Adoption is all around us, even though many of us rarely see it. Loving families are opening their arms and their hearts to children across the nation, while other families are waiting anxiously to add to their own family. According to the Adoption Network about 135,000 children are adopted in the United States each year. This is less than a third of the 428,000 children who are in the nation’s foster care system. Across the United States, there are about 7 million adoptees (adults and children), and while only 2 percent of Americans have adopted, a full third have seriously considered adopting a child. In 2007, nearly 20,000 adopted children were adopted internationally. This number has steadily declined since then, due to increased restrictions regarding international adoptions. While open adoptions (in which the biological parent(s) remain involved or in touch with the adoptive family to some degree) were once quite rare, today from 60-70 percent of adoptions are open adoptions.
Who May Adopt
New Mexico statutes state that any child may be adopted. This is a broad category to include not only foster children, but private adoptions or stepparent adoptions.
The rules for when an individual may petition to adopt a child are more specific. If you are a resident of the state of New Mexico who is considering adoption, you must meet one of the following additional requirements:
- You must be an individual approved by a New Mexico court as a suitable adoptive parent, and
- If you are married but your spouse is NOT joining in the adoption, you are permitted to continue with the adoption if either:
- Your spouse is a parent of the adopted person (i.e. you are completing a stepparent adoption);
- You and your spouse are legally separated; or
- The court has excused your spouse’s failure to join in the adoption for reasonable circumstances.
If you are not a resident of New Mexico, you may still be eligible to file for adoption if the adoptee is a resident of New Mexico or was born in New Mexico and is less than 6 months old, and the adoptee was placed through the State or a licensed adoption agency.
Paying for Adoption
Prospective adoptive parents in the state of New Mexico are allowed to make certain payments related to the adoption to third-party vendors. This typically applies to private adoptions. These payments are to be “reasonable,” and are not intended as a pay-off to the biological parents, but to ease the financial burden on the biological parents for costs associated with the birth of the child and facilitating the adoption. Permitted payments include:
- Cost of services of an adoption agency;
- The living expenses for the mother and her children for a reasonable time (no longer than 6 weeks post-birth);
- Expenses incurred by a mother or child in connection with the birth or illness of the child, including hospital, medical, nursing, pharmaceutical or traveling;
- Any counseling services which are believed to be reasonable;
- Any legal services related to the parent who is consenting to the adoption;
- Cost of preparing the pre-placement and post-placement study;
- Any expenses incurred regarding full disclosure, and
- Any other expenses or services which are deemed by the court to be reasonably necessary.
The adoptive parents may not make any other types of payments to the birth parent, and could be penalized for doing so. Private adoptions, unfortunately, can get very expensive very quickly for the adopting parents. While adopting a foster child can be less expensive, the wait time for completing the adoption can be grueling, as foster children are often embroiled in the legal battle between their biological parents and the State for termination of parental rights.
Consent of Birth Parents or Termination of Parental Rights
Parental rights of biological parents can be terminated either by voluntary consent or if the court terminates their rights. Of course, consent is the smoothest route to completing an adoption – litigation for terminating parental rights can be hotly contested and require additional hearings.
Consent to an adoption by the birth parents must be in writing and may be executed more than 48 hours after the child is born. If such consent is signed in the presence of a New Mexico judge, there is no need for notarization, however, if the consent is taken by an individual who works for an agency in the state, it must be notarized. Consent must be given by the birth mother, the presumed or acknowledged father, the proposed adoptive parent and the department or agency placing the child. If the child being adopted is age 14 or older, then the child must also consent. If the child is of Native American heritage, the Indian Child Welfare Act requires consent from an Indian custodian. Consent by the biological parents cannot be withdrawn unless it is found that the consent was obtained through fraud. Following the entry of the final adoption decree, consent cannot be withdrawn for any reason.
There are certain instances where consent is not required or is “implied” by the parent’s actions. In private adoptions, some biological parents relinquish their rights to an agency, so obtaining their consent during the adoption is not necessary. Similarly, if parental rights had already been terminated by the court, consent or termination is not required a second time once the adoption begins. A biological father who conceived a child as a result of rape or incest, or a father who takes no affirmative action to establish himself as the father (named on the birth certificate, signing the putative father registry, living with the mother during pregnancy or after the birth, etc.) do not need to consent to an adoption. Consent is “implied” by the court if the child has been abandoned without justifiable cause, including leaving the child with no identification for at least two weeks, or leaving the child with no support or communication for 3 months (if under the age of 6 years) or 6 months (if the child is 6 years or older). Biological parents must be very careful – if a parent does not consent to an adoption, failure to respond to notices and court documents could lead the court to decide that the parent’s consent is not required.
If the court is terminating parental rights, this will be done without the parent’s consent. The most important consideration for the court is the physical, mental, and emotional welfare and needs of the child. Termination can occur if the court finds the parents neglected or abused the child and are unlikely to cure the circumstances surrounding such abuse. Abuse and neglect terminations can be extremely complicated, as even if the biological parent is able to cure the circumstances of abuse, if enough time has passed that the child has created significant bonds with an adoptive family and has lost the bond with the biological family, the court could find that termination of the biological parent’s rights is still appropriate.
Other Adoption Requirements
While consent or termination of biological parents will always be required, adoptions can include several other steps, depending on the type of adoption. Some common requirements include:
- Pre-placement Study (“Home Study”). Before you are allowed to adopt a child in the state of New Mexico, a “pre-placement study”—an evaluation process which assesses the ability of the prospective parents to provide a stable home—must be completed. The home study is extensive and includes such things as interviews with the adoptive parents and the adoptee (if age appropriate), home visits, interviews with the birth parents, criminal background checks and current medical certificates of the prospective parents, reference letters, employment and financial verification of the prospective parents and a statement of the capacity and readiness for parenthood of the prospective parents. The report from the pre-placement study is filed with the court. Pre- and post-placement studies are not required for stepparent adoptions, or adoptions where the petitioner is a relative or person named in a deceased parent’s will.
- “Post-placement Report” If your adoption includes a pre-placement study, a post-placement report will also be filed with the court. Post-placement report occurs after an adoptee is placed in a family’s home, and ultimately gives a recommendation to the court if granting the petition for adoption would be in the best interest of the child. This report is also very exhaustive, including observations between the adoptee and the prospective parents, the adoptee’s adjustment and integration into the family, the suitability of the home, costs and fees connected with the adoption, and more.
- Background Check A prospective adopting parent is required to provide their fingerprints to the Children Youth and Families Department in order for a criminal history records check and background check to be conducted. The result of the check must be filed with the Court. The background check will include not only criminal records, but also any records in Children Youth and Families Department regarding neglect and/or abuse of a child. Background checks will also be conducted on any other adult living in the same house as the adopting parent.
- Counseling Counseling can be required for many participants in an adoption. The biological parent must receive counseling prior to giving consent or relinquishment. If the adoptee is 10 years or older, the adoptee must receive counseling. In a stepparent adoption, both the stepparent and the custodial parent must go to counseling if they have been married for less than 2 years. Once counseling is complete, the counselor provides a brief narrative confirming counseling was received and that the person receiving counseling understood the adoption process and its consequences.
Types of Adoption
There are a number of different types of adoption, including adoption through a public or private agency, an independent adoption, adoption through identification, adopting as a same-sex couple, relative adoption, stepparent adoption, international adoption and adult adoption. Public and private adoptions are regulated by the state; public adoption agencies generally handle wards of the state while private adoption agencies place children brought to the agency by parents or expectant parents. Private adoption agencies are usually social service organizations or charities.
An independent adoption is a direct arrangement between the adoptive parents and the birth parents—it is always a good idea to involve an Albuquerque adoption attorney in an independent adoption since there are a number of things which could potentially go wrong. When an adoptive parent finds a mother who wants to put her child up for adoption, then an identified adoption involves a combination of agency and independent adoptions. The advantage of this type of adoption is that there is no wait, and the adoptive parents have greater control when choosing the child they adopt. International adoptions are the most complicated, have the most restrictions, and can be the most expensive.
Stepparent adoptions occur when a parent’s new spouse adopts the child of the parent, and requires the consent of both birth parents. Stepparent adoptions can bypass many of the requirements of private adoptions, such as the pre-placement and post-placement report. The state of New Mexico has no prohibitions on adoption by same-sex couples so long as all normal requirements are met. Relative adoptions occur when the relative of a child—such as a grandparent, aunt or uncle—steps forward to adopt, and, in fact, the laws of New Mexico favor relatives raising children, making this type of adoption easier in many cases. Though not all states allow adult adoptions, the state of New Mexico does under NM Statutes §40-14-1, and an adult adoption does not include many of the steps required for adopting a minor.
Any type of adoption may be “open” or “closed.” It used to be the standard that all adoptions were “closed,” i.e. the biological parents had no contact with their biological child or the adoptive parents once the adoption was complete. However, more and more adoptions are now “open” adoptions. Open adoptions mean that the final decree of adoption not only finalizes the adoption, but outlines the agreed-upon contact into an enforceable order.
The manner and frequency of contact in an open adoption is only by agreement. The adoptive parents could agree to provide the biological parents with “non-identifying information” for the child, such as pictures or written summary of the child’s life, leaving out any information that would allow the biological parents to contact the child. The adoptive parents could provide “identifying” information, but with an understanding, the biological parents do not contact the child. However, the parents could agree on visitation between the child and the biological parents. Sometimes, especially in the foster system, siblings can be adopted by different families, in which case an open adoption could include terms for contact between the siblings. When visitation is agreed to in an adoption, it is possible the court will appoint a Guardian ad Litem to represent the child and make sure the agreement aligns with the child’s best interests.
While an adoption is always final, the court will retain jurisdiction over the open adoption agreement to enforce or modify the terms of contact. If there has been a substantial change in circumstances that show the agreed contact is no longer in the child’s best interest, the court could modify the terms, or cease contact entirely.
How an Experienced Adoption Attorney Can Help
If you are considering adoption, it is extremely important that you speak with an experienced adoption attorney from the Mulcahy Law Firm. We have significant knowledge regarding adoption in New Mexico, and having an adoption lawyer by your side from start to finish can ensure the process is properly handled with no adverse repercussions down the line. Contact the Mulcahy Law Firm today for a comprehensive consultation.