A. A consent to adoption or relinquishment of parental rights required pursuant to the provisions of the Adoption Act shall be implied by the court if the parent, without justifiable cause, has:
(1) left the adoptee without provision for the child's identification for a period of fourteen days; or
(2) left the adoptee with others, including the other parent or an agency, without provisions for support and without communication for a period of:
(a) three months if the adoptee was under the age of six years at the commencement of the three-month period; or
(b) six months if the adoptee was over the age of six years at the commencement of the six-month period.
B. A court shall not imply consent or relinquishment under this section unless the parent whose relinquishment or consent is to be implied has been served with notice setting forth the time and place of the hearing at which the consent or relinquishment may be implied. The implication of a consent or relinquishment under this section shall have the same effect as though the consent or relinquishment had been given voluntarily.
C. The court shall render its decision on the implied consent prior to proceeding with the adjudicatory hearing.
History: 1978 Comp., § 32A-5-18, enacted by Laws 1993, ch. 77, § 145.
ANNOTATIONSCross references. — For abandonment of a child, see 30-6-1 NMSA 1978.
Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 40-7-36 NMSA 1978 have been included in the annotations to this section.
Effect of implied consent. — Where petitioners filed a petition to adopt respondent's child and served respondent with a motion to imply respondent's consent to the adoption; the district court held a hearing on the consent issue and entered an order implying respondent's consent; respondent requested findings and conclusion, but did not file either; and respondent indicated that respondent would appeal the order, but no appeal was filed, the order implying respondent's consent was a final, appealable order that terminated respondent's right to participate further in the adoption proceedings and that terminated the respondent's parental rights. Homer F. v. Jeremiah E., 2009-NMCA-082, 146 N.M. 845, 215 P.3d 783.
Voluntary conduct toward child may forfeit right to consent. — The person whose consent is otherwise required may forfeit his right to withhold or grant consent upon the basis of his voluntary conduct toward the child. Since the entire right may be so lost, there is no reason why a portion of the right, the specification of the persons in whose favor consent to adoption is given, may not be the subject of voluntary waiver. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175.
Abandonment consists of conduct on part of parent which implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship. In re Adoption of Doe, 1976-NMCA-084, 89 N.M. 606, 555 P.2d 906, cert. denied, 90 N.M. 8, 558 P.2d 620.
Two elements of test of abandonment, parent's conduct as evidence of disregard for parental obligation and that disregard leading to destruction of parent-child relationship, are interdependent; both must be established if there is to be legal abandonment. In re Adoption of Doe, 1976-NMCA-084, 89 N.M. 606, 555 P.2d 906, cert. denied, 90 N.M. 8, 558 P.2d 620.
Abandonment is to be determined objectively, taking into account not only the verbal expressions of the natural parents but their conduct as parents as well. In re Adoption of Doe, 1976-NMCA-084, 89 N.M. 606, 555 P.2d 906, cert. denied, 90 N.M. 8, 558 P.2d 620.
Justifiable cause for failure to communicate and support. — Before the court issues an order granting a decree of adoption and dispensing with a parent's consent to adoption based upon a conclusion that the parent has impliedly consented to an adoption because of a failure of the parent to provide for the support and to communicate or maintain contact with the child during a certain time period, the court must also determine whether the failure of the parent to support and communicate with the child during the time period was "without justifiable cause." Such cause was established in this case since the father lost his job shortly after he separated from the mother and was unemployed at the time of the filing of the petition for adoption, the father continued to object to his son's adoption, the father attempted through counsel to obtain visitation, and the father made a written demand for the return of his son. 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).
Notice to parents required. — It is impossible to declare a child to be dependent and neglected and then place the child for adoption without notice to the parents. 1959 Op. Att'y Gen. No. 59-59.
Law reviews. — For note, "Family Law - A Limitation on Grandparental Rights in New Mexico: Christian Placement Service v. Gordon," see 17 N.M.L. Rev. 207 (1987).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Natural parent's indigence as precluding finding that failure to support child waived requirement of consent to adoption, 71 A.L.R.4th 305.
Comment Note: Natural parent's indigence as precluding finding that failure to support child waived requirement of consent to adoption - general principles, 82 A.L.R.5th 443.
Natural parent's indigence resulting from unemployment or underemployment as precluding finding that failure to support child waived requirement of consent to adoption, 83 A.L.R.5th 375.