A. The physical, mental and emotional welfare and needs of the child shall be the primary consideration for the termination of parental rights. The court may terminate the rights of the child's parents as provided by the Adoption Act.

B. The court shall terminate parental rights with respect to a child when:

(1) the child has been abandoned by the parents;

(2) the child has been a neglected or abused child and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future; 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 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 Subparagraph (a) through (e) of Paragraph (3) of Subsection B of this section exist shall create a rebuttable presumption of abandonment.

D. The termination of parental rights involving an Indian child shall comply with the requirements of the federal Indian Child Welfare Act of 1978.

History: 1978 Comp., § 32A-5-15, enacted by Laws 1993, ch. 77, § 142; 1995, ch. 206, § 33.

Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901.

The 1995 amendment, effective July 1, 1995, substituted "the Adoption Act" for "this article" in Subsection A, in Subsection B, added Subparagraph (3)(f) and made minor stylistic changes in Subparagraphs (3)(d) and (3)(e), and inserted "Subparagraph (a) through (e) of" in Subsection C.

A biological father's conduct prior to a child's birth cannot be used as a basis for finding that the father caused the disintegration of the parent-child relationship. Helen G. v. Mark J. H., 2006-NMCA-136, 140 N.M. 618, 145 P.3d 98, rev'd, 2008-NMSC-002, 143 N.M. 246, 175 P.3d 914.

Criminal's consent to adoption. — Man convicted of criminal sexual penetration of a child had no constitutional right under the due process clauses of the United States or New Mexico constitutions to withhold consent to adoption of the child conceived and born as a result of that act. Christian Child Placement Serv. of the N.M. Christian Children's Home v. Vestal, 1998-NMCA-098, 125 N.M. 426, 962 P.2d 1261.

"Neglect" by noncustodial parent. — Termination of parental rights by reason of "neglect" requires a showing by clear and convincing evidence of culpability on the part of the parent through intentional or negligent disregard of the child's well-being and proper needs. If the parents are separated and living in different communities, in order to hold a noncustodial parent responsible for the neglect of the parent having actual physical custody of the child, it must be established that the noncustodial parent knew or should have known of the condition of the child, that the child was without proper care by the custodial parent because of the faults or habits of that parent, and when able to do so, to provide that care. In re Adoption of J.J.B., 1993-NMCA-145, 117 N.M. 31, 868 P.2d 1256, rev'd in part on other grounds, 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995).

Insufficient evidence to support termination of parental rights. — In a termination of parental rights proceeding, where petitioners sought termination of the mother's parental rights based on presumptive abandonment, the district court's ruling that the mother abandoned the child was not supported by the evidence when petitioners failed to assert that the child was abandoned or provide any evidence that the child was abandoned by his mother, and although there was some evidence providing a basis for finding abuse and neglect, the evidence did not establish clearly and convincingly that the mother's condition warranted a termination of her parental rights. In re Adoption Petition of Darla D. v. Grace R., 2016-NMCA-093.

Law reviews. — For note, "Family Law - New Mexico Expands Due Process Rights of Parents in Termination of Parental Rights: In Re Ruth Anne E.," see 31 N.M.L. Rev. 439 (2001).

For comment, "Custody Standards in New Mexico: Between Third Parties and Biological Parent, What is the Trend?", see 27 N.M. L. Rev. 547 (1997).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Legal malpractice in defense of parents at proceedings to terminate parental rights over dependent or neglected children, 18 A.L.R.5th 902.

Parent's use of drugs as factor in award of custody of children, visitation rights, or termination of parental rights, 20 A.L.R.5th 534.

Smoking as factor in child custody and visitation cases, 36 A.L.R.5th 377.

Sufficiency of evidence to establish parent's knowledge or llowance of child's sexual abuse by another under statute permitting termination of parental rights for 'allowing' or 'knowingly allowing' such abuse to occur, 53 A.L.R.5th 499.