Current through Register Vol. 35, No. 6, March 26, 2024
A. See Sections 32A-5-40 and 32A-5-41 NMSA
1978.
B. Confidentiality of
post-decree records: After the decree of adoption has been entered, all court
files containing records filed with the court or the department in the adoption
proceeding shall remain confidential and withheld from public inspection except
as provided in the Act and regulations.
C. Procedure for access to post-decree
records by an adult adoptee, biological parent of an adult adoptee, sibling of
an adoptee, or adoptive parent of a minor adoptee:
(1) Existence of record inquiry to the
department: The party seeking access to the records shall first inquire of the
department in writing whether a record of an adoptee's adoption is on file with
the department. The adoption inquiry form is available through the local
department office. The inquiry shall be forwarded to the department's central
adoptions unit at the address specified in Section 11.2 [now Subsection B of
8.26.3.11 NMAC].
(2)
Non-identifying information:
(a)
Non-identifying information may be obtained without a court order by submitting
to the department's central adoptions unit a written request, with the
requesting person's signature notarized. See Section 11.2 [now Subsection B of
8.26.3.11 NMAC].
(b)
Non-identifying information is limited to the following:
(i) the health and medical histories of the
adoptee's biological parents;
(ii)
the health and medical history of the adoptee;
(iii) the adoptee's general family
background, including ancestral information, without name references or
geographical designations;
(iv) if
the adoptee is an Indian child, tribal information;
(v) physical descriptions of the adoptee and
the adoptee's biological parents; and
(vi) the length of time the adoptee was in
the care and custody of any person other than the adoptive parents.
(3) Identifying
information: Identifying information may be obtained without a court order if
the person about whom the information is sought has signed and filed with the
department or the court a release of identifying information.
(a) Request for identifying information: A
request for identifying information shall be made in writing to the
department's central adoptions unit and the requesting person's signature shall
be notarized.
(b) Affidavit
permitting release of identifying information: If the party about whom the
identifying information is being requested has filed a statement agreeing to
the release of identifying information, the department shall release
identifying information.
(c)
Affidavit refusing release of identifying information: If the party about whom
the identifying information is being requested has filed a statement indicating
that no identifying information shall be released, the department shall not
release any identifying information. Additionally, the department shall notify
the requesting party that the party about whom the identifying information is
sought has filed an affidavit requesting that no identifying information be
released.
(d) No affidavit on file:
If the party about whom the identifying information is requested has not filed
any statement regarding release of identifying information, the department
shall not release any identifying information. Additionally, the department
shall notify the requesting party that the party about whom the identifying
information is sought has not filed any statement regarding release of
identifying information.
(4) Application to the court for release of
identifying information:
(a) Petition for
appointment of confidential intermediary: If there is nothing in the department
files stating whether the party about whom the identifying information is being
requested is willing or unwilling to release his/her identity, the requesting
person may petition the court pursuant to Section 32A-5-41 NMSA 1978 for
appointment of a confidential intermediary.
(b) Confidential intermediary duties: Upon
appointment, the confidential intermediary shall:
(i) Review court files: Check the court files
for an affidavit regarding release of identifying information.
(ii) Search and contact: If such an affidavit
does not exist, the confidential intermediary shall make a reasonable search
for and discreetly contact the person about whom the identifying information is
being requested to ascertain whether such person is willing to have identifying
information released to the petitioner or is willing to meet or communicate
with the petitioner. The confidential intermediary shall only describe the
petitioner in general, non-identifying terms. If the party about whom the
identifying information is sought agrees to the release of identifying
information or to meet or communicate with the petitioner, the confidential
intermediary shall proceed as provided in Section 32A-5-41(E) NMSA 1978. If the
party about whom the identifying information is sought refuses to release
identifying information, the confidential intermediary shall inform the
petitioner and the petitioner may withdraw the petition or request the court to
release identifying information for good cause.
(c) A confidential intermediary cannot gain
client identifying information from other sources, such as the Internet,
without prior court approval as provided in Section 32A-5-41 NMSA
1978.
(d) Release of identifying
information for good cause: If there is a statement on file with the department
or the court refusing to release identifying information, or the party refuses
the release of identifying information when contacted by the confidential
intermediary, the petitioner may petition the court for release of identifying
information for good cause.
D. Filing of statement regarding release of
identifying information: After the entry of the final decree, the adult adoptee
or the biological parent of the adult adoptee may file an affidavit at any time
for release of identifying information or may change his/her position regarding
the release of identifying information. The most recent affidavit supersedes
all prior affidavits.