Legal Safeguards for Children In New Mexico

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1 Legal Safeguards for Children In New Mexico Presented by Tara Ford and Grace Spulak Pegasus Legal Services for Children

2 Safe and Stable Homes Parent Support Kinship Guardianship Act Abuse and Neglect Act Emancipation Immigration

3 Working with Families Families know a lot about their children, even when they are struggling to support them. Families may have a lot to learn about their children and may have many professionals in their lives. Families may feel like professionals are blaming them for their child s problems; that they are not doing their job (and sometimes professionals do mistakenly blame families).

4 Family Preservation NMSA It is the policy of the state that its laws and programs shall: A. support intact, functional families and promote each family's ability and responsibility to raise its children; B. strengthen families in crisis and at risk of losing their children, so that children can remain safely in their own homes when their homes are safe environments and in their communities; C. promote the creation of well-paying, stable jobs so that families can provide for their basic needs, including health, education, food, clothing and shelter; and D. help halt the breakup of the nuclear family, stabilize neighborhoods and strengthen communities.

5 Domestic Relations A. In any case in which a judgment or decree will be entered awarding the custody of a minor, the district court shall, if the minor is under the age of fourteen, determine custody in accordance with the best interests of the child... B. If the minor is fourteen years of age or older, the court shall consider the desires of the minor as to with whom he wishes to live before awarding custody of such minor. C. Whenever testimony is taken from the minor concerning his choice of custodian, the court shall hold a private hearing in his chambers...

6 Kinship care The full-time care, nurturing and protection of children by relatives, m embers of their tribes or clans, godparents, stepparents, or any adult who has a kinship bond with a child. Child Welfare League of America

7 Kinship Care Informal: Kinship caregiver has no legal authority or only power of attorney or caregiver s authorization affidavit. Formal: Kinship caregiver has legal guardianship or custody of the child. Institutional: The state has legal custody and the child is placed in the home of a relative.

8 Informal Kinship Care Parent can remove child at any time without notice Police and Protective Services will not prevent removal unless there is recent evidence of significant abuse or neglect.

9 #1 Problem Identified by Informal Kinship Caregivers: Lack of legal authority They cannot prevent parents from removing the child

10 Advantages of non-institutional kinship care Preservation of family, community and cultural ties Avoidance of trauma resulting from foster care with strangers Less likely to have multiple placements

11 How do children end up in kinship care? Parents place children with kin because they are unable or unwilling to take care of the children themselves. CYFD worker suggests placement with kin after a referral for abuse or neglect Family members intervene and remove child or prevent parent from removing child from home.

12 Reasons parents are unable to care for their children: Substance abuse Incarceration Mental illness

13 Legal tools for kinship caregivers: Power of Attorney Caregiver s authorization affidavit Kinship Guardianship

14 Kinship Guardianship Act Delegation of authority over minors (Power of attorney) Probate Code Must be signed by a parent before a notary. Can limit what authority is delegated. Must be renewed every six months. Revocable at parent s will.

15 Kinship Guardianship Act Caregiver s Authorization Affidavit Domestic Relations Code 40-10B-15 Used by a caregiver with whom a child is living for any amount of time. Valid for one year. Protects person who provides services pursuant to a Caregiver s Authorization Affidavit from criminal or civil liability. Must be signed by the caregiver before a notary.

16 Kinship Guardianship Act Guardianship in New Mexico Guardianship of Minors Probate Code (for use in case of parental death or serious medical incapacity) Permanent Guardianship Children s Code Kinship Guardianship Domestic Relations Code

17 Kinship Guardianship Act 40-10B-3. Definitions "kinship" means the relationship that exists between a child and a relative of the child, a godparent, a member of the child's tribe or clan or an adult with whom the child has a significant bond;

18 KINSHIP GUARDIANSHIP A guardian may be appointed if: (1) a parent of the child has consented in writing or (2) parental rights in regard to the child have been terminated or suspended by prior court order; or

19 (3) the child has resided with the petitioner without the parent for a period of ninety days or more immediately preceding the date the petition is filed and a parent having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance and supervision for the child (4) OR there are extraordinary circumstances

20 Kinship Guardianship Act 40-10B-13. Rights and duties of guardian. A. A guardian has the legal rights and duties of a parent except the right to consent to adoption of the child and 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.

21 Kinship Guardianship Act Revocation of guardianship. Any person, including a child who has reached his fourteenth birthday, may move for revocation of a guardianship. Must prove that circumstances have changed and revocation is in the best interests of the child

22 Children do not constitute anyone's property: they are neither the property of their parents nor even of society. They belong only to their own future freedom. Mikhail Bakunin

23 Guardianship Legal Helpline

24 Overview of Child Welfare First juvenile court established in 1899 Children s rights: from property to protection Court was kind and just parent 1962 Publication of The Battered Child by C. Henry Kemp, M.D In Re Gault: children have right to counsel and due process in criminal cases

25 1967 First laws mandating reporting of child abuse 1974 Child Abuse Prevention and Treatment Act (CAPTA) 1980 Adoption Assistance and Child Welfare Act 1997 Adoption and Safe Families Act

26 Adoption & Safe Families Act 1997 Law requires state to move children in foster care into permanent homes as quickly as possible Immediate planning for reunification Periodic permanency and review hearings If child has been in foster care 15 of last 22 months state must initiate TPR

27 Abuse/Neglect Timelines: Initiation of Child Abuse/Neglect Case Referral to Statewide Central Intake (SCI) Case is screened out as inappropriate Case is screened in for investigation Substantiated Unsubstantiated Legal Custody Legal & Physical Custody Voluntary Services

28 Indian Child Welfare Act Enacted in 1978 because the data showed a disproportionate rate of out placement of Indian children Depending on the state, the rates ranged from 12 to 1 to 6 to 1 when the Native percentage of population was less than 1%. Indian children lost their connection to their culture and people.

29 Indian Child Welfare Act Requirements of ICWA: Tribal court has exclusive jurisdiction if child is domiciled on the reservation; Tribe must be notified in writing; Standard of proof at TPR is beyond a reasonable doubt; Tribe can intervene and remove case to tribal court; Tribe can intervene and become an active participant in case.

30 Family Contact Youth who have been in foster care say: They wanted more contact with their parents and other family members They wanted to live in the same home with their siblings or, if not possible then They wanted to see their siblings regularly Contact with family is extremely important

31 Permanency Plan Priorities Reunification Adoption Guardianship Placement w/ Fit & Willing Relative Planned Permanent Living Arrangement

32 Emancipation The term emancipation refers to the state of living independently from one s parents. A minor can ask a court to declare that he or she is an emancipated minor. Minors inquiring about emancipation must already be living and functioning as an emancipated minor before they go into court.

33 Emancipation Statutory Requirements (32A-21-2 et seq): Emancipation by Declaration of a Court: You must be - 16 years or older Willingly living separate and apart from parents or guardian Managing own financial affairs Emancipation is in their best interests

34 Effect of Emancipation of a minor: What changes: An Emancipated Minor May - No longer subject to control by their parent or guardian No longer entitled to support from their parent or guard. Able to enter in enforceable contracts (e.g. lease an apt.)

35 What stays the same: An Emancipated Minor - Still needs permission to marry Is still treated as a juvenile by the courts Still cannot drink or smoke Still cannot get a driver s license any sooner Is covered by statutory rape laws

36 Emancipation Emancipated Minors are eligible for the same benefits as unemancipated minors.

37 Emancipation Statutory Requirements (32A-21-2 et seq): Three routes to emancipation Valid marriage (parental consent required) Active duty armed forces (parental consent required) Declaration by a court

38 Immigration Special Immigrant Juvenile Status who has been declared dependent on a juvenile who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant s parents is not viable due to abuse parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; and for whom it has been determined in administrative or judicial proceedings that it would not be in the alien s best interest to be returned to the alien best interest to be returned to the alien s or parent s previous country of nationality or country of last habitual residence. *Information from the Immigrant Legal Resource Center

39 Immigration Deferred Action for Childhood Arrivals (DACA) A person may qualify for deferred action if he or she: - was under the age of 31 as of June 15, 2012; - came to the United States under the age of 16; - has continuously resided in the United States since June 15, 2007, up to the present time (only brief, casual, and innocent absences from the United States);

40 DACA - is currently in school, has graduated from high school, has obtained a certificate of completion from high school, has obtained a General Education Development (GED) certificate, or is an honorably discharged veteran of the U.S. Coast Guard or U.S. Armed Forces; And -has not been convicted of a felony offense, a significant misdemeanor offense, three or more non significant misdemeanor offenses, or otherwise pose a threat to national security or public safety.

41 Youth Voice Access to Services Access to School

42 NM Law Addressing Children s Ability to Consent to Services. Reproductive Health Care Mental Health Care Medically Necessary Care for 14+ Homeless Youth and Youth Who Are Parents End of Life Decisions

43 Confidentiality Right to control access to health care and mental health care information. Requirement on health care provider not to release information about the patient except as allowed by law. Complicated concept as applied to children. Services provided by school district employees to students require separate analysis.

44 Duty to Report Abuse and Neglect Every person, including but not limited to... a schoolteacher or a school official or social worker acting in an official capacity who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately. NMSA 32A-4-3. CHANGE IN CODE: Must personally report (meant to address schools that required report to come through principal).

45 School Laws Relate to Children No Child Left Behind (federal law governing public schools, focus on teacher qualifications, research based teaching strategies, and accountability). Individuals with Disabilities Education Act (federal law governing special education) Section 504 and the Americans with Disabilities Act (prohibiting discrimination on the basis of disability) McKinney-Vento Act (provides protection to homeless students)

46 NM School laws NMSA Chapter 22: The New Mexico Public School Code NMAC Title VI: The New Mexico Administrative Code (implementing the Public School Code, e.g., state educational standards, open enrollment, requirement for district bullying policies)

47 Practical Tips Be straightforward with parents, they are your best allies for ensuring a child s success. Be straightforward with children and listen to them, they have insight into what they need and what will work for them. Understand that federal and states laws exist to protect children and to make sure they have access to services they need. Learn about the legal resources available to families.