A. The court shall conduct hearings on the petition for adoption so as to determine the rights of the parties in a manner that protects confidentiality. The petitioner and the adoptee shall attend the hearing unless the court for good cause waives a party's appearance. Good cause may include burdensome travel requirements.

B. The petitioner shall file all documents required pursuant to the Adoption Act and serve the department with copies of the documents simultaneously with the request for hearing on the petition for adoption.

C. If any person who claims to be the biological father of the adoptee has appeared before the court and filed a written petition or response seeking custody and assuming financial responsibility of the adoptee, the court shall hear evidence as to the merits of the petition. If the court determines by a preponderance of the evidence that the person is not the biological father of the adoptee or that the child was conceived through an act of rape or incest, the petition shall be dismissed and the person shall no longer be a party to the adoption. If the court determines that the person is the biological father of the adoptee, the court shall further determine whether the person qualifies as a presumed or acknowledged father whose consent is necessary for adoption, pursuant to Section 32A-5-17 NMSA 1978. If the court determines that the person is the biological father, but does not qualify as a presumed or acknowledged father, the court shall adjudicate the person's rights pursuant to the provisions of the Adoption Act.

D. If the mother or father of the adoptee has appeared before the court and filed a written petition that alleges the invalidity of the mother's or father's own consent or relinquishment for adoption previously filed in the adoption proceeding, the court shall hear evidence as to the merits of the petition. If the court determines that the allegations have not been proved by a preponderance of the evidence, the petition shall be dismissed. If the court determines that the allegations of the petition are true, the consent or relinquishment for adoption shall be held invalid, and the court shall determine, in the best interests of the adoptee, the person who shall have custody of the child.

E. The petitioner shall present and prove each allegation set forth in the petition for adoption by clear and convincing evidence.

F. The court shall grant a decree of adoption if it finds that the petitioner has proved by clear and convincing evidence that:

(1) the court has jurisdiction to enter a decree of adoption affecting the adoptee;

(2) the adoptee has been placed with the petitioner for a period of ninety days if the adoptee is under the age of one year at the time of placement or for a period of one hundred eighty days if the adoptee is one year of age or older at the time of placement, unless, for good cause shown, the requirement is waived by the court;

(3) all necessary consents, relinquishments, terminations or waivers have been obtained;

(4) the post-placement report required by Section 32A-5-31 NMSA 1978 has been filed with the court;

(5) service of the petition for adoption has been made or dispensed with as to all persons entitled to notice pursuant to provisions of Section 32A-5-27 NMSA 1978;

(6) at least ninety days have passed since the filing of the petition for adoption, except the court may shorten or waive this period of time in cases in which the child is being adopted by a stepparent, a relative or a person named in the child's deceased parent's will pursuant to provisions of Section 32A-5-12 NMSA 1978;

(7) the petitioner is a suitable adoptive parent and the best interests of the adoptee are served by the adoption;

(8) if visitation between the biological family and the adoptee is contemplated, that the visitation is in the child's best interests;

(9) if the adoptee is foreign-born, the child is legally free for adoption and a certificate issued by the United States secretary of state that certifies the adoption as a convention adoption has been filed with the court;

(10) the results of the criminal records check required pursuant to provisions of the Adoption Act [Chapter 32A, Article 5 NMSA 1978] have been received and considered;

(11) if the adoptee is an Indian child, the requirements set forth in the federal Indian Child Welfare Act of 1978 have been met;

(12) when the child is an Indian child, the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the appropriate Indian tribes have been followed or, if not followed, good cause for noncompliance has been clearly stated and supported, as required by the federal Indian Child Welfare Act of 1978 and provision has been made to ensure that the Indian child's cultural ties to the Indian child's tribe are protected and fostered; and

(13) if the adoption involves the interstate placement of the adoptee, the requirements of the Interstate Compact on the Placement of Children [32A-11-1 NMSA 1978] have been met.

G. In addition to the findings required by Subsection F of this section, the court in any decree of adoption shall make findings with respect to each allegation of the petition.

H. If the court determines that any of the requirements for a decree of adoption pursuant to provisions of Subsections E and F of this section have not been met or that the adoption is not in the best interests of the adoptee, the court shall deny the petition and determine, in the best interests of the adoptee, the person who shall have custody of the child.

I. The decree of adoption shall include the new name of the adoptee and shall not include any other name by which the adoptee has been known or the names of the former parents. The decree of adoption shall order that from the date of the decree, the adoptee shall be the child of the petitioner and accorded the status set forth in Section 32A-5-37 NMSA 1978.

J. A decree of adoption shall be entered within six months of the filing of the petition if the adoptee is under the age of one year at the time of placement or twelve months if the adoptee is one year of age or older at the time of placement, except that the time may be extended by the court upon request of any of the parties or upon the court's own motion for good cause shown.

K. A decree of adoption may not be attacked upon the expiration of one year from the entry of the decree; provided, however, that in any adoption involving an Indian child, the Indian child's parent or Indian custodian may petition the court pursuant to the provisions of the federal Indian Child Welfare Act of 1978 to invalidate the adoption.

L. In any adoption involving an Indian child, the clerk of the court shall provide the secretary of the interior with a copy of any decree of adoption or adoptive placement order and other information as required by the federal Indian Child Welfare Act of 1978.

History: 1978 Comp., § 32A-5-36, enacted by Laws 1993, ch. 77, § 163; 1995, ch. 206, § 42; 2003, ch. 294, § 5; 2003, ch. 321, § 5.

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

The 2003 amendment, effective July 1, 2003, substituted "documents" for "same" near the middle of Subsection B; inserted "and a certificate issued by the United States secretary of state that certifies the adoption as a convention adoption has been filed with the court" following "free for adoption" at the end of Paragraph F(9); and substituted "the Adoption Act" for "Section 32A-5-14 NMSA 1978" following "pursuant to provisions of" near the middle of Paragraph F(10). Laws 2003, ch. 294, § 5 and Laws 2003, ch. 321, § 5 enacted identical amendments to this section. The section was set out as amended by Laws 2003, ch. 321, § 5. See 12-1-8 NMSA 1978.

The 1995 amendment, effective July 1, 1995, substituted "32A-5-17" for "32-5-17" near the end of Subsection C; in Subsection F, substituted "32A-5-31" for "32-5-31" in Paragraph (4), substituted "32A-5-27" for "32-5-27" in Paragraph (5), substituted "32A-5-12" for "32-5-12" in Paragraph (6), and substituted "32A-5-14" for "32-5-14" in Paragraph (10); corrected the subsection reference in Subsection G; in Subsection I, substituted "32A-5-37" for "32-5-37"; and made minor stylistic changes throughout the section.

Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 40-7-49 NMSA 1978 have been included in the annotations to this section.

Jurisdiction to determine custody, adoption or other disposition. — Since court had jurisdiction of the petitions relating to certain children upon the basis they were abandoned children, it was within the jurisdiction of the court: (a) to return these children to the custody of their natural parents; or, (b) to grant the petitions for the adoption of the children; or, (c) to refuse either of the foregoing, and make other temporary or permanent disposition and provision for these children, all to be determined upon one single consideration - the welfare of the children. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175.

Personal jurisdiction required. — An integral facet of a valid adoption is the requirement that personal jurisdiction must first be acquired by the court over the parties seeking to adopt the child, over the child, and over the parents of the child, and any guardian or agency having custody or control of the child. In re Adoption of Bradfield, 1982-NMCA-047, 97 N.M. 611, 642 P.2d 214.

Consent considered before merits of adoption. — The court has no right to consider the merits or demerits of an adoption petition insofar as it concerns the welfare of a child, unless it has in the first instance determined that the consent of a natural parent may be dispensed with. Nevelos v. Railston, 1959-NMSC-013, 65 N.M. 250, 335 P.2d 573.

Parent did not qualify as an acknowledged father. — Where the biological father of the child knew that the mother was pregnant; the father registered with the putative father registry after receiving notice of the pending adoption of the child and two months after the child's birth and placement with the adoptive parents; and the father filed a petition in the adoption proceeding to establish paternity, the father was not an "acknowledged father" and had no statutory right to withhold consent to the child's adoption. Helen G. v. Mark J. H., 2008-NMSC-002, 143 N.M. 246, 175 P.3d 914.

Parents' knowledge of identity of petitioners not condition of jurisdiction. — As the court may or may not decree adoption in favor of persons recommended by the natural parents, it seems most unlikely the legislature intended to impose as a condition to the exercise of the court's jurisdiction knowledge of the identity of petitioners in adoption on the part of the natural parents because even when that circumstance exists, and possibly the further circumstance that the natural parents have investigated the qualifications of the petitioners and given them their unqualified approval, the court may still refuse to decree adoption, the selection of a foster parent being a judicial act and the responsibility being that of the court. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175.

Child's welfare paramount. — The paramount issue in an adoption proceeding is the welfare of the child. In re Adoption of Bradfield, 1982-NMCA-047, 97 N.M. 611, 642 P.2d 214.

Welfare of child not measured altogether by economic factors. — In an adoption proceeding, the welfare and best interest of a child are not measured altogether by material and economic factors; parental love and affection must find some place in the scheme. Gutierrez v. N.M. Dep't of Pub. Welfare, 1964-NMSC-129, 74 N.M. 273, 393 P.2d 12.

Counseling not grounds for reopening adoption. — The fact that the mother had not received pre-consent counseling was not a proper ground upon which to reopen an adoption. In re Adoption of Drummond, 1997-NMCA-094, 123 N.M. 727, 945 P.2d 457.

Adoption denied where only for securing greater social security check. — Although there is no contention that the petitioner's home was not a proper one, nor is there any intimation that either the petitioner or the natural mother was not a proper person to have custody of the children, the adoption was denied as it was an adoption in name only, lacking all of the elements of the complete severance of the children's ties and relationship with their mother contemplated by the law and within the intent of New Mexico adoption statutes as it was only for the purpose of securing a greater social security check. Gutierrez v. N.M. Dep't of Pub. Welfare, 1964-NMSC-129, 74 N.M. 273, 393 P.2d 12.

Entry of order without effect where no adoption existed. — While an order of adoption may be entered nunc pro tunc to cure irregularities that do not affect the jurisdiction of the court, it cannot serve to bring into existence an adoption when no adoption could in fact be deemed to have existed before. In re Adoption of Bradfield, 1982-NMCA-047, 97 N.M. 611, 642 P.2d 214.

Authority of court after mother's consent declared invalid. — Where the mother's consent to adoption has been declared invalid in keeping with the best interests of the child, the trial court retains the power to determine custody in the absence of a legally valid consent, and it is within the authority of the trial court to continue the child in the custody of the couple seeking to adopt her. Although they lacked standing to petition the court for adoption, they were not left without remedy, since they did have standing to seek relief. In re Samantha D., 1987-NMCA-082, 106 N.M. 184, 740 P.2d 1168, cert. denied, 106 N.M. 174, 740 P.2d 1158.

Death of child prior to final hearing. — The granting of an adoption where the child sought to be adopted has died prior to the final hearing has no effect, as the death deprives the trial court of jurisdiction. In re Adoption of Bradfield, 1982-NMCA-047, 97 N.M. 611, 642 P.2d 214.

Court may grant or refuse revocation of consent prior to decree. — Prior to the entry of an adoption decree, the court may grant or refuse revocation of consent, giving due consideration to the circumstances in the particular case, as, for example, the matters giving rise to execution of consent in the first place, a showing or failure to show change of those matters; the situation of the proposed adoptive parents; the length of time which has elapsed since consent has been given; the extent to which the adoptive petitions have relied and acted upon the consent; and all those matters pertaining to the past, present and future welfare of the child. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175.

Consent may not be arbitrarily revoked. — All that New Mexico statutes require is that consent be filed in the proceedings. Consent may not be arbitrarily revoked prior to adoption, at least where the petitioners for adoption have acted upon the consent and taken the child into their home. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175.

Visitation rights of nonparent. — Although granting visitation in an adoption case to a nonparent does affect a parent's custody rights, this is not sufficient reason to apply a blanket rule against such decrees. If at some time the visitation is no longer in the child's best interests, the court may reconsider it. However, because granting visitation rights does infringe on a parent's custody, it is appropriate to limit this decision to situations when the party seeking visitation has acted in a custodial or parental capacity. In re Adoption of Francisco A., 1993-NMCA-144, 116 N.M. 708, 866 P.2d 1175.

Consent presumed in child's best interest, absent fraud. — Where natural mother pled on motion to revoke consent that the consent was involuntary in that it was signed too soon after birth, while in the hospital, and while in a state of emotional upset, such petition failed to state a claim upon which relief could be granted, since legislature, by enactment of this section, created a presumption that once there has been a consent by the natural parent, absent fraud, it is in the best interests of the child to proceed with the adoption. In re Adoption of Doe, 1975-NMCA-009, 87 N.M. 253, 531 P.2d 1226, cert. denied, 87 N.M. 239, 531 P.2d 1212.

Challenges to decree. — By statutorily placing a definite time limitation for attacking adoption decrees, the legislature intended to ensure that adopted children were given status equal to that of children begotten by marriage; therefore, father's motion for relief from judgment filed five years after the final adoption decree was entered was time-barred. In re Adoption of Webber, 1993-NMCA-099, 116 N.M. 47, 859 P.2d 1074.

"Exceptional circumstance" exception to one-year limitation. — Where the best interests of the child demand it, the exceptional circumstance provision of 1-060B (6) NMRA should be used to override the one-year statute of limitations on reopening an adoption decree. In re Adoption of Drummond, 1997-NMCA-094, 123 N.M. 727, 945 P.2d 457.