Current through Register Vol. 35, No. 11, June 11, 2024
Section 8.26.3.44 - ADOPTION OF AN INDIAN CHILDA. See Sections 32A-5-4 and 32A-5-5 NMSA 1978.B. In addition to other applicable requirements of the Act and regulations, the following provisions shall apply to the adoption of an Indian child subject to the ICWA as defined in Section 7.10 [see compiler's note].C. Purpose: The purpose of this regulation is to promote the public policy of enforcing compliance with the ICWA in the state of New Mexico and protecting the integrity of tribal communities.D. Procedure for verification of a child's Indian status: If the petitioner, petitioner's attorney, the biological parent's attorney, the department, the investigator or agency charged with investigating an adoption has any reason to believe the child to be adopted may be a child subject to the ICWA, it shall be the responsibility of such person to verify the adoptee's Indian status and to notify the court in which the adoption proceeding is pending of the adoptee's Indian status. Verification of a child's Indian status shall include at a minimum: (1) interviews with persons or agencies who may have information about the child's family background;(2) written inquiry and notice to any and all tribes with which the child may be affiliated or eligible for enrollment as a member. Such inquiry shall include all available information from which a tribe may reasonably be able to determine the child's tribal affiliation or eligibility for enrollment as a member, and notice of the pending adoption proceeding, provided, however, that notification to a tribe or tribal agency shall be consistent with the provisions of the ICWA concerning the desire of a parent for anonymity; and(3) if it is not possible to identify the Indian child's tribe, the petitioner shall contact the BIA for assistance at the Albuquerque Area Office, P.O. Box 26567, Albuquerque, New Mexico 87125-6567.E. Anonymity of biological parents: Every effort shall be employed to protect the anonymity of the biological Indian parent. However, the ICWA placement preferences shall be observed. See Section 32A-5-5 NMSA 1978.F. Jurisdiction: (1) Exclusive tribal court jurisdiction: A petition for adoption of an Indian child who resides or is domiciled on a reservation shall be filed in the tribal court of that Indian tribe.(2) Concurrent state court jurisdiction: If the Indian child resides or is domiciled outside the reservation, the petition for adoption may be filed in state court or the Indian child's tribal court.(3) Transfer from state court to tribal court: If a petition for adoption is filed in state court, either biological parent, the Indian custodian, or the Indian child's tribe may petition the court for transfer of the proceeding from state court to tribal court. In the absence of a showing and finding of good cause to the contrary, the state court shall transfer the proceeding to the tribal court. However, such transfer shall be subject to refusal of jurisdiction by the tribal court.G. Placement preferences: Any adoptive placement of an Indian child shall be in accordance with the placement preferences established by the ICWA unless the Indian child's tribe establishes a different order of preference by resolution. (1) ICWA placement preferences: In any adoptive placement of an Indian child under the act, a preference shall be given, in the absence of good cause to the contrary, to a placement in the following declining order of preference:(a) a member of the child's extended family;(b) other members of the Indian child's tribe; or(c) other Indian families.(2) Social and cultural standards for application of placement preferences: The standards to be applied in meeting the preference requirements shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.H. Termination of parental rights: (1) Standard of proof: The grounds for termination of parental rights of an Indian child shall be supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the Indian child by the Indian parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child.(2) Notice: Notice shall be given pursuant to Section 32A-5-16 and Section 44.14 [now Subsection N of 8.26.3.44 NMAC]I. Relinquishment and consent: (1) See Sections 32A-5-21 through 32A-5-24 NMSA 1978.(2) Indian child who is a resident or domiciliary of a reservation: A consent to adoption or a relinquishment of parental rights of an Indian child who is residing or domiciled on a reservation shall be taken before the tribal judge of that Indian tribe.(3) Indian child not a resident or domiciliary of a reservation: A consent to adoption or relinquishment of parental rights of an Indian child who is not residing or domiciled on a reservation shall be taken before a judge who has jurisdiction over adoption proceedings. See section 44.10 [now Subsection J of 8.26.3.44 NMAC] of these regulations for notice requirements.(4) Form of consent: In addition to the requirements of Section 32A-5-21 NMSA 1978 and Section 24 [now 8.26.3.24 NMAC] the relinquishment or consent of an Indian child shall include the following: (a) certification by the presiding judge that the terms and consequences of the consent were fully explained in detail and were understood by the parent or Indian custodian;(b) certification by the presiding judge that the parent or Indian custodian understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood.(5) Implied consent not permitted: A consent or relinquishment by an Indian custodian or parent of an Indian child shall not be implied as permitted under the act in Section 32A-5-18.(6) Revocation of relinquishment or consent prior to entry of final decree: A relinquishment or consent of an Indian child may be revoked by the parent or Indian custodian of an Indian child for any reason at any time prior to the entry of a final decree of termination or adoption. Upon such revocation, the Indian child shall be returned to the parent or Indian custodian.(7) Revocation of relinquishment or consent subsequent to entry of final decree: Within two years after entry of the final decree of adoption of an Indian child in any New Mexico court, the parent may withdraw the consent to the adoption and may petition the court to vacate a decree of adoption on the ground that the consent or relinquishment was obtained through fraud or duress. If the court finds that the consent or relinquishment was obtained through fraud or duress, the court shall vacate the decree of adoption and return the child to the parent or Indian custodian.J. Notice: (1) In addition to the notice requirements of Sections 32A-5-16 and 32A-5-27 NMSA 1978, notice of a termination of a parental rights proceeding, a request for placement or a petition for adoption shall be served on:(a) the parent or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom;(c) Indian child's tribe; and(d) if the Indian child's parent, custodian or tribe cannot be determined, then notice shall be served on the United States secretary of the interior.(2) Content of notice to Indian tribe: Notice to any Indian tribe shall include, to the extent available: (a) name of the Indian child, the child's birth date and birthplace;(b) name of the Indian tribe in which the child is enrolled or may be eligible for enrollment;(c) all known names of the Indian child's biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases;(d) birth dates; places of birth and death; tribal enrollment numbers and any other identifying information of the Indian child's biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians;(e) current and former addresses of the Indian child's biological mother and father, maternal and paternal grandparents and great grandparents, or Indian custodians;(f) a copy of the pleading by which the proceeding was initiated; and(g) the right to intervene in the action.(3) Form of service: A parent shall be personally served. All other persons shall be served by registered mail with return receipt requested.(4) No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe: Provided, that the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceedings.(5) Failure to comply with notice requirements: Failure to comply with notice requirements may result in an invalid adoption decree.K. Intervention: In any state court adoption proceeding involving an Indian child, the Indian custodian and the Indian child's tribe shall have the right to intervene at any time in the proceeding.01/01/98; Recompiled 11/30/01 Compiler's note: Subsection B, above, contains a reference to Section 7.10; however, given the context of the reference, it would appear that the correct citation is more likely Section 7.11, which is now Subsection K of 8.26.3.7 NMAC.