A. No petition for adoption shall be granted by the court unless the adoptee was placed in the home of the petitioner for the purpose of adoption:

(1) by the department;

(2) by an appropriate public authority of another state;

(3) by an agency; or

(4) pursuant to a court order, as provided in Section 32A-5-13 NMSA 1978.

B. The provisions of Subsection A of this section do not apply to a child in the department's custody who is being adopted pursuant to the provisions of the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978].

C. When an adoptee is not in the custody of the department or an agency, the adoption is an independent adoption and the provisions of this section and Section 32A-5-13 NMSA 1978 shall apply, except when the following circumstances exist:

(1) a stepparent of the adoptee seeks to adopt the adoptee and prior to the filing of the adoption petition, the adoptee has lived with the stepparent for at least one year since the marriage of the stepparent to the custodial parent and the family has received counseling, as provided for in Section 32A-5-22 NMSA 1978;

(2) a relative within the fifth degree of consanguinity to the adoptee or that relative's spouse seeks to adopt the adoptee, and, prior to the filing of the adoption petition, the adoptee has lived with the relative or the relative's spouse for at least one year; or

(3) a person designated to care for the adoptee in the will of the adoptee's deceased parent seeks to adopt the adoptee, and, prior to the filing of the adoption petition, the adoptee has lived with that person for at least one year.

D. All placements shall be made by the department, an agency or the parent of the adoptee pursuant to Section 32A-5-13 NMSA 1978.

E. In all adoptions, prior to any placement being made, the person making the placement shall provide full disclosure.

History: 1978 Comp., § 32A-5-12, enacted by Laws 1993, ch. 77, § 139; 1995, ch. 206, § 30.

The 1995 amendment, effective July 1, 1995, added "full disclosure" in the section heading; in Paragraph (4) of Subsection A, substituted "32A-5-13" for "32-5-13"; in Subsection C, substituted "this section and Section 32A-5-13" for "Sections 32-5-12 and 32-5-13"; in Paragraph (1) of Subsection C, substituted "32A-5-22" for "32-5-22"; at the end of Subsection D, added "pursuant to Section 32A-5-13 NMSA 1978"; and added Subsection E.

Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 40-7-34 NMSA 1978 have been included in the annotations to this section.

Legislative intent. — The obvious legislative intent is two-fold: (1) to restrict the unauthorized placement of children for adoption; and (2) to provide a means whereby the department or an authorized child placement agency could ensure the placement of adoptable children with individuals who have been found by competent authorities to be fit and proper as prospective adoptive parents. In re Doe, 1982-NMCA-094, 98 N.M. 340, 648 P.2d 798.

Section not jurisdictional limit. — There was nothing in former Section 40-7-34A NMSA 1978 suggesting a limitation on the children's court's jurisdiction. Section 40-7-34A NMSA 1978 was merely a statute that limited the court's power to grant a petition for adoption. If the party could not prove the facts necessary, then the statute was of no value to that party. Specifically, unless the foster parent could plead and prove that Human Services Department placed the children with her for adoption, she was not entitled to the right of adoption former Section 40-7-34A NMSA 1978 provided. In re Adoption of Francisco A., 1993-NMCA-144, 116 N.M. 708, 866 P.2d 1175.

Adoption valid without filing a petition. — Where petitioner filed a request for placement, but did not file a petition for adoption, the biological parent consented to the adoption, and the district court had an opportunity to examine all of the information and evidence that would have been supplied by a petition, the failure to file a petition was not jurisdictional and the adoption decree was valid. In re Adoption of Rebecca M., 2008-NMCA-038, 143 N.M. 554, 178 P.3d 839.

Duties of disclosure found in Subsection E. — Pre-adoption and adoption-related duties of disclosure are found in Subsection E of this section. Young v. Van Duyne, 2004-NMCA-074, 135 N.M. 695, 92 P.3d 1269.

Full disclosure means mandatory and continuous disclosure, including health, psychological, mental, medication, education, and social histories. Young v. Van Duyne, 2004-NMCA-074, 135 N.M. 695, 92 P.3d 1269.

Disclosure to adoptive parents. — Department had no duty to disclose the post-adoption information regarding the child to the adoptive parents. Young v. Van Duyne, 2004-NMCA-074, 135 N.M. 695, 92 P.3d 1269.

Effect of finality of adoption. — There is no statute or regulation that creates any duty or responsibility of the department and its employees, after an adoption is finalized, with respect to supervision, oversight, operation or maintenance of the home into which a child is placed for adoption, after an adoption becomes final. Young v. Van Duyne, 2004-NMCA-074, 135 N.M. 695, 92 P.3d 1269.

Electing to leave child with ex-spouse for extended period of time is not a "placement" for purposes of adoption. In re Doe, 1982-NMCA-094, 98 N.M. 340, 648 P.2d 798, cert. denied sub nom. Cook v. Brownfield, 98 N.M. 336, 648 P.2d 794.

Failure to meet Adoption Act's requirements requires reversal. — Where mother's parental rights were terminated and her child was placed for adoption with child's grandmother, the petition for adoption was invalid where the statutory prerequisites, that the children, youth and families department place the child with the child's grandmother for the purpose of adoption or that the child live with the grandmother for at least one year, were not met. In re Adoption Petition of Darla D. v. Grace R., 2016-NMCA-093.

Stepparent adoptions. — The one-year residency provision for stepparent adoptions is not jurisdictional in nature; it is a statutory prerequisite to stepparent adoption and, therefore, the father could not challenge the adoption decree on the basis that the court lacked jurisdiction because the one-year residency requirement was not met. In re Adoption of Webber, 1993-NMCA-099, 116 N.M. 47, 859 P.2d 1074.

Foster placement established residence. — The fact that children had lived in their aunt's home for a year, having been placed there by their mother under a foster placement, did not prevent a finding that they were "residing" with petitioning-aunt. In re Adoption of Awtrey, 1992-NMCA-118, 114 N.M. 594, 844 P.2d 844.