2019 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 10B - Kinship Guardianship
Section 40-10B-13 - Rights and duties of guardian.

Universal Citation: NM Stat § 40-10B-13 (2019)

A. 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.

B. 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.

C. 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.

History: Laws 2001, ch. 167, § 13.

ANNOTATIONS

Kinship guardians possess the rights of biological parents. — A kinship guardian appointed under the Kinship Guardianship Act, 40-10B-1 NMSA 1978 et seq., possesses the same legal rights and responsibilities of a biological parent and may not be involuntarily dismissed as a party from a termination of parental rights case under the Abuse and Neglect Act, 32A-4-1 NMSA 1978 et seq., without first revoking the kinship guardianship according to the procedures specified in the Kinship Guardianship Act and the rules of evidence, but is not a necessary and indispensable party as defined by Rule 1-019 NMRA. State ex rel. Children, Youth & Families Dep't v. Djamila B., 2015-NMSC-003.

Where guardian was appointed by a family court as a kinship guardian pursuant to the Kinship Guardianship Act, 40-10B-1 NMSA 1978 et seq., and where Children, Youth and Families Department (CYFD) brought abuse and neglect proceedings in children's court against guardian and children's biological parents pursuant to the Abuse and Neglect Act, 32A-4-1 NMSA 1978 et seq., the kinship guardian, who possesses the same legal rights and responsibilities of a biological parent, must be a party to a termination of parental rights hearing under the Abuse and Neglect Act, but is not a necessary and indispensable party as defined by Rule 1-019 NMRA. State ex rel. Children, Youth & Families Dep't v. Djamila B., 2015-NMSC-003.

Kinship guardian is a necessary and indispensable party. — A kinship guardian under the Kinship Guardianship Act, 40-10B-1 NMSA 1978 et seq., who is named as a respondent in an abuse and neglect proceeding is a necessary and indispensable party in the abuse and neglect case and may not be involuntarily dismissed from the case without first revoking the kinship guardianship according to the procedures specified in the Kinship Guardianship Act. State ex rel. CYFD v. Djamila B., 2014-NMCA-045, cert. granted, 2014-NMCERT-004.

Where the guardian was appointed as kinship guardian for the children pursuant to the Kinship Guardianship Act, 40-10B-1 NMSA 1978 et seq.; the children lived with the guardian; the department filed a neglect and abuse petition under the Abuse and Neglect Act, Chapter 32A, Article 4 NMSA 1978, against the guardian and the children's parents; the district court adopted the department's permanency plan to reunify the children with the guardian; six months later, the district court changed the permanency plan from reunification to adoption and dismissed the guardian from the proceedings; and the guardian's kinship guardianship had not been revoked pursuant to the Kinship Guardianship Act because the permanency plan included a proposed adoption, the guardian was a necessary and indispensable party to the abuse and neglect case so long as the guardian's kinship guardianship remained in effect. State ex rel. CYFD v. Djamila B., 2014-NMCA-045, cert. granted, 2014-NMCERT-004.

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