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 decision-making 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 removal from the home is necessary, CYFD attempts to place the child in the most familiar setting possible, in physical proximity to relatives and respectful of the child’s cultural connections. Siblings should stay together whenever possible, unless there are clinical indications to the contrary. For an Indian child, special procedures require consultation with the child’s tribe and its placement preferences.

Visitation between children and their parents helps to encourage positive participation and maintain healthy relationships, while providing vital information on the child’s attachment to the parents and their parenting skills. When family reunification fails, or is not expected to safely succeed, immediate measures must be taken to secure an alternative, permanent placement for the child. This is followed by legal action to modify or replace the parent-child relationship.

1.2 CHILDREN'S COURT
The Children’s Code establishes the children’s court as a division of the district court, with subject-matter jurisdiction over proceedings arising under the Code in which a child is alleged to be abused or neglected. Jurisdiction over the parent, guardian or custodian of the child is based on the child’s presence in the state or an allegation that the abuse or neglect occurred here.

The children’s court has broad discretion under the Code, the applicable court rules and its inherent equitable power to receive information and fashion remedies consistent with the best interest of the child. From beginning to end, every decision of the children’s court judge is attended with the due process protections of notice and the opportunity to be heard.

1.3 ANATOMY OF AN ABUSE AND NEGLECT CASE

1.3.1 REPORTS AND INVESTIGATION
Every person is required by law to report suspected abuse or neglect, but only some of these reports reveal circumstances serious enough to result in a court proceeding. In an emergency situation, law enforcement personnel can take a child into custody, while medical personnel can hold a child until law enforcement can take custody. These are the only two professions with authority to take emergency action.

CYFD’s Statewide Central Intake (SCI) evaluates reports and assigns a priority for investigation, while also contacting law enforcement if that has not already been done. Specially trained case workers investigate every report, following established criteria to determine which situations are the most urgent and what needs to be done to assess the risk to the child.

If the report is substantiated or if the child has already been taken into protective custody by law enforcement, the next question is whether there is a way to lower the risk without having to remove the child from the caretaker. State and federal law and best practices require that reasonable efforts be made to prevent removal of the child from the home. CYFD identifies what reasonable efforts could be made to prevent the removal of the child from the home, giving consideration to the health and safety of the child. These efforts could involve the offer of services such as available community services or in home services to assist the parent to care for the child within the home or family unit. Noncustodial parents or other extended family members might be able to provide temporary care while the dangerous or neglectful condition is corrected.

Legal intervention begins only when less intrusive alternatives have been exhausted or when the risk of serious harm is unacceptably great. When the child’s situation indicates that informal measures are insufficient to assure safety, or that the parent is unable or unwilling to provide an appropriate level of care, CYFD will request appropriate relief from the court to assure the child’s safety and health.

1.3.2 PETITION
A case begins with the filing of a petition by CYFD alleging abuse or neglect. If the case worker and supervisor responsible for the investigation of a report decide that CYFD should seek legal custody of the child, they turn to the children’s court attorney. The children’s court attorney must endorse upon the petition that the filing of the petition is in the best interest of the child. If the child is already in CYFD’s emergency custody, the petition and a motion for an ex parte custody order must be filed within two working days. CYFD also may file a motion for an ex parte custody order if it believes the child’s welfare demands it, even if the child is not already in custody.

The district court clerk assigns a docket number and a judge to hear the case. CYFD, the petitioner, must serve the summons personally upon the respondent, along with notice of the hearing and other pertinent papers. In every case, the children’s court appoints counsel to represent the respondent and either counsel or an attorney-guardian ad litem (GAL) to represent the child, depending on the child’s age. If the court issues an ex parte custody order it will schedule a custody hearing within 10 days.

Once a petition has been filed, the following themes underlie all subsequent actions:

• Timeliness. As the Children’s Code has evolved and the federal Adoption and Safe Families Act has been implemented, the timeframes within which important decisions must be made have consistently shortened. This sense of urgency reflects the reality that time is not static to a child. A child separated from its family deserves the speediest of resolutions. Foster care is a stopgap measure, never a solution.
• Continuity. An abuse or neglect case is a single entity, from the custody hearing to the adjudication to the permanency hearings and final placement. Although these proceedings are separated into discrete events, each relates to and builds upon its predecessors. The Code recommends that, to maintain continuity, a single judge should hear all of the proceedings involving the child or family whenever possible.
• Remediation.The purpose of the legal action is not punitive but remedial. These cases are unique in that the focus is not on awarding damages or other compensatory relief. Nor is it on conviction and sentencing, even though many of the due process protections from the criminal law arena have been extended by analogy. Rather, although there must be a determination that the child has been abused or neglected at some point, the goal is to arrive at a plan that will provide permanent protection for the child. The emphasis is on cooperation and rehabilitation instead of conflict.
• Permanency. Every child has a right to a family and every effort towards permanency should have this fundamental proposition as its basis. This includes 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.

1.3.3 CUSTODY HEARING
At the custody hearing, the respondents are advised of their legal rights. 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. Formal rules of evidence do not apply.

Upon the conclusion of the hearing, the court must return the child to the respondent unless it finds probable cause to believe that the child would not receive safe or adequate care. If the court finds such probable cause, it may award legal custody to CYFD or it may return legal custody to the respondent on such conditions as will reasonably ensure the child’s safety, including protective supervision by CYFD. Often the court orders additional evaluation or assessment of the respondent, the child, or both. If custody is vested in CYFD, it has discretion to decide whether the child needs to be in substitute care outside the home or whether he or she can remain in the home and if so, under what conditions.

Most often, the ultimate objective is for the child to return home safely. The CYFD permanency planning 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.

1.3.4 ADJUDICATORY HEARING
Within 60 days of service of the petition, the court must commence the adjudicatory hearing. This is a trial on the merits at which CYFD must prove by clear and convincing evidence that the child is abused or neglected, as defined by statute. Allegations of aggravated circumstances, if any, should be proved similarly at this time. 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.

If the adjudicatory hearing is not timely commenced, the petition must be dismissed with prejudice. Extensions of the time limit to commence the adjudicatory hearing can be sought from the district court and the New Mexico Supreme Court, if needed for extraordinary circumstances. If the court does not find that the evidence is clear and convincing, the child must be returned to the custody of the respondent and the case dismissed. Otherwise, a finding of abuse or neglect results in a final, appealable order and establishes the factual basis for everything that follows. The court’s specific findings as to the causes and conditions of the abuse or neglect become the law of the case. If new factual allegations arise, CYFD must file an amended petition to bring them to the attention of the parties and the court.

1.3.5 DISPOSITIONAL HEARING
If the adjudication results in a finding of abuse or neglect, the court retains jurisdiction to award custody of the child and to order the implementation of a treatment plan to mitigate and correct the conditions and causes of the abuse or neglect. These matters are addressed at the dispositional hearing, which may be held in conjunction with the adjudicatory hearing or within 30 days thereafter.

At the dispositional hearing the formal rules of evidence are suspended, primarily to allow the court to consider the results and reports of previous evaluations and assessments. The permanency planning worker will have conducted a detailed study of family needs and strengths, including the impact of the case on the child. Based on this analysis, the CYFD team develops a treatment plan, often with input from the other parties and designed first to meet the needs of the child, second to assist the family and finally to facilitate the child’s return to a safe environment as expeditiously as possible. The court may order that plan or modify it.

Among the possible dispositions the court may make at this hearing are:

• 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 the placement preferences of the Indian Child Welfare Act (ICWA) or of the child’s tribe and maintain the child’s cultural ties.

When the child is placed outside the home, the court may order the respondent to contribute to the child’s financial support.

If the court decides that reasonable efforts to reunify the family are not required because of aggravated circumstances, it must schedule a permanency hearing within 30 days. Otherwise, an initial judicial review hearing will be held within 60 days.

1.3.6 INITIAL JUDICIAL REVIEW HEARING
The initial judicial review hearing must be held within 60 days of the disposition. When the goal is family reunification, this hearing is held to oversee the treatment plan. The court and the parties can examine the implementation of the treatment plan, identify any impediments and adjust the plan as necessary. The hearing also serves as an important reminder that the goals of the treatment plan must be achieved within six months or else the permanency plan may change. Finally, the hearing provides an opportunity for the court, the parties, the CASA volunteer, and the citizen review board to address the child’s adjustment to placement along with any other matters that have arisen since the inception of the case. It is important to remember that the child’s voice needs to be heard here, whether in person or through child’s GAL or attorney. The formal rules of evidence do not apply at this hearing.

In the vast majority of cases, the treatment plan is congruent with a permanency plan of maintaining the child at home or returning the child to the home. In the most severe or intractable situations, however, the court may find that aggravated circumstances exist and may order that no further efforts toward reunification need to be attempted. In those instances, the court must set a permanency hearing within 30 day of that determination. Otherwise, the permanency hearing must be held within six months of the initial judicial review or within twelve months of the child entering foster care, whichever occurs earlier.

1.3.7 PERMANENCY HEARINGS
Returning the child home is the plan in most cases. This means that within six months from the judicial review hearing, or within 12 months of the child entering foster care, whichever date comes first, the court must hold a permanency hearing to determine whether reunification remains viable. Prior to the permanency hearing, the parties are required to attend a pre-permanency hearing conference. If the plan for returning the child to the home does not appear to be viable, the parties may explore alternative placement arrangements that could provide for the long term needs of the child while preserving family relationships.

At the permanency hearing, all of the parties have the opportunity to present evidence and to cross-examine witnesses, although the formal rules of evidence do not apply. Again, it is important that the court hear the child’s view. At the end of the hearing, the court will order one of the following permanency plans for the child:

• Reunification;
• Placement for adoption after relinquishment or termination of the parent’s rights;
• 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; or
• If none of these options are appropriate, placement of the child in CYFD’s legal custody under a planned living arrangement.

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 three months. If the child is returned home before the hearing, the hearing will be vacated. If the child has not returned home yet, then the court will take evidence and decide whether it should change the child’s plan, return the child to the custody of the parent, guardian, or custodian and dismiss the case, or return the child subject to conditions imposed by the court, including protective supervision and continuation of the treatment plan.

1.3.8 PERMANENT GUARDIANSHIP
There are a number of cases where the respondent is unable to provide for the child’s safety and welfare, even after the offer of services and efforts to assist. Yet the parent-child or other family relationships may still have value and adoption may be unlikely or undesirable under the circumstances. In these cases the special status of permanent guardianship is a possibility for children who have been adjudicated as abused or neglected.

A judgment of permanent guardianship transfers legal responsibility and legal authority for the child to a third party who has offered to become the child’s guardian. This person is almost always a relative and ideally one with whom the child is already familiar. Something of a misnomer, this form of guardianship is not necessarily perpetual. It assures that the child will have a consistent adult decisionmaker, but it does not sever the parent’s interests irrevocably. The court retains jurisdiction to dissolve or modify the guardianship upon a showing of changed circumstances by either the parent or the guardian.

1.3.9 TERMINATION OF PARENTAL RIGHTS - ADOPTION
For many children in the state’s custody, adoption represents the best hope for a permanent family. To free these children for adoption, the state first must terminate the 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. Situations also exist in which termination of parental rights is warranted and necessary even if adoption is not going to occur.

Because of the fundamental nature of parental rights, the court must be careful to accord due process to the parties whose rights may be terminated. Notice and the meaningful opportunity to be heard are guaranteed, as are the rights to counsel and to appeal.

Each of the elements of one of the three statutory grounds for termination of parental rights must be supported by clear and convincing evidence. The grounds for termination are:

• Abandonment;
• Abuse or neglect that cannot be cured in the foreseeable future despite the reasonable efforts of CYFD or other agencies (especially where the parent has inflicted serious harm on the child, another child or a family member); or
• Certain situations in which the parent-child relationship has disintegrated and a psychological parent-child relationship with a substitute caregiver has developed.

When the child is an Indian child, ICWA requires evidence 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, and expert testimony is required.

In many instances, especially where there is a possibility of an “open adoption,” the parent may consent to a voluntary relinquishment of parental rights, although a relinquishment to CYFD cannot be conditioned upon an open adoption. Relinquishment requires counseling and judicial verification that the relinquishment is knowing and voluntary. In cases involving Indian children, ICWA imposes additional requirements.

Timeliness is always important, even when the child is already in a home identified as “pre-adoptive.” Until the adoption decree is final, the child and its new family lack security. All legal proceedings to this end should be handled as promptly as possible, consistent with the due process interests of all the parties.

1.3.10 APPELLATE PROCEEDINGS
Under the Children’s Code, any party may appeal a judgment of the court. By case law, this has been construed to include an appeal of a judgment adjudicating a child to be abused or neglected, as well as a judgment terminating parental rights. The right to appeal is preserved even when trial counsel does not believe meritorious grounds exist. The right to court-appointed counsel for indigent respondents extends through appeal.

The Code specifies that an appeal be heard at the earliest practicable time. To this end, the Court of Appeals, in consultation with attorneys for CYFD, respondents and children, has developed procedures to expedite these appeals to the maximum extent possible consistent with the due process rights of the parties.

1.4 TIMELINE
In 1997, 2001, 2003 and 2005, the legislature enacted significant changes to the Children’s Code that accelerated the schedule of events in abuse and neglect cases, in order to meet the requirements of the Adoption and Safe Families Act. (See §1.5 below.) This acceleration was intended to reduce the time that children are subject to the uncertainties of the legal system and the instability of substitute care.

In particular, these changes apply at the two most crucial stages of the proceedings. First, in 1997 the time for commencing the adjudicatory hearing was shortened from 90 to 60 days. For children who return home at this stage the saving is obvious. In a large percentage of cases, implementation of a treatment plan cannot be ordered until after adjudication, especially if the respondent contests the petition. While some lapse of time is inevitable, the sooner treatment begins, the sooner it can succeed. Another reason for prompt action is that respondents often are most motivated to regain custody of their children immediately, but delay may dull or divert that desire.

The legislature also accelerated the permanency planning process so that children would not “stay in the system” indefinitely with no true plan of permanency. Under the 1997 amendments to the Children’s Code, the court was required to address the permanency plan within eight months of the dispositional hearing and to revisit the plan if necessary within another three months. The timeline for permanency planning was again changed in 2005. Now the court must conduct a permanency hearing and adopt a permanency plan for the child within 12 months after the child entered foster care. If the permanency plan is reunification, the court must also adopt a plan for transitioning the child back to home and schedule a review hearing within three months.

The process is also accelerated as a result of amendments to the Children’s Code in 2001 and 2003 that require CYFD to file a motion to terminate parental rights when the child has been in foster care for 15 of the previous 22 months. The 15 months actually begin at the adjudicatory hearing, or 60 days after the child was taken into custody, and exceptions to the TPR requirement exist. Nonetheless, the importance of moving toward permanency is clear.

1.5 ADOPTION AND SAFE FAMILIES ACT
While the changes to the timelines described in §1.4 are driven by the needs of children, the enactment of the Adoption and Safe Families Act by Congress in 1997 and the issuance of implementing regulations in 2000 also provided a major impetus to efforts to accelerate the timelines. ASFA does not impose mandates directly on the state or its court system, but it does make the receipt of federal funds for foster care conditional upon compliance with ASFA requirements. This is a significant concern in a state in which seventy five percent of the funds used to make foster care payments for children are federal dollars. While some may not appreciate this approach, all branches of state government have recognized that both state and federal law are driven by the need of children for safety, permanence and well-being.

While most of the changes in the timelines and approaches to permanency outlined in ASFA are mirrored already in the New Mexico Children’s Code, some require special attention. The ASFA regulations provide, for example, that the first court order in the case, which would typically be the ex parte custody order, must contain certain factual findings and that the absence of such findings will result in the loss to the child of federal foster care payments for the duration of the child’s stay in foster care.

The timelines here illustrate some of the basic requirements of the Adoption and Safe Families Act and compare them to the Children’s Code.

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