A. Except when consent or relinquishment is implied, a consent or relinquishment by a parent shall be in writing, signed by the parent consenting or relinquishing and shall state the following:
(1) the date, place and time of execution;
(2) the date and place of birth of the adoptee and any names by which the adoptee has been known;
(3) if a consent to adoption is being executed, the identity of the petitioner, if known, or when the adoption is an independent adoption and the identity of the petitioner is unknown, how the petitioner was selected by the consenting parent;
(4) if a relinquishment of parental rights is being executed, the name and address of the agency or the department;
(5) that the person executing the consent or relinquishment has been counseled, as provided in Section 32A-5-22 NMSA 1978, by a certified counselor of the person's choice and with this knowledge the person is voluntarily and unequivocally consenting to the adoption of the named adoptee;
(6) that the consenting party has been advised of the legal consequences of the relinquishment or consent either by independent legal counsel or a judge;
(7) if the adoption is closed, that all parties understand that the court will not enforce any contact, regardless of any informal agreements that have made between the parties;
(8) that the consent to or relinquishment for adoption cannot be withdrawn;
(9) that the person executing the consent or relinquishment has received or been offered a copy of the consent or relinquishment;
(10) that a counseling narrative has been prepared pursuant to department regulations and is attached to the consent or relinquishment;
(11) that the person who performed the counseling meets the requirements set forth in the Adoption Act; and
(12) that the person executing the consent or relinquishment waives further notice of the adoption proceedings.
B. The consent of an adoptee, if fourteen years of age or older, shall be in writing, signed by the adoptee, consenting to the adoption and shall state the following:
(1) the date, place and time of execution;
(2) the date and place of birth of the adoptee and any names by which the adoptee has been known;
(3) the name of the petitioner;
(4) that the adoptee has been counseled regarding the consent pursuant to department regulation;
(5) that the adoptee has been advised of the legal consequences of the consent;
(6) that the adoptee is voluntarily and unequivocally consenting to the adoption;
(7) that the consent or relinquishment cannot be withdrawn;
(8) that a counseling narrative has been prepared pursuant to department regulation and is attached to the consent; and
(9) that the person who performed the counseling meets the requirements set forth in the Adoption Act.
C. In cases when the consent or relinquishment is in English and English is not the first language of the consenting or relinquishing person, the person taking the consent or relinquishment shall certify in writing that the document has been read and explained to the person whose consent or relinquishment is being taken in that person's first language, by whom the document was so read and explained and that the meaning and implications of the document are fully understood by the person giving the consent or relinquishment.
D. Unconditional consents or relinquishments are preferred and therefore, conditional consents or relinquishments shall be for good cause and approved by the court. However, if the condition is for a specific petitioner or the condition requires the other parent to consent before the decree of adoption is entered, the condition shall be deemed for good cause. In any event, all conditions permitted under this subsection shall be met within one hundred eighty days of the execution of the conditional consent or relinquishment or the conclusion of any litigation concerning the petition for adoption. The court may grant an extension of this time for good cause.
E. Agency or department consents required pursuant to the provisions of Section 32A-5-17 NMSA 1978 shall state the following:
(1) the date, place and time of execution;
(2) the date and place of birth of the adoptee and any names by which the adoptee has been known;
(3) the name of the petitioner; and
(4) the consent of the agency or department.
F. A consent or relinquishment taken by an individual appointed to take consents or relinquishments by an agency shall be notarized, except that a consent or relinquishment signed in the presence of a judge need not be notarized. A hearing before the court for the purpose of taking a consent or relinquishment shall be heard by the court within seven days of request for setting.
G. No consent to adoption or relinquishment of parental rights shall be valid if executed within forty-eight hours after the adoptee's birth. Consent to adoption or relinquishment of parental rights involving an Indian child shall comply with the more stringent requirements of the federal Indian Child Welfare Act of 1978.
H. The requirements of a consent to adoption or relinquishment of parental rights involving an Indian child and the rights of a parent of an Indian child to withdraw the consent or relinquishment shall be governed by the relevant provisions of the federal Indian Child Welfare Act of 1978.
I. A consent to or relinquishment for adoption shall not be withdrawn prior to the entry of a decree of adoption unless the court finds, after notice and opportunity to be heard is afforded to the petitioner, to the person seeking the withdrawal and to the agency placing a child for adoption, that the consent or relinquishment was obtained by fraud. In no event shall a consent or relinquishment be withdrawn after the entry of a decree of adoption.
History: 1978 Comp., § 32A-5-21, enacted by Laws 1993, ch. 77, § 148; 2005, ch. 189, § 64.
ANNOTATIONSCross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901.
The 2005 amendment, effective June 17, 2005, added Subsection A(7), which provided that a consent or relinquishment shall, if the adoption is closed, that all parties understand that the court will not enforce any contract, regardless of any informal agreement between the parties; and in Subsection B, changed "over the age of ten years" to "fourteen years of age or older".
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.
Withdrawal of parental consent. — Fraud is the only expressly-stated ground in the Adoption Act upon which to base the withdrawal of parental consent prior to the entry of a final decree of adoption. In re Kira M., 1994-NMSC-109, 118 N.M. 563, 883 P.2d 149.
The children's court has the power to grant the request of a natural parent to withdraw consent under exceptional circumstances failing outside the specific grounds enunciated in subsection F; any such order must be consistent with the best interest of the child, which must be given paramount consideration. In re Kira M., 1994-NMSC-109, 118 N.M. 563, 883 P.2d 149.
Compliance with statutory procedures. — Where the director of the private adoption agency talked to the parents to be sure they understood the ramifications of what they were doing, that the relinquishment and consent were final and irrevocable; and the parents each received counseling and independent legal advice, the parent's relinquishments were voluntary and complied with the requirements of this section. Vigil v. Fogerson, 2006-NMCA-010, 138 N.M. 822, 126 P.3d 1186.