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN
The Interstate Compact on the Placement of Children is a binding reciprocal agreement among all of the states and territories of the United States. As enacted in New Mexico, the compact can be found at §32A-11-1. If an adoption involves the interstate placement of the adoptee, the requirements of the ICPC must be met. §32A-5-36(F)(13).

30.4.4 INTERCOUNTRY ADOPTIONS
In 2003, the Adoption Act was amended to implement the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption for the state of New Mexico, provide that the protections and requirements in the federal Intercountry Adoption Act apply to proceedings involving a convention adoption, and authorize CYFD to act as an accrediting entity with respect to convention adoptions. See, for example, §§32A-5-3, 32A-5-26, 32A-5-36, 32A-5-39, and 32A-5-39.1. “Convention adoption” is defined to include an adoption by a United States resident of a child who is a resident of a foreign country that is a party to the Hague Convention and an adoption of a child who is a resident of the United States by a resident of a foreign country that is a party to the Hague Convention. §32A-5-3(I).

The 2005 amendments to the Adoption Act clarify that a foreign decree or order of adoption must be recognized as if it were a New Mexico decree or order of adoption if it was entered by a court or other entity in another country acting pursuant to that country’s law or pursuant to any convention or treaty or intercountry adoption that the United States has ratified. §32A-5-39.

30.4.5 REPRODUCTIVE ALTERNATIVES
Sperm donors and artificial insemination are governed by §40-11-6. The husband of the woman who is artificially inseminated is treated as the natural father with his and her consent. On the other hand, the donor may be considered the natural father if he and the woman who is artificially inseminated consent.

Surrogate mothers are discussed in §32A-5-34. Petitioners for adoption may pay those expenses of the biological mother that are reasonably related to the adoption. §32A-5-34(A). The legislature added the reasonableness requirement in 2005 to ensure that the surrogate mother is not being paid for conceiving and carrying the child, which is prohibited by §32A-5-34(F). The biological mother may elect not to consent to the adoption or to relinquish parental rights. §32A-5-34(D).

30.5 SUBSIDIZED ADOPTIONS

30.5.1 ADOPTION OF CHILDREN WITH SPECIAL NEEDS
There are many situations in which an adoptive family is capable of providing the permanent family relationship needed by a difficult-to-place child in all respects except that the needs of the child are beyond the economic resources and ability of the family. In these cases, CYFD may make payments to the adoptive parents or to medical vendors on behalf of the child. §32A-5-44(A).

According to the statute, a difficult-to-place child is one who has a mental, physical or emotional disability or who is in special circumstances by virtue of age, sibling relationship or racial background. §32A-5-44(B).

Subsidy payments may include payments to vendors for medical or surgical expenses and payments to the adoptive parents for maintenance and other costs incidental to the adoption, care, training and education of the child. Payments may be made until the child reaches age 18 unless the child is enrolled in the medically fragile waiver program, in which case payments may continue until the child is 21. A written agreement between the adoptive parents and CYFD outlining the terms and conditions of the subsidy plan based on the individual needs of the child should precede the decree of adoption. §32A-5-45(B) and (C).

30.5.2 SOURCES OF FUNDS FOR SUBSIDIZED ADOPTIONS
There are currently two sources of funds for subsidies for parents adopting special needs children. The primary source is Title IV-E of the federal Social Security Act. See Handbook §38.3. Title IV-E funds may be available if the child was eligible for Title IV-E foster care maintenance payments or if the child meets the requirements of Title XVI of the Social Security Act for the receipt of Supplemental Security Income benefits. 42 U.S.C. §673(a)(2). State funds are also available for adoption subsidies.

30.6 USEFUL CHECKLISTS
The Children’s Court Division of the 2nd Judicial District Court has approved the use of two checklists in adoption cases. The first is a Consent and Relinquishment Checklist (PDF) that may be used by judges taking a party’s consent to adoption or relinquishment of parental rights. The second is a checklist used by the Trial Court Administrative Assistant (PDF) for proper maintenance of the court’s adoption files. Both checklists are presented here as examples of useful court tools.

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