adoption; guardianship; placement of Indian children.

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A. In the case of a foster care placement of an Indian child, except as provided in Subsection C of this section, the child shall be placed in the least restrictive setting that:

(1)     most closely approximates a family, taking into consideration the Indian child’s sibling attachment;

(2)     allows the Indian child’s special needs, if any, to be met;

(3)     is in reasonable geographic proximity to the Indian child’s home, extended family members or siblings; and

(4)     is in accordance with the order of preference established by the Indian child’s tribe by any means, or, if that Indian tribe has not established placement preferences, preference shall be given in accordance with the following order of preference:

(a) an extended family member of the Indian child;

(b) a foster home licensed, approved or specified by the Indian child’s tribe; or

(c) a foster home licensed or approved by a licensing authority in New Mexico and in which one or more of the licensed or approved foster parents is an Indian.

B. Under no circumstances shall an Indian child under three months of age be placed outside of the placement preferences provided in this section.

C. If an Indian child is placed in a foster care placement that is contrary to the placement preferences provided in this section, a secondary permanency plan shall not be simultaneously permitted, and before the child’s placement may be changed to an adoptive or other permanent placement, the department shall:

(1)     conduct monitoring at least every thirty days to determine whether a placement that comports with the placement preferences provided in this section is available;

(2)     at the inception of the case and periodically through the pendancy of the case, make active efforts to identify a placement that aligns with the placement preferences as soon as practicable; and

(3)     at the inception of the case and periodically through the pendancy of the case, document all active efforts made to identify a placement that aligns with the placement preferences. At minimum, this shall include:

(a) contacting the Indian child’s tribe; (b) conducting a relative search;

(c) interviewing relatives throughout the case;

(d) making ongoing active efforts to search for and identify relatives to the Indian child throughout the case;

members;

(e) providing the Indian child’s tribe with all information regarding family (f) offering relatives an expedited foster care license;

(g) assisting relatives with practical supports through the licensing process and actively supporting relatives in overcoming barriers for licensure;

(h) conducting timely home studies when identifying a placement that aligns with the placement preference;

(i) providing continued contact, including visitation; and

(j) providing access to culturally appropriate interventions.

D. If the Indian child is in a foster care placement that is not a preferred placement, the court shall hold hearings no less than every six months. The department shall continue to bear the burden of establishing why good cause continues to exist for the current placement or why the Indian child is not in a preferred placement.

E. Whenever there is any change in placement of an Indian child, the department shall file a notice of placement change with the court. The department shall also notify the Indian child’s tribe, by certified mail with return receipt requested.

F. If there is a voluntary placement agreement in which the Indian child at first was not determined to be an Indian child and was later determined to be an Indian child, the agreement is voided.

G. If the Indian child’s tribe has established a different order of preference than that specified in the Indian Family Protection Act, the Indian child’s tribe’s placement preferences shall apply.

H. In determining whether good cause exists, the court shall not permit departure from the placement preferences based on:

(1)     the socioeconomic status of the placement;

(2)     a home environment that does not impact the safety and well-being of the Indian child;

(3)     ordinary bonding or attachment that occurred from time spent in a non- preferred placement that was made in violation of the Indian Family Protection Act; or

(4)     the extent of the participation of the parents or the Indian child in tribal, cultural, social, religious or political activities.

I. In the case of a foster care placement, adoptive placement or guardianship of an Indian child pursuant to the Children’s Code [N.M. Stat. Ann. Chapter 32A], if the Indian child’s tribe establishes a different order of preference, the adoption agency or court effecting the placement shall follow the order of preference established by the Indian child’s tribe. When appropriate, the preference of the Indian child or parent may be considered; provided that the court has not terminated the parental rights of the Indian child’s parent.

J. The department shall support and not delay the placement of the Indian child with the Indian child’s extended family members and adult relatives regardless of the stage of the case in the child custody proceedings.

K. Whenever there is any change in the placement of an Indian child, the department shall file notice of the placement change with the court.

L. If the court finds there was a delay in placement with the Indian child’s extended family members or adult relatives pursuant to Paragraph (3) of Subsection C of section 4 [32A-28-4 N.M. Stat. Ann.] of the Indian Family Protection Act, this factor shall not be used in a finding for good cause to deviate from the placement preferences of this section or the placement preferences of the Indian child’s tribe.

M. An Indian child shall be placed in accordance with the placement preferences unless there is good cause to depart from the placement preferences as determined by the court after a hearing; provided that:

(1)     the party that asserts good cause exists not to follow the placement preferences shall state the reasons for this assertion in writing to the court. The court shall make a record. The party making the assertion shall provide all parties to the case and the Indian child’s tribe with a copy;

(2)     the party seeking the departure from the placement preferences has the burden of proving by clear and convincing evidence that there is good cause to depart from the preferences; and

(3)     a court’s determination of good cause to depart from the placement preferences shall be made in writing and be based on the considerations set forth by the Indian Family Protection Act.