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Adopting A Child

What is Adoption?
Adoption is the legal process that transfers the legal rights and duties of a child toward his or her biological or natural parents to substitute adoptive parents. The rights and obligations between the child and his or her biological parents are terminated and the adoptive parents become the sole possessor of the rights, privileges and duties of parenthood for all legal purposes effective upon completion of the adoption. In New Mexico, an adopting parent may be a single individual court approved as a suitable adoptive parent, or a married Individual. Any person may be adopted, including an adult.

What Are the Requirements for Legal Adoption in New Mexico?
The child or the adopting parents must be a resident of New Mexico or the child must be in the custody of an agency licensed in New Mexico. The adopting parents must desire to establish a parent and child relationship with the child and must be fit and proper persons to care and provide for the child’s welfare. The adoption must also serve in furtherance of the best interest of the child. The biological parents of the child must (1) consent to the adoption after counseling with a judge’s approval or with an agency head’s approval after independent legal counsel, or (2) relinquish parental rights to the Children, Youth and Families Department (C.Y.F.D.) either voluntarily or through an abuse or neglect proceeding or relinquish to a state-licensed agency, or (3) impliedly consent by court order after service of notice upon the parent who has left the child under certain circumstances prescribed by law without justifiable cause. In most New Mexico adoptions, a criminal records check is required of the adopting parents. The monies expended in connection with the adoption must also be reported to the court in most instances. Also required in many New Mexico adoptions are pre-placement and post-placement reports that include information from all parties’ backgrounds, a home study and other analysis of whether the adopting parents are suitable. Although the above list is not exhaustive, it does at least touch upon most requirements.

How Is A Child Placed for Adoption?
Court or agency permission must be obtained before a child may be placed in a home for purposes of adoption except in the limited circumstance of a step-parent adoption which is discussed below. The biological parents may place their child for adoption by going to the C.Y.F.D., to a state-licensed adoption agency or by obtaining, through an attorney, court permission to place the child with a specific family. The biological parents need not know the identity of the adopting parents. For example, the biological parents may request the court to allow them to place the child with a family whose specific identity is not known, but who has been recommended to them by a clergyman, physician, family friend or state-licensed agency. To obtain court approval prior to placement, a request with the court must be on file with the court at least 30 days. Placement, however, does not terminate biological parents’ rights in and of itself and the biological parents can change their minds about the child’s placement for adoption at any time until they sign, with proper approval, a consent to adoption. Currently, a consent for adoption cannot be validly executed until 48 hours after the child’s birth. Once a valid consent is given, however, it is binding and final.

When Should Placement Planning Occur?
Many adoptions involve newborn children. Placement planning should begin during the pregnancy of the mother so that all of the legal requirements can be completed by the time of the child’s birth. It is considered best for an infant to be placed in the adoptive home as soon as possible after birth. This is not possible if legal requirements have not been met. As described above, any request before a placement order must be on file at least 30 days before a placement order is rendered. It is recommended that placement be pursued by going to any agency or an attorney no later than 60 days before the child’s anticipated birth, or sooner if possible.

How to Obtain A Child for Adoption
The surest way to obtain a child for adoption is to work through a state-licensed agency or through the C.Y.F.D., Social Services Division, Placement Services Section. To obtain information concerning the identity of a state-licensed agency or how to proceed in working with the department, contact C.Y.F.D. or write to the state of New Mexico, Children, Youth and Families Department, Social Services Division, Placement Services Section, PO Drawer 5160, Santa Fe, NM 87502-5160, and request the information.

Occasionally, a prospective adoptive family will become aware of a child available for adoption through the referral of another person. Should that occur, see a lawyer immediately for advice as to how to proceed with a private placement. Do not, under any circumstances, take a child you desire to adopt into your home without court permission unless you are the step-parent of the child, a blood relative of the child within the fifth degree or the blood relative’s spouse, or a person designated in the child’s deceased parents’ will to care for the child.

Open Adoptions
The New Mexico Adoption Act has been modified to reflect a movement by our society toward open adoptions. The need for accurate medical history and for possible future anatomical and blood transfusion gifts has, in part, spurred this movement. An open adoption permits contact between the biological and adopting parents. The agreed upon future contact may include exchange of identifying or nonidentifying information, visitation between biological parents and/or the biological parents’ relatives and the child and/or adopting parents. The potential for disputes and other problems related to an open adoption agreement is relatively greater than in a closed adoption situation, and great care should be taken to ensure that a legal agreement is made and that all parties understand its terms.

Stepparent Adoptions
When both parents are living and the custodial parent remarries, the question of adoption of the stepchild(ren) by the new spouse may arise. The non-custodial parent’s consent, express or implied, or relinquishment or termination is required in such a case. Counseling is also now required of each of the custodial parents and the prospective adopting parent as well as the child if 10 years or older. If the child has not resided with the prospective adopting parent for at least one (1) year, certain placement restrictions as discussed above will apply. Retaining an attorney is a necessary and important step in commencing an adoption of a stepchild.

What Is the Cost of Adoption?
State-licensed agencies have set fees that you may obtain upon request. Adoptions handled through the C.Y.F.D. are typically provided with no agency, medial or counseling costs. Whether you are working with an agency or the department, however, you will need to retain an attorney to prepare and present the necessary legal documents to the court to complete the adoption. You will need to consult an attorney to discuss the legal fee for these services. In private placements, the usual arrangement is that the adopting parents will pay the medical, legal and counseling expenses of the biological parents relating to the birth of the child. They will also pay their own legal expenses in this instance. Therefore, private placement adoptions are typically substantially greater in cost. In no circumstance, however, should an adoptive parent make any payment to a woman, directly or indirectly, for conceiving and carrying a child, nor can demand be made for repayment of previously made medical, legal or counseling expenses to threaten or coerce a parent to complete a relinquishment of parental rights or consent to adoption. Either of these latter two acts constitutes a misdemeanor and can result in imprisonment up to one year in a county jail or a fine of up to $1,000, or both.

Interstate Adoptions
Interstate adoptions may occasionally occur through an agency or C.Y.F.D. They can also occur in private placements. In addition to complying with the New Mexico Adoption Code, all such adoptions must also meet the requirements of the Interstate Compact on Placement of Children, to which New Mexico and most states belong. The Interstate Compact on Placement of Children Act requires state cooperation and frequently requires additional time to comply, so it is important to begin the necessary proceedings as early as possible.

Adopting Indian Children
Federal law may apply to the adoption of Indian children. The Indian Child Welfare Act of 1978 (25 U.S.C. Section 1901, et seq.) governs the adoption of Indian children who are members of or eligible for membership in an Indian tribe. If you are seeking to adopt a child of Indian descent, it is very important that a determination of the Indian Child Welfare Act’s application be made, as the Act requires that certain procedures be followed. Because the Act is federal law, its provisions may supersede or preempt state law governing adoptions. When seeking to adopt a child of Indian descent, it is important to consult a lawyer who is familiar with the provisions of the Indian Child Welfare Act.

Following the Law
Following the law is crucial to a successful adoption that will not become susceptible to a future attack. The required legal steps and precautions are intended to protect the interests of all persons involved with the adoption and compliance and will help avoid devastating future consequences. For your protection, you should retain an attorney familiar with adoption law as soon as it appears that you may desire to receive or place a child.

Special Note - This information has been issued to inform and not to advise. It is based on New Mexico law in effect at the time of writing. The statements are general and individual facts in any given situation may alter their application or involve other laws not referred to here. You should always seek advice from an attorney if any questions arise. This document is intended as a public service and is not an endorsement of any attorney or law firm.