NEW MEXICO CHILD WELFARE HANDBOOK

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2 NEW MEXICO CHILD WELFARE HANDBOOK A LEGAL MANUAL ON CHILD ABUSE AND NEGLECT A PROJECT OF THE CORINNE WOLFE CHILDREN S LAW CENTER AND THE NEW MEXICO JUDICIAL EDUCATION CETNER AT THE INSTITUTE OF PUBLIC LAW, UNM SCHOOL OF LAW

3 New Mexico Child Welfare Handbook 2000, 2003, 2007, 2011 by the Institute of Public Law, University of New Mexico School of Law Institute of Public Law MSC University of New Mexico Albuquerque, NM Ph: (505) Fax: (505) This handbook is intended for educational and informational purposes only. The book is not intended to provide legal advice and readers are responsible for consulting the statutes, rules and cases pertinent to the proceeding in which they are involved or the issue they are addressing. Readers must also keep in mind that recent years have seen substantial changes in the laws and procedures governing child abuse and neglect proceedings and that both law and procedure are continuing to change.

4 Introduction to the Handbook Highlights of the 2011 Update Detailed Table of Contents SUMMARY OF CONTENTS PART A: OVERVIEW 1. Overview of the Abuse and Neglect Legal System 2. Rights of Parents and Child 3. Key Concepts PART B: ROLES AND RESPONSIBILITIES 4. Children s Court Attorney 5. Respondent s Attorney 6. Guardian ad Litem for Child under 14 (GAL) 6A. Attorney for Child Age 14 or Older (Youth Attorney) 7. Guardian ad Litem for Incompetent or Minor Respondent 8. Children, Youth and Families Department (CYFD) 9. Court-Appointed Special Advocate (CASA) 10. Citizen Review Board (CRB) 11. Foster Parents PART C: ABUSE AND NEGLECT PROCEEDINGS 12. Commencement of Case 13. Custody Hearing 14. Pre-Adjudicatory Hearing Meeting 15. Adjudicatory Hearing 16. Dispositional Hearing 17. Initial Judicial Review Hearing 18. Pre-Permanency Hearing Meeting 19. Permanency Hearing 20. Permanency Review Hearing 21. Subsequent Judicial Review Hearing 22. Termination of Parental Rights 23. Permanent Guardianship Hearing 24. Appeals PART D: EVIDENTIARY AND PROCEDURAL ISSUES 25. Parties; Intervention 26. Discovery August Page i

5 Summary of Contents Evidence 28. Court Orders During Pendency of Proceeding 29. Case Management PART E: RELATED PROCEEDINGS 30. Adoption 30A Kinship Guardianship 31. Families in Need of Court-Ordered Services 32. Mental Health and Developmental Disabilities 33. Juvenile Delinquency 34. Criminal Abuse and Neglect Proceedings PART F: MEDICAL, PSYCHOLOGICAL AND SOCIAL ISSUES 35. Physical, Mental and Emotional Condition of Child 36. Physical, Mental and Emotional Condition of Parents 37. Psychological Assessments PART G: FEDERAL AND TRIBAL CONSIDERATIONS 38. Federal Laws Affecting State Proceedings 39. Indian Children and ICWA A. Acronyms B. Glossary C. Table of Statutes D. Table of Cases APPENDICES Page ii August 2011

6 INTRODUCTION TO THE HANDBOOK Acknowledgements The staff of the Corinne Wolfe Children s Law Center and the New Mexico Judicial Education Center at the University of New Mexico School of Law, Institute of Public Law, gratefully acknowledge the remarkably generous assistance provided by the many volunteers throughout the state who helped in developing this Handbook. The Handbook, when originally published in 2000, was ably guided by an exceptionally talented and hard-working planning committee made up of the following members, who also served as writers and reviewers: Angela Adams, Chief Children s Court Attorney, Children, Youth & Families Dept. Hon. Christina Armijo, New Mexico Court of Appeals Patricia Briggs, Project Director, Citizen Review Board Hon. Ralph Gallini, Fifth Judicial District Toby Grossman, Attorney, American Indian Law Center, Inc. Jennifer Davis Hall, Attorney, Albuquerque Julie Fallin, Training Director, New Mexico CASA Network Edward Schissel, Children s Court Attorney, Children, Youth & Families Dept. Hon. Patricio M. Serna, New Mexico Supreme Court Susan Simmons, Attorney, Albuquerque Numerous other individuals have contributed their expertise and time in researching and writing portions of the Handbook or its 2003, 2007 and 2011 updates, reviewing and editing drafts, and providing help, support and good cheer along the way. The list is getting long: Laura Bassein Maryellen Bearzi Leigh Brunner Hon. Gary Clingman Cristen Conley Ann Desiderio Dr. Elizabeth Dinsmore Deborah Dungan Tara Ford Ellen Genné Ann Halter Michael Hart Hon. Alvin Jones Dr. Ken Kenney Peter Klages Oneida L Esperance Rebecca Liggett Gina Maestas Don Miller Susan Page Mary Ann Shaening Roy Stephenson Lisa Trabaudo Kelly Waterfall Reviewers, some of whom spent countless hours reviewing text for one or more editions: Iris Augusten Richard Bustamante Jean Conner Kari Converse Sara Seymour Crecca Hon. Cynthia Fry August Page iii

7 Introduction to the Handbook Deborah Gray Todd Heisey Jessica Martin Elizabeth McGrath Dr. Brian Meyer Hon. Peggy Nelson Brian O Connell Lisa Olewine Dan Pearlman Andrea Poole Hon. Jerry Ritter Hon. John Romero Carolyn Waters Linda Yen Cindy Camarata, Diane Garrity, Mark Katzman, Jeff Kauffman, Christine Montano, Nancy Simmons, and Jane Printz, among others, provided their generous assistance during work on the original edition. Purpose of the Handbook The purpose of the Handbook is to provide the judiciary and other members of the child welfare community with a comprehensive resource guide to New Mexico s child abuse and neglect process. While designed and written primarily for judges, the Handbook should be helpful to other participants in the legal system. The Handbook incorporates the applicable requirements of the Children s Code, the Children s Court Rules, court cases and federal laws. It summarizes the child abuse and neglect process, describes the roles and responsibilities of certain key participants, explains the hearings that may take place in a case, and addresses other relevant topics, such as related proceedings, evidence, psychological considerations and special provisions for Indian children. The Handbook is intended to serve as a current, convenient secondary source of law, policy and practice for child abuse and neglect cases. Do not rely on the Handbook as legal authority; instead, consult primary sources for specific legal language and requirements. Organization The Handbook is organized into seven general parts, each divided into chapters addressing the following topics: Part A: Overview Overview of the abuse and neglect process. Substantive and procedural rights of parents and children. Key concepts involved in the process. Part B: Roles and Responsibilities Roles and responsibilities of certain participants, including CYFD, attorneys for parents, the child s guardian ad litem and attorney, child advocates and foster parents. Page iv August 2011

8 Introduction to the Handbook Note that judges, parents and children are addressed throughout the Handbook and are not the subject of individual chapters in this part. Part C: Child Abuse and Neglect Proceedings Proceedings in order of their occurrence generally, from commencement of a case through appeal. Issues such as notification, timelines, standard of proof, required findings and other substantive and procedural matters. Part D: Evidentiary and Procedural Issues Intervention, discovery and evidence. Court orders during a case, case management techniques and mediation. Part E: Related Proceedings Adoption, kinship guardianship, families in need of court-ordered services, and procedures under mental health and developmental disabilities law. Juvenile delinquency and criminal child abuse and neglect. Part F: Medical, Psychological and Social Issues Physical, mental and emotional condition of parents and children. Types and uses of psychological assessments. Part G: Federal and Tribal Considerations Federal laws affecting state proceedings, including the Adoption and Safe Families Act and the Fostering Connections to Success and Increasing Adoptions Act. Indian children and the requirements of the Indian Child Welfare Act. In addition, the Handbook contains appendices which include common acronyms, a glossary of terms used in the Children s Code, and lists of statutes and cases cited in the text. Style and Format The Handbook is written in a narrative form, with every effort being made to achieve a balance between readability and accuracy in areas that are complex and governed by detailed statutes, rules and case law. Abbreviations are kept to a minimum and should be readily recognizable when encountered. Citations to statutes, rules and cases use the most concise style possible while still providing adequate reference information. Full citations can be found in the statute and case lists in the appendices. In general, citations in the text use the following style: August Page v

9 Introduction to the Handbook Statutes: New Mexico statutes are cited as - -, such as 32A-4-1, without NMSA Federal laws are cited as U.S.C., such as 25 U.S.C Rules: New Mexico judicial rules are cited as Rule -, such as Rule , without the addition of NMRA. Administrative rules are cited as... NMAC, such as NMAC. Cases: New Mexico cases are cited using the vender neutral citation, if available, as well as a citation to the New Mexico Reports. Hence, a case may be cited as NMSC-002, 143 N.M. 246 or, if the case is older, 119 N.M. 638 (1995). Complete citations can be found in the Table of Cases in Appendix D. For the first time, the Table of Cases also indicates where the case is cited in the Handbook. It is important for attorneys to note that the form of citation in this Handbook is for the sake of brevity and formatting and is not necessarily appropriate for formal citations in briefs. Refer to the Supreme Court General Rules, specifically Rule NMRA, for the proper form of citation for pleadings and papers filed with the court. Availability of Laws and Cases While the Handbook contains citations to numerous state and federal statutes, rules and cases, it does not provide their full text. You can find these legal materials in law libraries and through the Internet. Some examples of no-cost electronic sources are listed below. Statutes and Court Rules and Forms New Mexico statutes/court rules/forms: Federal statutes: Agency Rules Cases New Mexico Administrative Code: Federal regulations: New Mexico appellate cases: Federal cases: Effective Date The Handbook, originally published in November 2000 and updated in 2003, 2007 and 2011, is generally current through July As funds and staffing allow, the Handbook will Page vi August 2011

10 Introduction to the Handbook continue to be updated periodically, with the most current version available on the web at Production The Handbook was produced under the direction of attorneys Judy Flynn-O Brien and Pam Lambert in 2000 and 2003 and Ms. Flynn-O Brien and Beth Gillia in 2007 and Funding has been provided by the following sources over time: State Justice Institute Children, Youth and Families Department New Mexico Judicial Education Center Corinne Wolfe Children s Law Center Institute of Public Law University of New Mexico School of Law Several private foundations. The cover artwork was provided by the New Mexico CASA Network from its collection of art drawn by children in New Mexico. Access to the Handbook The 2011 Handbook is available free of charge on the Children s Law Center website, Users are also welcome to print out the Handbook for their convenience. For information on the possibility of purchasing hard copies, please contact the Children s Law Center at the address below. Permission to Reproduce For information on the permission and acknowledgements necessary for reproducing portions of the Handbook, please contact the Children s Law Center at the address below. Contact For further information on the Handbook, or to report errors or suggestions for future updates, please contact: Beth Gillia, Director Tracey Kincaid, Coordinator Ph: Ph: bgillia@unm.edu tkincaid@unm.edu Corinne Wolfe Children s Law Center School of Law, Institute of Public Law MSC , 1 University of New Mexico Albuquerque, NM August Page vii

11 Introduction to the Handbook This page intentionally left blank Page viii August 2011

12 HIGHLIGHTS OF THE 2011 UPDATE The New Mexico Child Welfare Handbook was last updated in Over the past four years, the Children s Code has been amended in a number of respects, the Children s Court Rules have been renumbered, updated and otherwise amended, and the appellate courts in the state have issued a number of opinions that are particularly relevant to Children s Court practice. The federal Fostering Connections to Success and Increasing Adoptions Act has also affected the landscape, prompting a number of the changes to the Children s Code that were enacted in Because of the number of changes to law and procedure over the past several years, most chapters of the Handbook have been revised in some way. The updated Handbook, generally current through July of 2011, includes changes in statutes, rules, practices and procedures and new case law since the end of Children s Code Changes The New Mexico Children s Code was amended extensively in 2009, with fewer changes seen in 2008, 2010 and Changes to the Code since 2007 include the following: General Provisions (Article 1): A purpose was added, namely to reduce overrepresentation of minority children and families in the juvenile justice, family services and abuse and neglect systems. The statute that allows law enforcement to help parents locate runaway children was amended to specify that such children may not be detained in secured settings while waiting for their parents. Abuse and Neglect Act (Article 4): Numerous changes were made to the Abuse and Neglect Act in 2009, including changes to the provisions on investigations, taking children into custody, releasing children from custody, custody hearings, placement, termination of parental rights and confidentiality, and media in the courtroom, and new provisions were added on immigrant children. Other changes were made in response to the Fostering Connections legislation passed by Congress in These include: Education. The treatment plan must set forth steps to ensure that the child s educational needs are met and, for children age 14 and older, their educational and post-secondary goals. Also, a child s foster care placement must take the educational setting into consideration and efforts must be made to keep the child in his or her own school if reasonable and in the child s best interest. Siblings. Reasonable efforts must be made to keep siblings together, unless contrary to a sibling s safety or well-being. If siblings are not placed together, visitation or other interaction should be provided, again unless this would be contrary to a sibling s safety or well-being. Aging Out. As a child approaches 17, CYFD will work with the child to develop a transition plan based on his or her individualized needs. The plan must be approved by the court at the first hearing after the youth turns 17. At the last hearing before the youth turns 18, the court will conduct a discharge hearing where the court reviews the August Page ix

13 Highlights of the 2011 Handbook plan and ensures that the young person has been provided with his or her family history, educational and medical records, social security card and other information and assistance. Jurisdiction may be extended beyond the child s 18th birthday in some situations. Relative Placements. The department must make reasonable efforts to identify and locate grandparents and other relatives and conduct home studies on any appropriate relative expressing an interest in providing permanency for the child. Adoption Act (Article 5): Provisions were added requiring petitioners for adoption to request search of the putative father registry and file a certificate of search. Open adoption agreements may include contact with siblings. Delinquency Act (Article 2): The Delinquency Act has seen a number of changes, including changes regarding detention, detention hearings, diagnostic evaluations in the community, representation in post-dispositional court proceedings, and sealing of records. Considerations during disposition and in amenability hearings will now include brain development, maturity, trauma history, and disability. In addition, a major shift was made from the concept of parole to one of supervised release. Rule Changes As the 2007 Handbook was going to press, the Children s Court Rules Committee was completing a proposed recompilation of the Children s Court Rules that had been under development for several years. This recompilation was proposed to the Supreme Court and approved effective January 15, Rules were renumbered and changes were made to reflect changes in the law and practice over the last many years. It is essential that judges and attorneys realize that the rules have been renumbered and that many of them have been revised. It is also important to note that the forms in Article 4 of the rules were not included in the recompilation and are still being updated. Several rules and forms have been added or amended independent of the recompilation process. These include a new rule on sibling representation that provides guidance on conflict of interest issues in abuse and neglect cases, as well as a new indigency form for judges to use when determining a respondent s eligibility for appointed counsel. They also include changes to the rule on timelines for adjudication, such that dismissal for failure to timely commence is discretionary and other sanctions are possible. For delinquency cases, changes include new and amended warrant forms and an updated indigency determination form. The rules and forms for consent rules have been revised to make it clear that children do not have to admit the allegations to obtain a decree, and that consent decrees are permitted after adjudication. As with the abuse and neglect rules, the Supreme Court has amended the rule on deadlines for adjudication to make dismissal discretionary and permit other sanctions. Since the last handbook update, the Supreme Court has established a joint committee on rules of procedure which includes representatives of the different rule committees. This Page x August 2011

14 Highlights of the 2011 Handbook committee has developed, and the Supreme Court has adopted, rules on public inspection and sealing of records. Other rules are pending. New Case Law A number of appellate cases have been decided since 2007 in the subject areas covered by the Handbook. These include the following Supreme Court cases: Marlene C. on the findings that must be made at the adjudicatory hearing when an abuse or neglect case in state court is governed by the Indian Child Welfare Act. Bobby Antonio R., or Helen G., on a biological father and whether his consent to an adoption was required when he knew the mother was pregnant but did not register with the putative father registry within ten days of the child s birth or meet the other requirements for an acknowledged father. State v. Jones on the right of the child to an amenability hearing when subject to adult or juvenile sanctions under the Delinquency Act, and whether the child can waive that right. State v. Rudy B. on the constitutionality of the statute that provides that amenability determinations are made by the judge rather than a jury. State v. Mendez on statements made by a child to the SANE nurse and whether they are admissible under an exception to the hearsay rule in a criminal proceeding. State v. Chavez on the crime of negligent child abuse and the effect of filthy living conditions. Cases decided by the Court of Appeals include, for example: Benjamin O on custody upon remand after an adjudication of abuse and neglect is reversed. Benjamin O on abandonment as grounds for termination of parental rights (TPR). Hector C. on neglect and presumptive abandonment as grounds for TPR, and the effect of incarceration. Lance K. on failure to timely file an appeal. Victoria R. and other recent cases on award of guardianship under the Kinship Guardianship Act. State v. Haskins, one of many cases on crimes against children, on persons in positions of authority for the crime of criminal sexual contact of a minor Three chapters of the Handbook have not been considered for revision in the course of the 2011 update. Chapters 35, 36 and 37 on the physical, mental and emotional condition of children and parents and on psychological assessments will be reviewed in the next round of updating. August Page xi

15 Highlights of the 2011 Handbook The Child Protection Best Practice Bulletins, which were included in the 2007 Handbook, are available on-line at or The bulletins are in the process of being revised and new bulletins are being planned. We regret if we have missed any developments that should be reported in the Handbook, and we urge our readers to bring these matters to our attention. As always, of course, we welcome any comments, suggestions or corrections that will improve the book as a resource for judges and participants in abuse and neglect cases. Contact information is provided in the Introduction to the Handbook. The Editors Page xii August 2011

16 Summary of Contents Introduction to the Handbook Highlights of the 2011 Update TABLE OF CONTENTS PART A: OVERVIEW 1. Overview of the Abuse and Neglect Legal System 1.1. The Children's Code 1.2. Children's Court 1.3. Anatomy of an Abuse or Neglect Case Reports and Investigation Petition Custody Hearing Adjudicatory Hearing Dispositional Hearing Initial Judicial Review Hearing Permanency Hearings Permanent Guardianship Termination of Parental Rights Adoption Appellate Proceedings 1.4. Timeline 1.5. Adoption and Safe Families Act 2. Rights of Parents and Child 2.1. Substantive Rights 2.2. Limitations 2.3. Procedural Rights 2.4. Statutory Rights 3. Key Concepts 3.1. Best Interests of the Child 3.2. Reasonable Efforts Reunification Finalizing a Permanency Plan for the Child Aggravated Circumstances 3.3. Permanency Planning 3.4. Concurrent Planning 3.5. Legal Custody and Placement 3.6. Key Principles for Permanency Planning for Children August Page xiii

17 Table of Contents PART B: ROLES AND RESPONSIBILITIES 4. Children s Court Attorney 4.1. Introduction 4.2. Structure 4.3. Filing an Abuse or Neglect Petition 4.4. Representation at Hearings 4.5. Termination of Parental Rights and Permanent Guardianships 4.6. Legal Risk Placement 4.7. Use Immunity and Protective Orders 4.8. Disclosure of Information under Rule Involuntary Placement for Mental Health or Developmental Disabilities Services 5. Respondent s Attorney 5.1. Respondent s Right to Counsel 5.2. Effective Assistance of Counsel Right to Effective Assistance Possible Conflicts of Interest Non-English Speaking Clients Americans with Disabilities Act (ADA) Standard of Review Court s Role in Protecting Respondents Due Process Rights and Assuring Effective Assistance of Counsel 5.3. Duties of Respondent s Attorney 5.4. Performance Standards 5.5. Recommended Readings 6. Guardian ad Litem for Child Under 14 (GAL) 6.1. Introduction 6.2. Role of the GAL 6.3. Appointment 6.4. Primary Responsibilities Reasonable and Appropriate Duties Non-Statutory Activities The GAL in Court 6.5. Additional Responsibilities Mental Health and Developmental Disabilities Residential Placement Decisions Representation on Appeal Retaining Separate Counsel 6.6. Relationship to Others in the Case Relationship to the Child Relationship to Other Parties Relationship to the Court 6.7. Performance Standards 6.8. Recommended Reading Page xiv August 2011

18 Table of Contents 6A. Attorney for Child Age 14 or Older (Youth Attorney) 6A.1. Introduction 6A.2. Role 6A.3. Appointment 6A.4. Specific Powers and Duties 6A.4.1. Representation on Appeal 6A.4.2. Filing TPR Motion 6A.4.3. Retaining Separate Counsel 6A.4.4. Mental Health and Developmental Disabilities Residential Placement Decisions 6A.5. Other Responsibilities 6A.6. Youth Attorney in Court 6A.7. Relationship to Others in the Case 6A.7.1. Relationship to the Child 6A.7.2. Relationship to Other Parties 6A.7.3. Relationship to the Court 6A.8. Performance Standards 6A.9. Recommended Reading 7. Guardian ad Litem for Incompetent or Minor Respondent 7.1. Appointment Rules Case Law 7.2. Responsibilities General Responsibilities Americans with Disabilities Act 8. Children, Youth and Families Department (CYFD) 8.1. Introduction 8.2. Responsibilities Receiving and Investigating Reports of Abuse or Neglect Efforts to Prevent Removal Legal Custodian Working With Parents and the Child Permanency Planning Protective Supervision 8.3. Termination of CYFD s Responsibilities 9. Court-Appointed Special Advocate (CASA) 9.1. Purpose 9.2. Duties and Responsibilities 9.3. Qualifications and Training 9.4. Availability of CASA Programs 10. Citizen Review Board (CRB) Purpose Duties and Responsibilities August Page xv

19 Table of Contents Tasks Review Process Written Reports Composition Qualifications Selection Procedures Statewide Advisory Committee Citizen Review Boards and Court Appointed Special Advocates The Relationship Between CRB and CASA Differences Between CRB and CASA Volunteers 11. Foster Parents Introduction Qualifications and Licensure Family Foster Home Licenses Provisional Licenses for Relative Foster Care Specialized Foster Home Licenses\ Treatment Foster Care Responsibilities of Foster Parents Family Foster Parents Treatment Foster Parents Foster Parents as Members of the Case Management Team Involvement in the Abuse and Neglect Proceeding PART C: CHILD ABUSE AND NEGLECT PROCEEDINGS 12. Commencement of Case Filing of Petition Jurisdiction and Venue Jurisdiction Venue Form and Content of Petition Persons Named as Parties in the Petition Motion for Ex Parte Custody Order Ex Parte Custody Order Appointments Service Petition Ex Parte Custody Order Notice to Relatives Indian Children Confidentiality of Records 13. Custody Hearing Purpose of Hearing Timeline Participants Page xvi August 2011

20 Table of Contents Hearings Closed to Public; Records and Information Confidential Appointment of Counsel Advising Respondents of Rights Conduct of the Hearing General Temporary Custody Reasonable Efforts Examinations and Evaluations Indian Children Stipulations Evidence Findings and Order Checklist 14. Pre-Adjudicatory Hearing Meeting Purpose of the Meeting Timing and Initiation Participants Conduct of the Meeting Proposed Treatment Plan 15. Adjudicatory Hearing Purpose Timeline Day Deadline Extensions of Time Failure to Timely Commence Initiation and Notice Participants Conduct of the Hearing No Right to Jury Trial Making a Record Definitions of Abuse and Neglect Aggravated Circumstances Reasonable Efforts Active Efforts in ICWA Cases Admissions or No Contest Pleas Consent Decrees Use Immunity Evidence Burden of Proof Findings Abuse or Neglect; Aggravated Circumstances Reasonable Efforts Findings Required by ICWA Custody Order August Page xvii

21 Table of Contents Motion for New Hearing Checklist 16. Dispositional Hearing Purpose Timeline Initiation and Notice Participants Issues to be Considered Legal Custody Treatment Plan Reasonable Efforts Predisposition Study and Report Effective Treatment Plan Sibling Placement Placement Preferences for Indian Children Evidence Burden of Proof Findings and Order Findings Required by 32A Reasonable Efforts Custodial Determination Visitation Indian Children Child Support Duration of Judgment Checklist 17. Initial Judicial Review Hearing Purpose Timeline Initiation and Notice Participants Conduct of the Hearing Evidence Findings and Order Undocumented Immigrant Children Reporting Status to the Court Recommendations in Treatment Plan Children s Court Order Applying for Special Immigrant Juvenile Status Transition Plan for Older Youth Transition Plan Discharge Hearing Checklist Page xviii August 2011

22 Table of Contents 18. Pre-Permanency Hearing Meeting Purpose Timing and Initiation Participants Conduct of the Meeting Proposed Permanency Plan Five Possible Plans Agreement, If Possible Substance Abuse Cases Incarceration Cases Older Children 19. Permanency Hearing Purpose of Hearing Timeline Initiation and Notice Participants Reports Evidence Burden of Proof; Rebuttable Presumption Eliminated The Permanency Plan Permanency Plans Reasonable Efforts to Finalize Permanency Plan Reunification, Adopting a Transition Home Plan Reasonable Efforts to Locate Relatives Out-of-State Placement Considerations Transition Planning for Older Youth Transition Plan Discharge Hearing Undocumented Immigrant Children Future Permanency Determinations Permanency Review Hearings Hearing on Permanency Plan Every 12 Months Checklist 20. Permanency Review Hearing Purpose Timeline Initiation and Notice Conduct of the Hearing Need for Action Hearing When Plan Is Reunification Hearing When Plan Is Not Reunification Evidence Reasonable Efforts to Finalize Plan Transition Planning for Older Youth August Page xix

23 Table of Contents Checklist 21. Subsequent Judicial Review Hearing Purpose Timeline Initiation and Notice Participants Conduct of the Hearing Compliance with Treatment Plan Status of the Child Transition Planning for Older Youth Indian Children Undocumented Immigrant Children Child Support Evidence Findings and Order Findings of Fact Order Duration of Dispositional Order Continuation of Jurisdiction Past Age Checklist 22. Termination of Parental Rights Introduction Effect of Parental Rights Termination Due Process Concerns Constraints under the Children s Code and ASFA Voluntary Termination of Parental Rights (Relinquishment): Procedure Overview Counseling Required Relinquishment Form Execution of the Relinquishment Finality Voluntary Termination of Parental Rights (Relinquishment): Special Circumstances Minor Parents Parents of Indian Children Conditions on Relinquishments Involuntary Termination of Parental Rights: Grounds Overview Abandonment Failure to Ameliorate the Causes and Conditions of Abuse or Neglect Disintegration of the Parent-Child Relationship and Development of a New Psychological Parent-Child Relationship Between the Child and Caretaker Involuntary Termination of Parental Rights: Procedure Overview Page xx August 2011

24 Table of Contents Initiation of TPR TPR Motion Requirements Notice and Service Right to Counsel Timing of the TPR Hearing Conduct of the TPR Hearing Right of the Parent to Participate in the TPR Hearing Propriety of Summary Judgment Burden of Proof on TPR Motions Order Terminating Parental Rights Effect of a TPR Judgment Attorney s Fees Denial of TPR Checklist: Voluntary Termination of Parental Rights (Relinquishment) Checklist: Involuntary Termination of Parental Rights (TPR) 23. Permanent Guardianship Hearing Purpose Timeline Initiation Service and Notice Issues to be Considered Stipulations Contested Case Evidence Burden of Proof Findings and Order Periodic Judicial Review Revocation of Order Distinguishing Guardianship Under Probate Code and Kinship Guardianship Act Probate Code Kinship Guardianship Act Checklist 24. Appeals Overview Appeals as of Right Appeals by Leave Time Requirements Filing an Appeal as of Right Filing an Interlocutory Appeal Filing the Docketing Statement Deadlines for the Summary Calendar Deadlines for the General Calendar Filing the Transcript of Proceedings Audio Recorded Transcripts Other Transcripts August Page xxi

25 Table of Contents Priority of Cases Standard of Review Stay of Proceedings Jurisdiction During an Appeal Children s Court Jurisdiction During Appeal Appellate Jurisdiction After Children s Court Dismissal Children s Court Jurisdiction After Appellate Reversal Preserving Error for Appeal PART D: EVIDENTIARY AND PROCEDURAL ISSUES 25. Parties; Intervention Original Parties to the Proceeding Intervention as of Right Statute Rule Permissive Intervention Statute Rule Non-Party Participants Foster Parents, Preadoptive Parents, Relatives Providing Care CASA and CRB Representatives 26. Discovery and Disclosure Overview Discovery Rules Scope of Discovery Forms of Discovery; Procedure Protective Orders Disclosure Rules Disclosure by Parties Required Disclosure by CYFD under Rule Disclosure by Respondent under Rule Disclosure by Child s GAL or Youth Attorney under Rule Continuing Duty to Disclose Sanctions for Failure to Disclose Court-Ordered Diagnostic Examinations and Evaluations Discovery in Practice 27. Evidence Competency of a Minor to Testify The Law Procedure for Determining Testimonial Competence Use of Psychological Testimony or Reports Regarding Competence Alternatives for Presenting Child Testimony Videotape: Criminal Proceedings Videotape: Civil Proceedings Page xxii August 2011

26 Table of Contents Uniform Child Witness Protective Measures Act Rules of Evidence and Application to Child Witnesses Use of Leading Questions on Direct Examination Hearsay Privileges and Evidentiary Immunities Privileges Use Immunity 28. Court Orders During Pendency of Proceeding Introduction Ex Parte Custody Orders Temporary Restraining Orders Change of Placement Contempt of Court Findings and Remedies As Appropriate Equitable Powers of the Court 29. Case Management One Family-One Judge Concept Purpose Coordination of Cases Dockets and Scheduling Urgency of Resolution Regular Dockets Advance Calendaring Special Masters Mediation Overview of Mediation in Abuse and Neglect Cases Abuse and Neglect Mediation in New Mexico How the Children s Court Mediation Program Works Elements of a Successful Program References PART E: RELATED PROCEEDINGS 30. Adoption Introduction Adoption in an Abuse or Neglect Case When Adoption Can Be Granted in Abuse or Neglect Case Compliance with the Adoption Act Effective Date of Adoption Proceedings Under the Adoption Act Confidentiality of Records Consent and Relinquishment Involuntary Termination of Parental Rights Placement for Adoption Fingerprinting and Criminal History Records Check August Page xxiii

27 Table of Contents Petition for Adoption Post-Placement Reports Hearing on Adoption Petition Adoption Decree Revoking a Decree of Adoption Special Considerations Adoption of Indian Children Open Adoptions Interstate Compact on the Placement of Children Intercountry Adoptions Reproductive Alternatives Subsidized Adoptions Adoption of Children with Special Needs Source of Funds for Subsidized Adoptions 30.6 Useful Checklists 30A. Kinship Guardianship 30A.1. Purpose of Kinship Guardianship Act 30A.2. Proceeding to Appoint Guardian 30A.2.1. Petition 30A.2.2. Appointment 30A.2.3. Rights and Duties 30A.2.4. Revocation 30A.2.5 Forms Approved by the Supreme Court 30A.3. Caregiver s Authorization Affidavit 30A.3.1. Purpose and Effect 30A.3.2. Form of Affidavit 31. Families in Need of Court-Ordered Services Purpose Initiation of Proceedings Protective Custody Obtaining Custody of the Child Place of Custody; Indian Placement Preferences Protective Custody Hearings Change in Placement Adjudication and Disposition Timing of the Adjudicatory Hearing Conduct of the Hearing; Confidentiality Evidence; Findings Required Dispositional Hearing Time Limits on Dispositional Judgments Periodic Judicial Review Confidentiality 32. Mental Health and Developmental Disabilities Purpose Page xxiv August 2011

28 Table of Contents Relationship to Abuse or Neglect Proceeding Definitions Rights Regardless of Setting Consent Out of Home Placement Process for Placement in Residential Treatment or Habilitation Program Voluntary Placement Children Under Age Fourteen Children Age Fourteen or Older Involuntary Placement Forms 33. Juvenile Delinquency Purpose of the Delinquency Act Relationship between Delinquency and Abuse or Neglect Delinquent Children Preliminary Inquiry: Informal Action by Juvenile Probation Officer Formal Actions Commencement of Case Detention Hearing Competency Adjudicatory Hearing Time Waivers Consent Decrees Dispositional Hearing Revocation of Probation Appeals Motor Vehicle Cases Confidentiality of Juvenile Records Sealing of Records 34. Criminal Abuse and Neglect Proceedings Reporting Requirement Statute of Limitations Child Abuse Statutory Elements Definitions Relating to Child Abuse Case Law on Child Abuse Child Abandonment Sexual Abuse Criminal Sexual Penetration Criminal Sexual Contact of a Minor Aggravated Indecent Exposure Incest Sexual Exploitation of Children Child Solicitation by Electronic Communication Device Evidence August Page xxv

29 Table of Contents Abuse and Neglect Reports Limitations of Privileged Communications Information from Civil Abuse or Neglect Case Videotaped Depositions of Alleged Child Victims Psychological Evaluations of Victims Expert Witness Testimony Confrontation Clause and Hearsay Prior Acts and Convictions Rule : Rape Shield Laws and Right of Confrontation Case Process Usual Steps in Prosecution Victim s Rights Sentencing Issues PART F: MEDICAL, PSYCHOLOGICAL AND SOCIAL ISSUES 35. Physical, Mental and Emotional Condition of Child Developmental Considerations Stages of Development Adaptation Importance of Attachment Prevalence and "The Neglect of Neglect" Statistics Nature of Neglect Developmental Effects of Maltreatment Birth to 10 months to 24 Months to 4 Years to 6 Years to 11 Years to 21 Years Adulthood Risk Factors for Abuse and Neglect Parental Risk Factors Child Risk Factors Medical Considerations Psychological Considerations Importance of Timeliness References Authors of Source Material Recommended Reading Other Recommended Sources 36. Physical, Mental and Emotional Condition of Parents Introduction Domestic Violence Domestic Violence and Children Page xxvi August 2011

30 Table of Contents Custody, Visitation and Parental Rights Suggestions for Consideration Substance Abuse Critical Factors Impact on Caretaker Behavior Effect on the Social Environment Abuse and Neglect Suffered by Substance Abuser as a Child Suggestions for Consideration Mental Illness Effect on Caretaking Function Special Challenges Faced by Parent in Treatment Suggestions for Consideration Physical Disabilities Discriminatory Treatment Suggestions for Consideration Making a Comprehensive Assessment References 37. Psychological Assessments Types of Assessments Psychological Evaluation with a Specific Question Neuropsychological Assessment Bonding or Interactional Study Custody Evaluation Psychosocial, Pre-Placement or Home Study Report References PART G: FEDERAL AND TRIBAL CONSIDERATIONS 38. Federal Laws Affecting State Proceedings Introduction Child Abuse Prevention and Treatment Act Adoption Assistance and Child Welfare Act Adoption and Safe Families Act Foster Care Independence Act Promoting Safe and Stable Families Amendments of Safe and Timely Interstate Placement of Foster Children Act of Child and Family Services Improvement Act of Fostering Connections to Success and Increasing Adoptions Act Multiethnic Placement Act Court Improvement Program Child and Family Services Reviews 39. Indian Children and ICWA Overview of Indian Child Welfare Act (ICWA) Purpose Summary of Requirements August Page xxvii

31 Table of Contents ICWA and the Children's Code Specific ICWA Provisions Scope Applicability Exceptions Jurisdiction Notice Requirements Intervention Right to Counsel Services and Programs for an Indian Family Evidentiary Requirements Voluntary Foster Care or TPR (Relinquishment) Full Faith and Credit ICWA Placement Preferences Foster Care Preferences Adoption Preferences Tribal Role in Preferences Parent or Child Preferences ICWA and Title IV-E Case Law Federal Cases New Mexico Cases Additional References BIA Guidelines for State Courts: Indian Child Custody Proceedings A. Acronyms B. Glossary C. Table of Statutes D. Table of Cases APPENDICES Page xxviii August 2011

32 CHAPTER 1 OVERVIEW OF THE ABUSE AND NEGLECT LEGAL SYSTEM This chapter provides an overview of: The Children s Code. Children s Court. Stages and proceedings in an abuse or neglect case. Required timeline in an abuse or neglect case. 1.1 The Children s Code The state, in its role as parens patriae (protector of vulnerable individuals), has a compelling interest in the welfare of children, particularly when their health and safety may be in jeopardy. This interest is of such significance that it can justify government intrusion into the constitutionally protected autonomy of the family. The Children s Code is the result of the legislature s effort to balance the interests of the state and families. The primary purpose of the Code is the protection of the safety and welfare of children. The law creates a range of possible state actions when abuse or neglect is suspected or confirmed, from emergency intervention to permanent placement of the child outside the home. As part of the Children s Code, the Abuse and Neglect Act authorizes the state to act in these cases through the Children, Youth and Families Department (CYFD). CYFD s decisionmaking is based on a consensus model involving clinical social workers and children s court attorneys, all of whom are trained and practice exclusively in the area of child protective services. In addition to these participants, as well as the attorneys for the parties and the child s guardian ad litem, the Code provides for oversight by Citizen Review Boards (CRB) and the assistance of volunteers through the Court Appointed Special Advocate (CASA) program. Extended family members and substitute caregivers also may contribute both in and out of the courtroom. The first goal of every proceeding under the Act is to protect the child s health and safety, then to preserve the unity of the family. This involves a comprehensive assessment of family strengths and needs, not in the abstract or according to a prescriptive set of values, but in light of the individual requirements and relationships of the particular child. If temporary August Page 1-1