The Role of the Parties and
The Phases of the Case
Who, What, Where, When,
Why and How
The Players
Children/Youth
Judge
Parents or other caretakers
Guardian ad Litem for incompetent
party
Case Workers
Children’s Court Attorney
Respondent’s Attorney
(Parent’s or caretaker’s
attorney)
Foster parents (includes treatment
foster parents)
CRB
Guardian ad Litem
Providers (doctors, therapists,
treatment coordinators,
psychiatrists, psychologists, school
personnel, juvenile system
personnel, etc.)
Youth Attorney
Adoptive parents & counsel
Tribal counsel and Case
Workers
CASA
2
General Duties - CCA

CCA advises and represents the Department (case
workers) both generally and specifically before filing
and during the process of a legal case. Always has
the Burden of Proof, unless a specific motion is
filed by another party. Provides notice to parties,
tribe, CASA and fosters.

CCA must deal with parents in scrupulous fairness
and has a constitutional duty to ensure a parent’s
due process rights are protected. Ronald A., 110
N.M. 454 (1990) and Maria C., 136 N.M. 53 (2004).
3
General Duties - RA

RA counsels, then represents, the parents or custodians
throughout the legal case.

Should be appointed at inception. § 32A-4-10 with
indigency determination made at Custody Hrg. (may be
appointed if, in court’s discretion, appointment is
required “in the interest of justice.”)

Makes reasonable efforts to locate clients and facilitate
attendance or meaningful participation at proceedings.

Develops and presents evidence.
See Maria C.,136 N.M. 53 (2004) and Performance
Standards.
4
General Duties – Guardian ad Litem and
Attorney for Teen (must have appropriate
experience)

Inform Court of child's declared position at every
hearing

Actively participate in trials and hearings (call, examine,
and cross-examine witnesses; introduce evidence)

Meet with and interview child before every hearing

Communicate with other providers, review reports, etc.

Represent and protect child’s cultural needs

May retain counsel if child is victim of a tort.
5
Unique Duties of GaL and
Attorney for Teen
GaL ONLY Represent and protect the best interest of the child
under 14
 Unless other counsel appointed, serve as GAL in
MH Residential Placement Decisions
 Attorney for Teen ONLY Represent child's declared position at every hearing
 Unless other counsel appointed, may serve as
attorney in MH Residential Placement Decisions

6
General Duties - Judge





The District Court is charged with protecting a parent’s
due process rights. Maria C.,136 N.M. 53 (2004).
Review admissible information
Make decisions that protect the best interest of the
child
Verify ICWA placement preferences and determine
whether requisite proof established
Assures the GAL or Attorney for Teen “zealously
represents the child or her best interest, depending on
age.” 32A-4-10(F)
7
Overarching Themes
Timeliness. ASFA has strict timelines
Continuity. The Code recommends a single judge hear all proceedings
involving the child or family.
Remediation. not punitive but remedial with an emphasis on cooperation
and rehabilitation instead of conflict.
Safety, Permanency, and Well Being.
Every child has a right to a family. Every effort towards permanency should
have this fundamental proposition as its basis.
Permanency must consider the child’s relationships with siblings, relatives and
other significant adults, as well as tribal or other cultural connections.
Throughout the case, the primary emphasis should always remain on meeting
the needs of the child.
At every stage in the proceedings the court addresses the reasonableness of
efforts made either to reunite the family or to implement a permanent
alternative placement for the child.
8
ASFA Timelines
Assume that decreasing the time to permanency is in the
Best Interest of the Child.
Have been incorporated into the Code.
Can be extremely challenging, especially in cases involving
substance abuse.
Failure to comply with these timelines risks substantial
federal funding.
9
ASFA CONCEPTS
As identified in NM’s recent program
improvement plans (PIP):

Decreasing foster care re-entries

Maintaining connections

Placement stability

Independent living for teens
10
Entry into Foster Care
First: Try to avoid placing in foster care.
Referral made & assigned a priority
Investigation
In-home services, etc.
Child placed on a 48 hour hold by peace officers
Time used to consult with family in a Team Decision
making meeting (TDM)
Filing petition requires CCA to decide that filing is in the
best interest of the child.
Ex parte custody order to be served on respondent.
11
Investigation of Allegations and Making
Reasonable Efforts to Keep the Child in the Home
Case Worker ( with some input from CCA)

Makes home visits

Contacts collateral sources

Determines if alleged event/circumstance occurred

Determines whether there has been abuse or neglect

Determines whether there is immediate or ongoing risk
to child

Makes suggestions to the family

Refers the family to in-home services UNLESS risk of
immediate harm or serious injury
12
Making Placement Decisions Before
Decision to File
Case Worker.
 Attempts
to reach consensus on the best placement
for a child in a decision-making meeting with the
family, supervisor, CCA and other providers. If no
agreement, Department makes placement decision.
 Staffs
case as to alternatives to removal and what
reasonable efforts are required to prevent such
13
Looking For Missing Parents, Identifying
Relatives, Identifying Indian Children &
Contacting Tribes
Case Worker.





Asks parents for possible placement options
Directs missing parent search (centralized computer search
available).
Gathers necessary information to determine:
 residence, domicile, identity of both parents, and Indian
Child status
Communicates with Tribe
If an Indian Child, CCA provides notice to tribe and/or the
Dept. of the Interior, as required by ICWA. §32A-4-6(C).
14
Decision to File
CCA.
In
a pre-removal and/or pre-filing staffing provides
advice to the Case Worker, then reviews affidavit and
drafts pleadings. Must endorse on petition that filing is in
child’s best interest. §32A-4-15.
Judge or Hearing Officer.
Once the case is filed,
the Judge:
Signs
orders of appointment for counsel, and if
probable cause exists that child is abused or neglected is
established and that custody under §32A-4-16 is necessary,
then signs ex parte custody order.
15
Service of Petition and Related
Documents
CYFD must effect service of the summons, petition, and
related orders and notices:
 By
personal service upon:
The Respondent, and
The
Child’s GAL or YA.
The summons must clearly state that TPR could result.
If a parent has not been named as a party, that parent
shall be served the petition AND a notice that the
parent may intervene and request custody.
16
The Custody Hearing
Why. To determine who will have legal custody of the child
pending the adjudicatory hearing.
 At
this stage the child’s need for protection
predominates, but no binding determination or remedy
can be ordered other than removal of the child from the
dangerous condition.
 Almost always the ultimate objective is for the child to
return home safely.
When. Within 10 working days of the filing of the petition.
 CYFD
is responsible for requesting a setting and
notifying the parties.
17
The Custody Hearing, cont.
Who. Child, child’s parents/guardians/custodians, and attorneys.
A child under 14 may be excluded if the court finds exclusion
is in the child’s best interest.
 A child who is 14 or older may be excluded if the court
makes a finding that there is a compelling reason to exclude
the child and states the factual basis on the record.
Other Details:


Formal Rules of Evidence do not apply.

All abuse and neglect hearings are closed to the public.
Records and information are confidential.

18
Probable Cause
§ 32A-4-18(C), Rule 10-303(C)
The court must determine whether probable cause exists to
believe that:





the child is suffering from an illness or injury, and the parent,
guardian or custodian is not providing adequate care; or
the child is in immediate danger from his or her surroundings
and removal is necessary for the child’s safety or well-being; or
the child will be subject to injury by others if not placed in the
custody of the department; or
The child has been abandoned by his or her parent, guardian or
custodian; or
the parent, guardian or custodian is not able or willing to provide
adequate supervision and care.
19
NEW in 2009!
Custody: No Probable Cause
§32A-4-18(F)
If NO probable cause, the Court must:
(1) retain jurisdiction and, unless the
court permits otherwise, order the respondent and child to
remain in the court’s jurisdiction pending the adjudication;
(2) return legal custody to the child's parent, guardian or
custodian with conditions to provide for the child’s safety
and well-being; and
(3) order the child's parent, guardian or custodian to allow the
child necessary contact with the child's GAL or attorney.
20
Custody: Probable Cause
§32A-4-18
If probable cause, the Court must award legal custody of the
child pending the adjudicatory hearing to either:


The parent, guardian, or custodian with conditions, such as
protective supervision, or
CYFD.
 If the Court awards legal custody to CYFD, CYFD has
discretion to decide whether Child should remain in the home
or be placed in substitute care.
 If
CYFD decides that the child should remain in the home, it
decides what conditions will apply.
21
Custody Hearing (10 day)
CCA.
 Provides
reasonable notice to parties.
 Has burden to show probable cause if:
 inadequate
care,
 with or without an injury or illness,
 immediate danger,
 injury by others, or
 abandonment. §32A-4-18.
 Presents
basic assessment plan
 32A-4-12 May apply for Protective Order/Use
Immunity for assessment or treatment
Case Worker. Primary witness.
22
Custody Hearing, cont.
RA. §32A-4-10(B).

Appointed at filing of case with adequate time to:
 review


paperwork, and meet with and advise client before
custody hearing.
If parent incarcerated, clarifies that transport order has been
entered, or files such.
Denies allegations. (Might stipulate to probable cause.)
GAL and/or Atty for Teen. §32A-4-10(C).
 Appointed at filing of case with adequate time to:
 review

paperwork, meet with and advise client before
custody hearing.
Arranges to have child at court, if appropriate.
23
Custody Hearing, cont.
Judge.
 Advises
10(G).
respondents of rights and allegations. §32A-4-
 Decides
whether probable cause exists. §32A-4-18.
 Determines legal custody, visitation plan, and
assessments.
 Assures the GAL or YA “zealously represents the child”
or her best interest, depending on age. §32A-4-10(F).
May schedule pre-adjudication mediation.
 May rule on CCA’s request for Use Immunity.

24
After the Custody Hearing
The CYFD Case Worker conducts a psychosocial
assessment of family functioning, then develops
a treatment plan to address:
the reasons the child came into custody, and
 the changes the parent, guardian or custodian
needs to make to correct the condition.

25
Pre-adjudicatory Hearing Meeting
Mandatory by statute. 32A-4-19(B)
Not a court proceeding.
In practice, many trials are avoided as a result of
the mandatory pre-adjudicatory meeting, where
the respondent may decide to enter admissions
either directly or in the form of a plea of no
contest.
Mediation may be substituted.
26
Pre-Adjudication/Mediation
§32A-4-19
CCA.


Provides legal advice and support to the permanency
placement worker before and during meeting
Makes plea offer and negotiates with other counsel
Permanency Planning Worker/PPW.

Has developed a proposed treatment plan based on:
 identified needs and strengths
 reasons
for removal
 initial
interviews and/or psychosocial evaluation
completed as part of assessment plan

Has proposed treatment plan available to discuss at meeting
27
Pre-Adjudication/Mediation, cont.
GAL and YA.
with client before and independently to
explore child’s position (if any) on legal case and
 Meets
treatment needs
 Determines,
discusses and arranges client’s
attendance at the Meeting as appropriate.
 Presents
child’s position on legal case and treatment
needs
28
Pre-Adjudication/Mediation, cont.
Respondent/RA.
 Meets
with client before the meeting.
 Explores
client’s treatment needs independently of
the department based on client’s expressed needs.
 Takes
directions and counsels client on going to trial
or entering no contest plea.
Judge.
A
signed order for mediation helps preserve the
confidentiality of the process.
29
The Adjudicatory Hearing (may be
separate from Disposition)
Why. To determine:


whether the child is abused or neglected, and
whether aggravated circumstances exist, if alleged
 Is
a trial on the merits of the allegations in the petition.
(If new factual allegations arise, an amended petition is required)
Who. Parties, their attorneys, and witnesses.

A child under 14 may be excluded if the court finds exclusion is
in the child’s best interest.

A child who is 14 or older may be excluded only if the court
makes a finding of a compelling reason to exclude and states the
factual basis on the record.
30
Commencing the
Adjudicatory Hearing
The Court must commence the adjudication
within 60 days of the latest of:
 service
 the
of the petition on the respondent,
termination of any diversion agreement;
 the
filing of an order declaring a mistrial or a new
trial;
 The
filing in the district court of the mandate or
order disposing of an appeal.
31
Extensions of Time to Commence the
Adjudicatory Hearing
Rule 10-320(C)
Extensions may be granted for good cause shown
by:
 the
Children’s Court judge, provided that the
aggregate of all extensions shall not exceed 30 days;
or
 the
New Mexico Supreme Court. When granted by
the Supreme Court, there is no 30-day limitation, but
the Court will fix the time limit for commencing the
adjudication.
32
Failure to Timely Commence The
Adjudicatory Hearing
§ 32A-4-19: If the adjudicatory hearing is not timely
commenced, the petition SHALL be dismissed with
prejudice.
New Rule 10-343: If the adjudicatory hearing is not timely
commenced, the petition MAY be dismissed with
prejudice OR the court may consider other sanctions as
appropriate.


“Commence and continue”
Despite dismissal, CYFD can still file another petition based on
additional investigation.
33
Burdens of Proof for Adjudication
CYFD bears the burden of proving abuse or neglect and
aggravated circumstances, if alleged.

Failure to meet the Burden of Proof: If CYFD does not
produce evidence to meet its burden, the child must be
returned to the custody of the respondent and the case
dismissed.
Burden of Proof. Clear and convincing evidence.
Burden of Proof for an Indian Child. Evidence beyond a
reasonable doubt.
The Rules of Evidence apply.
34
Adjudication & Disposition
§§32A-4-20 through -22
CCA.

Notice of Disclosure of required information (including
reports at least 15 days before adjudication). Rule 10308(A)(3)

Notice to parties, fosters and tribe

Subpoenas/calls witnesses

Presents Dept’s position and/or agreed upon legal basis for
no contest plea

Requests findings, including findings required by ICWA

Drafts judgment
35
Adjudication & Disposition, cont.
Investigator and PPW.
Are both witnesses and the Department’s
clients
 Send proposed findings of fact, report and
treatment plan to counsel 5 days before
disposition. §32A-4-21

36
Adjudication & Disposition, cont.
RA.







Reviews and ensures that report, findings of fact and
treatment plan are accurate and best for client
Develops case with client
Subpoenas witnesses
Cross-examines witnesses
If needed, may consult with client’s criminal defense attorney
10-306.1 Requires disclosure of court ordered diagnostic
examinations and evaluations to the parties (but not the
court) at least 5 days before the adjudicatory hearing
10-321(A) requires predisposition reports 5 days before
disposition
37
Adjudication & Disposition, cont.
GAL.
 Presents
child’s position
 Presents GAL’s opinion of the child’s best interest
 Child may be present unless best interest to exclude
YA.
 Presents
child’s position
 Arranges client’s presence unless there are
compelling reasons to exclude
38
Adjudication & Disposition, cont.
Judge.
 Determines
whether abuse or neglect was
proved by clear and convincing evidence
 If burden of proving abuse or neglect is NOT
met, Judge dismisses case and returns child to
parent, guardian, custodian and may refer to
Dept for services,
 Enters order for legal custody.
39
Findings of Abuse or Neglect
A finding of abuse or neglect:
results in a final, appealable order, and
 establishes the factual basis for everything that follows.

When the court makes a finding of abuse or neglect, it retains
jurisdiction to:
award custody of the child, and
 order of a treatment plan to mitigate and correct the
conditions and causes of the abuse or neglect.

The court’s specific findings as to the causes and conditions
of the abuse or neglect become the law of the case.
40
Findings of Aggravated Circumstances
If the petition alleged aggravated circumstances,
the Court must:
 make
and record its findings on whether
aggravated circumstances were proved at trial,
or
 state that a sufficient factual basis exists for
any admission of aggravated circumstances.
41
The Court Order
The order should:






include findings concerning the existence of abuse, neglect, or
aggravated circumstances,
include findings of specific facts and circumstances related to
reasonable efforts to prevent removal or reunify the family,
provide for the custody of the child pending the next proceeding,
include a finding that the custody arrangement ordered by the court is
in the child’s best interest,
include a finding that reasonable efforts were made to place siblings
together unless this would be contrary to the safety or well-being of
any of the siblings, or, if siblings were not placed together, whether
they have been provided reasonable visitation or other ongoing
interaction, unless such visitation or interaction would be contrary to
the safety or well-being of any of the siblings, and
impose a treatment plan that aims to mitigate and correct the
conditions and causes of the abuse or neglect.
42
The Predisposition Study & Report
A detailed study of family needs and strengths,
including the impact of the case on the child, is
conducted by the permanency planning worker.
 2009
changes: the predisposition study and
report must address the child’s educational
needs.
Based on this analysis of the family and the case,
the CYFD team develops a treatment plan,
often with input from the other parties.
43
The Treatment Plan
The Plan must:
 ensure
the child’s physical, medical, psychological,
and educational needs are met;
 set
forth services to be provided to the child and
parents aimed at facilitating permanent placement of
the child in the parent’s home, including visitation
arrangements and medical, educational, and
therapeutic services for the child; and
 focus
on changing the parental behavior(s) that
caused the child’s removal from the home.
44
Reasonable Efforts & the
Treatment Plan
The Court may determine that reasonable efforts
to preserve and reunify the family need not be
included in the treatment plan if:
 the
efforts would be futile;
 aggravated circumstances were proved (or admitted)
during the adjudication; or
 CYFD pled and proved that the parent previously
had his or her parental rights to another child
involuntarily terminated.
45
Effect of the
Reasonable Efforts Findings
If the court decides that reasonable efforts to
reunify the family are NOT required, it must
schedule a permanency hearing within 30 days.
If reasonable efforts continue to be required, then:
 CYFD
must make reasonable efforts to implement
and finalize the permanency plan in a timely manner,
and
 The Court must hold an initial judicial review
hearing within 60 days.
46
The Dispositional Hearing
Why. To establish legal custody of the child, set visitation
arrangements if appropriate, adopt a treatment plan, and
determine appropriate findings of fact.
When. The Dispositional Hearing may:
follow immediately after the adjudication, or
 commence within 30 days after the conclusion of the
adjudicatory hearing.
Who. The parties, attorneys, witnesses, the CASA volunteer, and
sometimes the foster parent, preadoptive parent, or relative
providing care.



A child under 14 may be excluded if the court finds exclusion is in the
child’s best interest.
A child who is 14 or older may be excluded if the court makes a finding
that there is a compelling reason to exclude the child and states the
47
factual basis on the record.
Possible Dispositions
The Court may:



Return the child to the parent, with or without protective
supervision by CYFD;
Transfer custody of the child to the non-custodial parent; or
Place or continue the child’s placement in the legal custody of
CYFD.
If the child is an Indian child, the disposition should:


comply with ICWA placement preferences or the placement
preferences of the Tribe, and
maintain the child’s cultural ties.
48
Developing a Permanency Plan
at the Outset of the Case
CCA. Reunification is initial plan unless aggravated circumstances
or abandonment
PPW. Develops treatment plan appropriate for the child's
permanency plan; concurrent planning for all children 3 and
under and as appropriate
GAL. After consultation with client makes best and expressed
interest suggestion
YA. After consultation with client makes expressed interest
suggestion
Judge. Approves (or not) plan proposed by Dept at trials and
hearings
49
Concurrent Planning
What is it? Concurrent planning allows simultaneous
pursuit of reunification and an alternative permanency
plan, preferably adoption.
Why. To reduce the time a child spends in foster care
before achieving permanency.
When. § 32A-4-29(F) requires concurrent planning to
begin by the time a TPR motion is filed.

In practice, concurrent planning begins much earlier (when
reunification is no longer the permanency plan).
50
Concurrent Planning
CCA. Staffs case with PPWs.
Investigator/PPW.



identifies concurrent foster home,
works with foster family to assist with reunification
as well as with eventual adoption if necessary (not easy…)
RA. Counsels client about meaning of concurrent
planning.
GAL and YA. Independently investigates and determines
appropriateness of concurrent planning.
Judge. Will be asked to approve concurrent planning in a
hearing. What should judge consider?
51
Citizen’s Review Boards (CRB)
32A-4-25 & 25.1 (A) (not a court hearing)
GAL. Should attend the CRB. If not possible, GAL writes letter
or report and asks client to write to CRB (CRB sends form to
YA to forward to child)
PPW. Required to attend the CRB and make full report
YA. Should attend the CRB, decides, with client, if client should
attend, if not possible, writes letter or report and asks client to
write to CRB (CRB sends form to YA to forward to child)
RA. Decides with client if either should attend the CRB, if not,
attorney sends letter or report
CASA. Should attend the CRB
Judge. Reviews the recommendations written by the Board
52
The Initial Judicial Review
Why. To ensure that everyone is engaged in the treatment plan, the
treatment plan is working properly, and to modify the treatment plan
if necessary.
When. The IJR must be held within 60 days of the disposition.
Who. The parties, attorneys, GaLs, witnesses, the CASA volunteer, the
foster and preadoptive parent, or relative providing care, treatment
providers and the CRB representative.


A child under 14 may be excluded if the court finds exclusion is
in the child’s best interest.
A child who is 14 or older may be excluded if the court makes a
finding that there is a compelling reason to exclude the child and
states the factual basis on the record.
53
Initial Judicial Review: §32A-4-25
CCA.

Summarizes case status, compliance with treatment plan.

May use reports, informal statements or sworn testimony of
PPW,

presents permanency plan and requests findings
PPW.

Provides report to court, CRB, and parties which summarizes
status of children, parents’ compliance with treatment plan

presents in court as needed;
CASA.

Assists ct in determining best interest of child by investigating
and submitting reports, monitors compliance and case progress
54
Initial Judicial Review, cont.
RA.
 Notice to client and arrange participation
 Show diligent and good faith efforts by parent to comply with
treatment plan and maintain contact with child
YA.
 investigate and present expressed interest of child,
 after consultation with client, may arrange client’s appearance
GAL.
 investigate and present expressed and best interest of child
 after consultation with client, may arrange client’s appearance
Judge.
 determines level of implementation of Treatment Plan,
 makes orders to ensure compliance and to protect safety of the
child,
 makes custody (not placement) decisions,
 determines whether progress is being made to establish a stable and
permanent placement for child
55
Development of On-going
Treatment Plans
CCA. Consults with client
PPW. Using reports and observation, develops treatment
plans appropriate for individual parties
GAL or YA. Using reports and consultation with client,
can request PPW change the treatment plan
RA. Using reports and consultation with client, can
request PPW change the treatment plan
56
On-Going Placement Decisions
CCA. If a move proposed, CCA provides 10-day notice of change
of placement to parties, unless there is an emergency. §32A-414.
PPW. Dep’t has discretion to make placement decisions. Many
districts use FCMs in this decision-making process.
RA. May object to change in placement, but objection does NOT
stop move.
YA and GAL. May object to change in placement. Requesting a
hearing stops the move. 32A-4-14(B).
Judge. Can modify placement only if Dep’t abuses its discretion in
making placement.
57
Change of Permanency Plan
CCA.
 Staffs
case with PPWs.
 Reviews TPR requirements if change of plan to TPR is
recommended.
 Presents proposed change of plan to court.
 Prepares TPR Motion if plan is changed to
TPR/adoption.
PPW.
 Elicits
information from parties and providers in a
Change-of-Plan Staffing or FCM (not a court hearing).
 Makes recommendation for Permanency Plan.
58
Change of Permanency Plan, cont.
YA. With investigation, consultation with, and
counseling of client, YA presents position in
Change-of-Plan Staffing.
GAL. With investigation, consultation with, and
counseling of client, GAL presents position in
Change-of-Plan Staffing.
Judge. Approves or disapproves requested
change-of-plan in a hearing.
59
Pre-Permanency Hearing Meeting
§ 32A-4-25.1(A)
Why. To discuss the Department’s proposed permanency
plan and to try to reach consensus about a plan.
 What
is a permanency plan? A determination by the
Court that the child’s best interest will be served by:
 Reunification,
 Placement
with a permanent guardian,
 Placement
for adoption (after TPR or relinquishment),
 Placement
in CYFD’s legal custody, with the child in the
home of a fit and willing relative, or
 Placement
in CYFD’s legal custody under a planned
permanent living arrangement.
60
Pre-Permanency Hearing Meeting, cont.
When. Not less than five days before the Initial
Permanency Hearing. Rule 10-325(D).
 Best
practice: The Court should schedule the Meeting at
the initial judicial review hearing.
Who. All parties to the permanency hearing.
 The
social work supervisor may facilitate the meeting.
 The
CASA volunteer, foster parent, and potential
permanent caregivers should be invited.
 Therapists
or others with useful information may be
invited.
61
Pre-Permanency Hearing Meeting
§32A-4-25.1(A)
CCA. Presents Dept’s position on permanency with PPW
PPW. Reviews past compliance of parents. If plan still
reunification need to develop transition home plan for
Ct.
CASA. May have distinct information on child
RA. Presents info on compliance and develops a tx plan
that serves the child’s best interest and parent's interest
YA or GAL. interview client and consider arranging
attendance, and develop a tx plan that serves the child’s
best interest
Judge. May schedule for the parties, but does not
participate.
62
The Permanency Hearing
Why. To adopt a permanency plan that is in the
child’s best interest. § 32A-4-25.1.
When. Within the EARLIEST of the following:
6
months after initial judicial review hearing,
 30
days after a judicial determination that reasonable
efforts toward reunification are not required, or
 12
months of the child entering foster care.
63
Entering Foster Care Defined
§ 32A-4-25.1
A child enters foster care on the earlier of:
 The
date of the first judicial finding of abuse or
neglect, or
 60
days from the date the child was removed from
the home.
64
The Permanency Hearing:
Evidence and Due Process
Rules of Evidence. Do not apply, but all testimony is
subject to cross-examination.
Due Process Protections Attach. Due process requires
basic protections at critical stages of abuse/neglect
proceedings.
 The
Permanency Hearing is a critical stage. Maria C.,
2004-NMCA-083.
Burden of Proof. There is no presumption that
reunification is in the BIC. The Court must consider the
evidence presented and order one of the permissible
permanency plans.
65
Initial Permanency Hearing
(32A-4-25.1)
CCA.

Using reports, informal statements or sworn testimony of PPW, summarizes
case status, compliance with treatment plan. Consults with client and arranges
any needed witnesses

At least once every 12 months, CYFD must seek finding of reasonable efforts
to meet ASFA requirements.
PPW. Prepares and submits 2 reports:

1)Progress Report. A progress report on the child to the local CRB
describing reasonable efforts toward reunification and achieving permanency.

The CRB may report its findings and recommendations to the Court.

2)Court report to court and parties, due 5 days before hearing summarizes
the status of children and the parents’ compliance with treatment plan,
proposes a perm plan and any other changes to disposition in the form of a
new treatment plan

Presents in court as needed.
66
Initial Permanency Hearing, cont.
GAL and YA

notice to, and meet with, client, arranges needed witnesses

arranges client’s attendance after consultation, barring
compelling reason for youth’s absence
RA.

notice to client and/or arrange participation

review report and proposed treatment plan and consult with
client, present evidence, as needed
CASA.

Conducts independent review of case and report to Court.
67
The Permanency Hearing, cont.
Judge.
 Orders a permanency plan
 If reunification, must order transition plan and set Perm
review hearing within 3 months
 Consults with the Child. Federal law requires the court to
consult with the child in an age appropriate manner about the
proposed permanency plan.
 Federal guidelines allow this consultation to take place
through the child’s GAL or YA, but the preferred
practice in NM is to involve the child as much as
possible.
68
Is Reunification Still a Viable Option?
At the Permanency Hearing, the Court must decide whether
reunification is still viable.
At the end of the hearing, the Court must order one of the
permissible permanency plans (in order of preference):
 Reunification
 Placement for Adoption (after relinquishment or TPR)
 Placement with a person who will be the child’s permanent
guardian
 Placement in CYFD’s legal custody with the child placed in
the home of a fit and willing relative.
 If none of these options are appropriate, then placement of
the child in CYFD’s legal custody under a planned
permanent living arrangement.
69
New Reasonable Efforts Findings
If reunification is no longer the plan, the judge
must make findings about whether the
department made reasonable efforts to identify,
locate, and study grandparents and other relatives
for children who cannot be reunited with their
parents.
70
Reasonable Efforts to Finalize
a Permanency Plan
ASFA requires the Court to determine whether CYFD
made reasonable efforts to finalize a permanency plan.
This determination must be:
 made
within 12 months of the child’s entry into
foster care,
 explicitly
 made
documented,
on a case-by-case basis, and
 included
in the court order.
71
Adopting a Transition Home Plan
If the court adopts a plan of reunification, it will also
adopt a plan for transitioning the child home and
schedule a permanency review hearing within 3 months.
The transition plan should have been developed (in a
FCM) or even at the Pre Perm before the Permanency
Hearing.
72
Developing a transition home plan
CCA. Consults with and advises PPW, participates in
FCM
PPW. Usually first presenter in FCM and has materials,
such a s a blank calendar.
Respondent/RA. Participates in FCM with client
GAL or YA. Consults with client and arranges
participation in FCM as appropriate
Judge. may have input at a hearing or be asked to
approve proposed plan after the fact
73
Permanency Review Hearings
Why. To review progress toward reunification and to determine if
an alternative permanency plan is in the BIC.
When. If the PP is reunification, then within 3 months of the
Permanency Hearing if the child has not been returned home.
If CYFD retains legal custody of the child, the Court must:
hold a permanency hearing every 12 months, and
 at least once every 12 months determine whether reasonable
efforts to finalize the PP have been made.
Rules of Evidence. Do not apply, but all parties may present
evidence and cross-examine witnesses. Foster parents have the
right to be heard.

74
Permanency Review Hearings
At the Permanency Review Hearing, the Court must decide
whether to:
change the Permanency Plan,
 dismiss and return custody of the child to the parent,
guardian, or custodian, or
 return the child to the p/g/c, subject to conditions or
limitations* imposed by the Court. These may include:
 protective supervision and

 continuation
of the treatment plan.
*Any conditions and limitations may last no more than 6 months.
75
Permanency Review Hearing
§§32A-4-25.1(C) & (D)
CCA.


summarizes case status and compliance with treatment plan
may use reports, informal statements or sworn testimony of
PPW
CASA.

Conducts independent review of case and reports to Court
PPW.



provides report to court and parties (due 5 days before hrg)
presents testimony in court as needed
summarizes status of children and parents’ compliance with
treatment plan
76
Subsequent Permanency Hearing, cont.
Guardian ad Litem and YA

notice to client and consult

after consultation, arrange client’s attendance barring compelling
reason for absence of youth
RA.

notice to client and/or arrange participation

review report and proposed treatment plan

consult with client
Judge.

changes plan from reunification to an alternative,

dismisses case and return, or

returns child with protective supervision
77
Subsequent Judicial Review Hearings
Why. To review CYFD’s progress in implementing Ct. orders, if
involved, the R’s compliance with the treatment plan, and if
progress is being made toward stability and permanency.
When. The first Judicial Review Hrg must be held within 6
months of:
the conclusion of the permanency hearing, or
 a decision on a motion for TPR or permanent guardianship.
 then every 6 months thereafter.
Who. The parties, their attorneys (including GAL and YA), foster
parents, the CASA, the CRB (by report), and possibly
treatment providers and witnesses.

The Rules of Evidence. Do not apply, but all parties may
present evidence and cross-examine witnesses.
78
Subsequent Judicial Review Hearings, cont.
The Court Order. Must include findings of fact and conclusions of
law. The findings should address:





The reasonableness of CYFD’s efforts to implement the
treatment plan, preserve and unify the family, and finalize the
permanency plan or why reasonable efforts are not required;
The R’s compliance with the treatment plan,
Whether continuation of custody is in the child’s best interest,
Whether the treatment plan maintains the child’s cultural ties, and
Whether ICWA or tribal placement preferences have been
followed.
Disposition. The order should select one of the permissible
dispositions.
79
Permanency Options
 Reunification
 Placement
for Adoption (after relinquishment,
consent, or TPR)
 Placement with a person who will be the child’s
permanent guardian
 Placement in CYFD’s legal custody with the child
placed in the home of a fit and willing relative.
 If none of these options are appropriate, then
placement of the child in CYFD’s legal custody
under a planned permanent living arrangement.
80
Termination of Parental Rights
To free children for adoption: the state terminates legal
rights:

of any and all persons who have a constitutionally protected
interest in the custody of the child,
 even those who may never have been present as parents.
Rare situations exist in which TPR is warranted even if
adoption is not going to occur.
Because of the fundamental nature of parental rights, the
court must accord due process.
 Notice
and a meaningful opportunity to be heard
 Right to counsel
 Right to appeal
81
TPR
§ 32A-4-28
Statutory grounds for TPR:
 Abandonment
 Inability
to parent cannot be cured in the foreseeable
future despite reasonable efforts to assist
 “Presumptive Abandonment” - parent-child
relationship has disintegrated and a psychological
parent-child relationship with a substitute caregiver
has developed.
Burden of Proof. Clear and convincing evidence
(but if Indian child, then evidence must be beyond a reasonable
doubt).
82
REASONS TO NOT FILE TPR
32A-4-29(G). (1) parent has made substantial progress; likely that child
can return home within 3 months; and the child's return in BIC;
(2) child has close and positive relationship with parent plan other
than TPR will provide the most secure and appropriate placement for
the child;
(3) 14 and over, opposed to TPR and likely to disrupt adoptive
placement
(4) parent terminally ill, but in remission, and doesn’t want rights to be
terminated; if the parent has designated a guardian for the child;
(5) child can’t function in a family setting. Requires status review every
90 days unless a final court determination that the child can’t be placed
in a family setting;
(6) grounds do not exist for termination of parental rights;
(7) the child is an unaccompanied, refugee minor and the situation
regarding the child involves international legal issues or compelling
foreign policy issues; or
(8) adoption is not an appropriate plan for the child.
83
TPR: Indian Child
§ 32A-4-28(E)
TPR involving an Indian child requires:
 Proof
beyond a reasonable doubt that:
Continued custody by the parent or Indian
custodian is likely to result in serious emotional or
physical damage to the child.
 Expert
testimony.
 Specific
findings that the requirements of ICWA
have been met. § 32A-4-29(K).
84
Termination of Parental Rights (TPR)
§§32A-4-28 & -29
CCA. Typically files (but not always)
presents Dept’s position
 subpoenas/calls witnesses
 requests findings
 drafts judgment
 discloses all reports required by Rule 10-308(A)(3) in a timely
manner (at least 15 days before TPR hearing.)
 If motion to TPR filed by another party, CCA may take
over/join in litigation or move that motion is premature and
seek denial
Investigator and PPW.


Dept. witness and client
85
Termination of Parental Rights, cont.
RA.
develops case with client and arranges meaningful
participation of client
 subpoenas witnesses, if needed
 participate fully in hearing (present evidence, examine
witnesses, make objections to preserve error for appeal)
GAL and YA. (could file for TPR)


present child’s position and GAL also presents opinion of BIC

may arrange for child’s participation, arranges witnesses and
examines witnesses in court, preserve error
86
Termination of Parental Rights, cont.
Judge.

make reasonable attempts to facilitate meaningful
participation of respondent in proceeding

SHALL terminate under certain circumstances

if so, must appoint custodian and fix responsibility
for the child’s support,

make ICWA findings
87
Relinquishment (or Consent?)
§ 32A-5-21
In many instances, especially where there is a
possibility of an “open adoption,” the parent
may consent to a voluntary relinquishment of
parental rights.
 Relinquishment
to CYFD can NOT be conditioned
upon an open adoption.
 Relinquishment
requires counseling and judicial
verification that the relinquishment is knowing and
voluntary.
 When
relinquishment involves an Indian Child, the
relinquishment must satisfy ICWA requirements.
88
Relinquishment: Indian Child
§ 32A-5-21, 25 U.S.C § 1913
When relinquishment involves an Indian Child, ICWA
requires the relinquishment to be:
 in
writing
 signed
before a judge, and
 accompanied
by a judge's certification the person
understood the contents of the writing.
Withdrawal. Voluntary terminations may be withdrawn
before a final decree is granted.
Vacating Adoption Decree. A final decree of adoption
of an Indian child may be vacated if the relinquishment
provisions were not followed.
89
Adoption
Adoption may be considered in the same cause as the TPR.
The Court may grant adoption in the A/N case if it finds that:
Parental rights should be terminated;
 The requirements of the Adoption Act have been
satisfied;
 The prospective adoptive parent is a party to the case;
and
 Good cause exists to waive the filing of a separate
petition for adoption.

90
“Open” Adoption: §32A-5-35
Open adoption can be pursued:

with relinquishment or TPR, but
 relinquishment cannot be conditioned on open adoption

with or without mediation
 Alternatives to mediation must be specifically considered
All counsel:




Advise their own clients
Work out agreements in a pre-mediation session setting
proposed framework of biological and adoptive parents’
contact and if extended family involved
Pick 1 attorney to oversee entry of any such agreement in
adoption
Any such agreement must be in the best interest of the child
91
“Open” Adoption, cont.
CCA.
represents the Department
 may be involved in pre mediation, not usually in mediation
CASA.


may be involved in pre mediation because of unique
knowledge of child or children, not usually in mediation
PPW.




front line contact with potential adoptive family
explains benefits and detriments of open adoption
refers family to private counsel
may be involved in pre mediation, not usually in mediation
92
“Open” Adoption, cont.
GAL.


Counsels client in age appropriate manner.
May be involved in pre mediation, not usually in mediation, unless
child is present and should have counsel
YA.
counsels client in age appropriate manner
 teen may be present in negotiations, may or may not want
representation
RA. Counsels client that:

Open adoption is not a quid pro quo
 Open adoption must be a good decision for the child independent
of the promise of contact with child
Judge.



Court order for mediation can ensure confidentiality.
inquiry as to open adoption can support entry of terms
93
Relinquishment: §32A-5-24
CCA.

sets hearing and notices parties, etc.

drafts relinquishment form and ideally distributes before hearing
PPW.



talks to parent about relinquishment or consent
arranges relinquishment counseling with counselor with required
certification to explain what relinquishment means and explain
possible alternatives (which may not really be available)
counselor to prepare counseling narrative
94
Relinquishment: §32A-5-24
GAL and YA.
Counsels
child in age-appropriate manner.
Technically,
child could be present
RA.
counsels
parent about effect of relinquishment
permanent unless Indian Child (relinquishment may be
revoked before adoption of child)
may preserve open adoption in some manner
Judge.
Verifies
May
whether relinquishment is voluntary
order on-going support (rare, if at all)
95
Permanent Guardianship
32A-4-31 and 32
Permanent Guardianship is possible when:
 Respondent
remains unable to provide for the child’s
safety and welfare, even after services and efforts to
assist, and either
TPR is inappropriate because the parent-child or
other family relationships still have value so, OR
Adoption
unlikely under the circumstances
Identified
guardian agrees to placement with no
financial support from state and no Medicaid
96
Permanent Guardianship, cont.
Permanent Guardianship:
 assures that the child will have a consistent adult decision
maker, but does not sever the parent’s interests irrevocably;
 transfers legal responsibility and legal authority for the child
to a third party who has offered to become the child’s
guardian; and
 is not necessarily perpetual.
 The court retains jurisdiction to dissolve or modify the
guardianship upon a showing of changed circumstances
by either the parent or the guardian.
The guardian is almost always a relative. Ideally, the guardian is a
relative with whom the child is already familiar.
97
Permanent Guardianships
ANY PARTY may file for permanent guardianship and
give notice to parties, fosters, CASA
CCA.

Typically files and gives notice,

may litigate guardianship
RA.

represents client and arranges meaningful participation
in hearing.
98
Permanent Guardianships, cont.
GAL and YA
Presents
child’s position AND Guardian ad Litem presents
opinion of the child’s best interest
may
arrange client’s participation and
Child
BIC
over 14 may nominate and court SHALL appoint unless not
Judge.
Makes
may
decision based on evidence,
include visits with siblings, natural parents, other relatives
and
other provisions necessary to rehabilitate (sic) the child or
provide for the child’s continuing safety and well-being.
99
Appeals
12-201, -206, -303, -304, -305.1
Notice of Appeal. The Notice must be filed in the district court
within 30 days of the entry of the judgment being appealed.
Final Orders Appealable as of Right. Orders dismissing an
A/N petition, orders finding abuse or neglect, TPR orders, and
“any other final order.” Rule 12-201.
Docketing Statement. Trial counsel must file the docketing
statement within 30 days of filing the notice of appeal.

The Docketing Statement must comply with Rule 12-208,
 clearly state the grounds for appeal and
 include
specific references to the record and legal
authority.
100
Appeals
Appellant’s counsel (whether CCA, GA, YA or RA) files notice of appeal
and docketing statement, and gives notice to everyone
CCA. Presents Dept’s position.
RA.
 Files Notice of Appeal, then Docketing Statement,
 must give proof of indigency to Ct of Appeals
 Must request appointment of appellate attorney Rule 12-208
GAL or YA.
 at a minimum files entry of appearance in the Ct of appeal
 may need to brief issues
Judge.
 Children’s Court retains jurisdiction during pendency of appeal
 may hold hearing to determine eligibility for appointed appellate counsel
101
Adoption: §32A-5-1 et seq.
Adoption Attorney. (new player)


Presents petition to adopt in existing cause or files new
Represents adoptive parents.
CCA.


Receives notice of petition
determines, in consultation with PPW, if Dept. needs more
information and/or should intervene. §32A-5-6
Judge.


Many required findings
If requirements not met, court must deny petition and determine
who will have custody
102
Adoption, cont.
RA. May continue in case for purposes of notice only
to ensure entry of Open adoption agreement, if any,
or affidavit for contact,
May need to request specific payment
GAL.
presents child’s position AND
GAL’s opinion of the child’s best interest
child 10 and over must be counseled
YA.
Presents child’s position.
child must consent
103
On-going Permanency (12 mos) and Judicial
Reviews (6 mos) § 32A-4-25 and - 25.1(F)
CCA. presents Dept’s position, requests findings, and drafts
judgment
PPW. before each review sends report and treatment plan to all
remaining parties
CASA. conducts independent investigation and reports to the court
GAL and YA
Presents child’s position (AND GAL’s opinion of the child’s
best interest)
 arrange child’s participation barring compelling reason for
youth
Judge.



approves permanency plans and treatment plans,
makes additional findings in best interest of the child
104
Possible Out of Court Meetings for
Clients and/or Counsel
Treatment Team Meetings – Monthly review for children
in Treatment Foster Care
FCMs – Family Centered Meetings – to address Changes
of Plan or Placement
COPs – Change of Plan or Placement
Icebreakers – For bio parents to meet foster parents
FSS –Family Support Services – what support services
needed for foster family?
La Entrega – for foster parents to return child to bio
parents
105