A. A motion to terminate parental rights may be filed at any stage of the abuse or neglect proceeding by a party to the proceeding.

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B. The motion for termination of parental rights shall set forth:

(1)     the date, place of birth and marital status of the child, if known;

(2)     the grounds for termination and the facts and circumstances supporting the grounds for termination;

(3)     the names and addresses of the persons or authorized agency or agency officer to whom legal custody might be transferred;

(4)     whether the child resides or has resided with a foster parent who desires to adopt the child;

(5)     whether the motion is in contemplation of adoption;

(6)     the relationship or legitimate interest of the moving party to the child; and

(7)     whether the child is subject to the Indian Family Protection Act N.M. Stat. Ann. § 32A-28-1 to 32A-28-42.

C. Notice of the filing of the motion, accompanied by a copy of the motion, shall be served by the moving party on all other parties, the foster parent, preadoptive parent or relative providing care for the child with whom the child is residing, foster parents with whom the child has resided for six months within the previous twelve months, the custodian of the child, any person appointed to represent any party and any other person the court orders. Service shall be in accordance with the Children’s Court Rules for the service of motions, except that foster parents and attorneys of record in this proceeding shall be served by certified mail. The notice shall state specifically that the person served shall file a written response to the motion within twenty days if the person intends to contest the termination. Further notice shall not be required on a parent who has been provided notice previously pursuant to Section 32A-4-17 N.M. Stat. Ann. and who failed to make an appearance.

D. When a motion to terminate parental rights is filed, the moving party shall request a hearing on the motion. The hearing date shall be at least thirty days, but no more than sixty days, after service is effected upon the parties entitled to service under this section. The moving party shall also file a motion for court-ordered mediation between the parent and any prospective adoptive parent to discuss an open adoption agreement. If an open adoption agreement is reached at any time before termination of parental rights, it shall be made a part of the court record.

E. In any action for the termination of parental rights brought by a party other than the department and involving a child in the legal custody of the department, the department may:

(1)     litigate a motion for the termination of parental rights that was initially filed by another party; or

(2)     move that the motion for the termination of parental rights be found premature and denied.

F. When a motion to terminate parental rights is filed, the department shall perform concurrent planning.

G. When a child has been in foster care for not less than fifteen of the previous twenty-two months, the department shall file a motion to terminate parental rights, unless:

(1)     a parent has made substantial progress toward eliminating the problem that caused the child’s placement in foster care; it is likely that the child will be able to safely return to the parent’s home within three months; and the child’s return to the parent’s home will be in the child’s best interests;

(2)     the child has a close and positive relationship with a parent and a permanent plan that does not include termination of parental rights will provide the most secure and appropriate placement for the child;

(3)     the child is fourteen years of age or older, is firmly opposed to termination of parental rights and is likely to disrupt an attempt to place the child with an adoptive family;

(4)     a parent is terminally ill, but in remission, and does not want parental rights to be terminated; provided that the parent has designated a guardian for the child;

(5)     the child is not capable of functioning if placed in a family setting. In such a case, the court shall reevaluate the status of the child every ninety days unless there is a final court determination that the child cannot be placed in a family setting;

(6)     grounds do not exist for termination of parental rights;

(7)     the child is an unaccompanied, refugee minor and the situation regarding the child involves international legal issues or compelling foreign policy issues;

(8)     adoption is not an appropriate plan for the child; or

(9)     the parent’s incarceration or participation in a court-ordered residential substance abuse treatment program constitutes the primary factor in the child’s placement in substitute care and termination of parental rights is not in the child’s best interest.

H. For purposes of this section, a child shall be considered to have entered foster care on the earlier of:

(1)     the date of the first judicial finding that the child has been abused or neglected; or

(2)     the date that is sixty days after the date on which the child was removed from the home.

I. The grounds for any attempted termination shall be proved by clear and convincing evidence.

J. When the court terminates parental rights, it shall appoint a custodian for the child and fix responsibility for the child’s support.

K. A judgment of the court terminating parental rights divests the parent of all legal rights and privileges and dispenses with both the necessity for the consent to or receipt of notice of any subsequent adoption proceeding concerning the child. A judgment of the court terminating parental rights shall not affect the child’s rights of inheritance from and through the child’s biological parents.

L. When the court denies a motion to terminate parental rights, the court shall issue appropriate orders immediately. The court shall direct the parties to file a stipulated order and interim plan or a request for hearing within thirty days of the date of the hearing denying the termination of parental rights.