New Mexico HB 135: INDIAN FAMILY PROTECTION ACT

Bill Text

HHHC/HB 135/a
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AN ACT
RELATING TO CHILDREN; ENACTING THE INDIAN FAMILY PROTECTION
ACT; CONSOLIDATING PROVISIONS SPECIFIC TO CHILD CUSTODY
PROCEEDINGS INVOLVING INDIAN CHILDREN INTO THE INDIAN FAMILY
PROTECTION ACT; PROVIDING ADDITIONAL REQUIREMENTS GOVERNING
CHILD CUSTODY PROCEEDINGS INVOLVING INDIAN CHILDREN;
PROVIDING FOR CONFIDENTIALITY OF CERTAIN RECORDS; PROVIDING A
PENALTY; CREATING THE OFFICE OF TRIBAL AFFAIRS WITHIN THE
CHILDREN, YOUTH AND FAMILIES DEPARTMENT; REQUIRING A CULTURAL
COMPONENT IN CASE PLANS IN ABUSE AND NEGLECT PROCEEDINGS;
AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the Children's Code is
enacted to read:
"SHORT TITLE.--Sections 1 through 42 of this act may be
cited as the "Indian Family Protection Act"."
SECTION 2. A new section of the Children's Code is
enacted to read:
"DEFINITIONS.--As used in the Indian Family Protection
Act:
A. "active efforts" means efforts that are
affirmative, active, thorough and timely and that represent a
higher standard of conduct than reasonable efforts;
B. "adoptive placement" means a permanent

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placement of an Indian child for adoption, including an
action resulting in a final decree of adoption;
C. "child custody proceeding" means an action for
foster care placement, termination of parental rights,
permanent guardianship or adoptive placement or an action
pursuant to Section 32A-3A-8 NMSA 1978 or the Family in Need
of Court-Ordered Services Act and includes investigations and
other preliminary activities preceding the formal initiation
of an action, but does not include:
(1) delinquency proceedings; and
(2) custodial proceedings or kinship
guardianships pursuant to Chapter 40 NMSA 1978;
D. "cultural compact" means an agreement that
documents how an Indian child placed in an adoptive or
guardianship home will continue to actively participate in
the child's cultural learning and activities and that is
entered into among:
(1) the adoptive parents or guardians of the
Indian child, which parents or guardians are not members of
the Indian child's tribe; and
(2) the Indian child's tribe;
E. "discussion with an Indian tribe" means
documented good faith efforts to actively communicate and
work with an Indian tribe;
F. "extended family member" means a person who is

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defined to be an extended family member by law or custom of
an Indian child's tribe or, in the absence of such law or
custom, means a person who is eighteen years of age or older
and who is an Indian child's grandparent, aunt or uncle,
brother or sister, brother-in-law or sister-in-law, niece or
nephew, first or second cousin, stepparent or godparent;
G. "fictive kin" means a person:
(1) who is not a relative or an extended
family member of an Indian child and who has a significant,
family-like relationship with the child or the child's
family, which relationship existed prior to the child's entry
into foster care;
(2) who meets the definition of "fictive
kin" as established by an Indian child's tribe's law, custom
or tradition; or
(3) chosen by an Indian child who is
fourteen years of age or older, regardless of when the
relationship between the person and the Indian child was
established, when it is in the best interest of the child to
identify that person as fictive kin; and
H. "foster care placement" means:
(1) an action pursuant to the Abuse and
Neglect Act removing an Indian child from the child's parent,
guardian or Indian custodian for temporary placement in a
foster home or institution or the home of a guardian where

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the parent or Indian custodian cannot have the child returned
upon demand, but in which parental rights have not been
terminated; or
(2) the temporary placement of an Indian
child in foster care pursuant to a voluntary agreement
entered into between a parent, guardian or Indian custodian
and the department pursuant to the Family Services Act."
SECTION 3. A new section of the Children's Code is
enacted to read:
"INDIAN CHILD'S DOMICILE--DETERMINATION OF DOMICILE AND
RESIDENCE.--
A. In a child custody proceeding involving an
Indian child, the court shall determine and make an order of
the domicile and residence of the Indian child and whether
the Indian child is under the jurisdiction of a tribal court.
B. The department shall communicate with the
Indian child's tribe as necessary to assist the court in
making a determination pursuant to this section. If it is
unclear which tribe is the Indian child's tribe, the
department shall communicate with any tribe with which there
is reason to know that the Indian child may be a member or
eligible for member