A. A motion for permanent guardianship may be filed by any party.
B. A motion for permanent guardianship shall set forth:
(1) the date, place of birth and marital status of the child, if known;
(2) the facts and circumstances supporting the grounds for permanent guardianship;
(3) the name and address of the prospective guardian and a statement that the person agrees to accept the duties and responsibilities of guardianship;
(4) the basis for the court's jurisdiction;
(5) the relationship of the child to the petitioner and the prospective guardian; and
(6) whether the child is subject to the federal Indian Child Welfare Act of 1978 and, if so:
(a) the tribal affiliations of the child's parents;
(b) the specific actions taken by the petitioner to notify the parents' tribe and the results of the contacts, including the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the tribes shall be attached as exhibits to the petition; and
(c) what specific efforts were made to comply with the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the appropriate Indian tribes.
C. If the motion is not filed by the prospective guardian, the motion shall be verified by the prospective guardian.
D. Notice of the filing of the motion, accompanied by a copy of the motion, shall be served by the moving party on any parent who has not previously been made a party to the proceeding, the parents of the child, foster parents with whom the child is residing, the foster parent, preadoptive parent or relative providing care for the child with whom the child has resided for six months, the child's custodian, the department, any person appointed to represent any party, including the child's guardian ad litem, and any other person the court orders provided with notice. Service shall be in accordance with the Children's Court Rules [10-101 NMRA] for the service of motions. In a case involving a child subject to the federal Indian Child Welfare Act of 1978, notice shall also be sent by certified mail to the Indian tribes of the child's parents and to any "Indian custodian" as that term is defined in 25 U.S.C. Section 1903(6). Further notice shall not be required to a parent who has been provided notice previously pursuant to Section 32A-4-17 NMSA 1978 and who failed to make an appearance.
E. The grounds for permanent guardianship shall be proved by clear and convincing evidence. The grounds for permanent guardianship shall be proved beyond a reasonable doubt and meet the requirements of 25 U.S.C. Section 1912(f) in any proceeding involving a child subject to the federal Indian Child Welfare Act of 1978.
F. A judgment of the court vesting permanent guardianship with an individual divests the biological or adoptive parent of legal custody or guardianship of the child, but is not a termination of the parent's rights. A child's inheritance rights from and through the child's biological or adoptive parents are not affected by this proceeding.
G. Upon a finding that grounds exist for a permanent guardianship, the court may incorporate into the final order provisions for visitation with the natural parents, siblings or other relatives of the child and any other provision necessary to rehabilitate the child or provide for the child's continuing safety and well-being.
H. The court shall retain jurisdiction to enforce its judgment of permanent guardianship.
I. Any party may make a motion for revocation of the order granting guardianship when there is a significant change of circumstances, including:
(1) the child's parent is able and willing to properly care for the child; or
(2) the child's guardian is unable to properly care for the child.
J. The court shall appoint a guardian ad litem for the child in all proceedings for the revocation of permanent guardianship if the child is under the age of fourteen. The court shall appoint an attorney for the child in all proceedings for the revocation of permanent guardianship if the child is fourteen years of age or older at the inception of the proceedings.
K. The court may revoke the order granting guardianship when a significant change of circumstances has been proven by clear and convincing evidence and it is in the child's best interests to revoke the order granting guardianship.
History: 1978 Comp., § 32A-4-32, enacted by Laws 1993, ch. 77, § 126; 1999, ch. 77, § 12; 2005, ch. 189, § 55; 2009, ch. 239, § 50.
ANNOTATIONSCross references. — For process in the Children's Court, see Rule 10-103 NMRA.
For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901.
The 2009 amendment, effective July 1, 2009, in Subsection J, after "permanent guardianship", added the remainder of the sentence and added the last sentence.
Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released.
The 2005 amendment, effective June 17, 2005, in Subsection B, deleted the former requirement that an application had to be signed, verified and filed with the court; in Subsection D, provided that service shall be in accordance with the Children's Court Rules, that in a case involving a child subject to the Indian Child Welfare Act, notice shall also be sent by certified mail to the Indian tribes of the child's parents and that further notice shall not be required to a parent who has been provided with notice previously pursuant to Section 32A-4-17 NMSA 1978 or who has failed to make an appearance; in Subsection I, deleted the former qualification that a party to the abuse or neglect proceeding, the child or a parent of the child could make a motion; and in Subsection K, changed "change of circumstance" to "significant change of circumstance".
The 1999 amendment, effective July 1, 1999, in Subsection D, substituted "the foster parent, preadoptive parent or relative providing care for the child" for "foster parents" in the first sentence, substituted "motions" for "process" in the second sentence, and made a minor stylistic change in the last sentence.