Kinship Guardianship as a Permanency Option - New Mexico

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Definitions

Citation: Ann. Stat. § 40-10B-3

As used in the Kinship Guardianship Act:

  • The term 'caregiver' means an adult, who is not a parent of a child, with whom a child resides and who provides that child with the care, maintenance, and supervision consistent with the duties and responsibilities of a parent of the child.
  • The term 'kinship' means the relationship that exists between a child and a relative of the child, a godparent, a member of the child's Tribe or clan, or an adult with whom the child has a significant bond.
  • The term 'relative' means an individual related to a child as a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, any person denoted by the prefix 'grand' or 'great,' or the spouse or former spouse of the persons specified.

Purpose of Guardianship

Citation: Ann. Stat. §§ 40-10B-2; 32A-4-31

It is the policy of the State that the interests of children are best served when they are raised by their parents. When neither parent is able or willing to provide appropriate care, guidance, and supervision to a child, it is the policy of the State that, whenever possible, a child should be raised by family members or kinship caregivers.

The Kinship Guardianship Act is intended to address those cases where a parent has left a child or children in the care of another for 90 consecutive days and that arrangement leaves the child or children without appropriate care, guidance, or supervision. The purposes of the Kinship Guardianship Act are to:

  • Establish procedures to effect a legal relationship between a child and a kinship caregiver when the child is not residing with either parent
  • Provide a child with a stable and consistent relationship with a kinship caregiver that will enable the child to develop physically, mentally, and emotionally to the maximum extent possible, when the child's parents are not willing or able to provide appropriate care

The court may establish a permanent guardianship between a child and the guardian when the prospective guardianship is in the child's best interests and when:

  • The child has been adjudicated as an abused or neglected child.
  • The Children, Youth and Families Department has made reasonable efforts to reunite the parent and child, and further efforts by the department would be unproductive.
  • Reunification of the parent and child is not in the child's best interests because the parent continues to be unwilling or unable to properly care for the child.
  • The likelihood of the child being adopted is remote, or it is established that termination of parental rights is not in the child's best interests.

A Guardian's Rights and Responsibilities

Citation: Ann. Stat. § 40-10B-13

A guardian appointed for a child pursuant to the Kinship Guardianship Act has the legal rights and duties of a parent, except the right to consent to adoption of the child and except for parental rights and duties that the court orders retained by a parent.

Unless otherwise ordered by the court, a guardian appointed pursuant to the Kinship Guardianship Act has authority to make all decisions regarding visitation between a parent and the child.

Qualifying the Guardian

This issue is not addressed in the statutes and regulations reviewed.

Procedures for Establishing Guardianship

Citation: Ann. Stat. §§ 32A-4-31; 32A-4-32; 40-10B-5; 40-10B-8

In proceedings for permanent guardianship, the court shall give primary consideration to the physical, mental, and emotional welfare and needs of the child.

Any adult, including a relative or foster parent, may be considered as a permanent guardian, provided that if the child is in the legal custody of the department, the department grants consent to the guardianship. The court shall appoint a person nominated by the child, if the child is age 14 or older, unless the court finds the appointment contrary to the best interests of the child.

A motion for permanent guardianship may be filed by any party. A petition seeking the appointment of a guardian pursuant to the Kinship Guardianship Act may be filed only by the following:

  • A kinship caregiver
  • A caregiver who is age 21 or older, with whom no kinship with the child exists, and who has been nominated to be guardian of the child by the child who age 14 or older
  • A caregiver designated formally or informally by a parent

A guardian may be appointed pursuant to the Kinship Guardianship Act only if:

  • A parent of the child is living and has consented in writing to the appointment of a guardian and the consent has not been withdrawn.
  • A parent of the child is living, but all parental rights in regard to the child have been terminated or suspended by prior court order.
  • The child has resided with the petitioner without the parent for a period of 90 days or more immediately preceding the date the petition is filed, and a parent having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance, and supervision for the child or there are extraordinary circumstances.
  • No guardian of the child is currently appointed pursuant to the Uniform Probate Code.

Contents of a Guardianship Order

Citation: Ann. Stat. §§ 40-10B-8; 40-10B-13; 32A-4-32

As part of a judgment entered pursuant to the Kinship Guardianship Act, the court may order a parent to pay the reasonable costs of support and maintenance of the child that the parent is financially able to pay. The court may use the child support guidelines set forth in § 40-4-11.1 to calculate a reasonable payment.

A certified copy of the court order appointing a guardian pursuant to the Kinship Guardianship Act shall be satisfactory proof of the authority of the guardian, and letters of guardianship need not be issued.

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.

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.

Modification/Revocation of Guardianship

Citation: Ann. Stat. §§ 40-10B-12; 32A-4-32

Any person, including a child who has reached his or her 14th birthday, may move for revocation of a guardianship created pursuant to the Kinship Guardianship Act. The person requesting revocation shall attach to the motion a transition plan proposed to facilitate the reintegration of the child into the home of a parent or a new guardian. A transition plan shall take into consideration the child's age, development, and any bond with the guardian.

If the court finds that a preponderance of the evidence proves a change in circumstances and the revocation is in the best interests of the child, it shall grant the motion and:

  • Adopt a transition plan proposed by a party or the child's guardian ad litem
  • Propose and adopt its own transition plan
  • Order the parties to develop a transition plan by consensus, if they will agree to do so

The court shall retain jurisdiction to enforce its judgment of permanent guardianship. Any party may make a motion for revocation of the order granting guardianship when there is a significant change of circumstances, including:

  • The child's parent is able and willing to properly care for the child.
  • The child's guardian is unable to properly care for the child.

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 age 14. The court shall appoint an attorney for the child in all proceedings for the revocation of permanent guardianship if the child is age 14 or older at the inception of the proceedings.

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.

Kinship Guardianship Assistance

This issue is not addressed in the statutes and regulations reviewed.

Links to Agency Policies

Kinship guardianship is not addressed in regulation or agency policy.