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SENATE BILL 406
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Linda M. López and Antoinette Sedillo Lopez
AN ACT
RELATING TO CHILD WELFARE; REMOVING A PRESUMPTION OF
ABANDONMENT AS A BASIS TO CONSIDER TERMINATION OF PARENTAL
RIGHTS IN ABUSE OR NEGLECT CASES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 32A-4-28 NMSA 1978 (being Laws 1993,
Chapter 77, Section 122, as amended) is amended to read:
"32A-4-28. TERMINATION OF PARENTAL RIGHTS--ADOPTION
DECREE.--
A. In proceedings to terminate parental rights, the
court shall give primary consideration to the physical, mental
and emotional welfare and needs of the child, including the
likelihood of the child being adopted if parental rights are
terminated.
B. The court shall terminate parental rights with
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respect to a child when:
(1) there has been an abandonment of the child
by the child's parents; or
(2) the child has been a neglected or abused
child as defined in the Abuse and Neglect Act and the court
finds that the conditions and causes of the neglect and abuse
are unlikely to change in the foreseeable future despite
reasonable efforts by the department or other appropriate
agency to assist the parent in adjusting the conditions that
render the parent unable to properly care for the child. The
court may find in some cases that efforts by the department or
another agency are unnecessary, when:
(a) there is a clear showing that the
efforts would be futile; or
(b) the parent has subjected the child
to aggravated circumstances [or
(3) the child has been placed in the care of
others, including care by other relatives, either by a court
order or otherwise and the following conditions exist:
(a) the child has lived in the home of
others for an extended period of time;
(b) the parent-child relationship has
disintegrated;
(c) a psychological parent-child
relationship has developed between the substitute family and
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the child;
(d) if the court deems the child of
sufficient capacity to express a preference, the child no
longer prefers to live with the natural parent;
(e) the substitute family desires to
adopt the child; and
(f) a presumption of abandonment created
by the conditions described in Subparagraphs (a) through (e) of
this paragraph has not been rebutted.
C. A finding by the court that all of the
conditions set forth in Subparagraphs (a) through (f) of
Paragraph (3) of Subsection B of this section exist shall
create a rebuttable presumption of abandonment ].
[D.] C. The department shall not file a motion, and
shall not join a motion filed by another party, to terminate
parental rights:
(1) when the sole factual basis for the motion
is that a child's parent is or was formerly incarcerated; or
(2) if the motion is based, to any extent, on
the fact that the child is an Indian child or that the child's
parent or parents are Indian.
[E.] D. If the court finds that parental rights
should be terminated; that the requirements for the adoption of
a child have been satisfied; that the prospective adoptive
parent is a party to the action; and that good cause exists to
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waive the filing of a separate petition for adoption, the court
may proceed to grant adoption of the child, absent an appeal of
the termination of parental rights. The court shall not waive
any time requirements set forth in the Adoption Act [unless the
termination of parental rights occurred pursuant to the
provisions of Paragraph (3) of Subsection B of this section ].
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 set forth in the Adoption Act. Unless
otherwise stipulated by all parties, an adoption decree shall
take effect sixty days after the termination of parental
rights, to allow the department sufficient time to provide
counseling for the child and otherwise prepare the child for
the adoption. The adoption decree shall conform to the
requirements of the Adoption Act and shall have the same force
and effect as other adoption decrees entered pursuant to that
act. The court clerk shall assign an adoption case number to
the adoption decree."
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