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3.1
BEST INTERESTS OF THE CHILD
At every stage in the proceedings, the court must make and record findings that the proposed treatment or permanency plan is in the best interest of the child. While everyone agrees that the child’s best interest is the overarching concern in every proceeding, it is a term that is neither defined in the statutes nor easily susceptible of definition. Rather than a goal to be achieved or a treasure to be discovered, it might be more accurate to think of it as a lens through which the entire proceeding should be viewed, or a touchstone against which to test every decision as to placement and permanency.
It should be mentioned that the court may not be in a position
to choose, in some ultimate sense, what is "best" for the
child, but rather to determine whether what is proposed
would tend more to further, rather than to hinder, the best
interest of the child. See, In the
Matter of the Adoption of J.J.B., 119 N.M. 638 (1995). Every case commences with
a family in crisis, a child in need or even in peril. Some
damage is inevitable. Thus, almost invariably, alternatives
must be selected and decisions driven on the basis of inflicting
the least additional trauma.
Finally, the discretion of the children’s court to act in the best interest of the child, although broadly equitable in nature, is not boundless. See, e.g., In the Matter of the Adoption of Francisco A., 116 N.M. 708 (Ct. App. 1993) (Hartz, J., dissenting.) While the best interest standard provides an additional safeguard for the child, it is not a substitute for the substantive requirements set forth in the Children’s Code. In terms of procedure, the child’s best interest is protected through the appointment of and zealous representation by the GAL or youth attorney, whose duties and responsibilities are described more fully in Chapter 6. In general, the best interest of the child becomes the common denominator for all of the participants, who may differ in their views of the details or the best way to arrive at the desired result.
3.2
REASONABLE EFFORTS
3.2.1
REUNIFICATION
The Children’s Code states that “[t]he child’s health and safety shall be the paramount concern” but also mandates that CYFD attempt “to preserve the unity of the family whenever possible.” §32A-1-3(A). Even where CYFD makes a decision to seek legal custody of the child, “reasonable efforts shall be made to prevent or eliminate the need for removing the child from the child’s home, with the paramount concern being the child’s health and safety.” §32A-4-7(D).
The requirement that CYFD make reasonable efforts remains operative throughout much of the life of a case. The court needs to make a finding early in the proceedings regarding what efforts were made, either to prevent removal or to make it possible for the child safely to return to the home. These efforts must be explicitly documented and reflected in the court order. If reasonable efforts are not made, under the Adoption and Safe Families Act (ASFA) CYFD may forfeit its federal funding for foster care for the child. In addition, one of the three grounds for terminating parental rights would not be met if the department has not made “reasonable efforts … to assist the parent in adjusting the conditions that render the parent unable to properly care for the child.” §32A-4-28(B).
In State ex rel. CYFD v. Patricia H., the Court of Appeals affirmed a termination of parental rights, finding sufficient evidence of reasonable efforts despite some concern about delay on the part of CYFD. “ASFA has had a significant impact upon the State’s responsibility to provide services to children and families, which consequently informs our contemporary understanding of what constitutes reasonable efforts to assist a parent before the State may resort to termination. The fifteen-month period described in ASFA for ‘time-limited reunification services’ provides us some guidance in how we assess the duration of reasonable efforts under state law.” 2002-NMCA-61, ¶26, 132 N.M. 299, 304.
3.2.2 FINALIZING A
PERMANENCY PLAN FOR A CHILD
As the case progresses, the department’s efforts broaden into efforts to finalize a permanency plan for the child. The point is always to establish permanency for the child, whether through the goal of return home or through some other feasible permanency goal, or both in the alternative. Within twelve months of the time the child is considered to have entered foster care, the court must determine a permanency plan for the child. CYFD must also be able to demonstrate to the court that it has been making reasonable efforts to finalize the permanency plan in effect. The court must make a determination of reasonable efforts at least once every 12 months that the child is in foster care. This ties in very closely with the discussion both of permanency planning and of concurrent planning later in this chapter.
3.2.3
AGGRAVATED CIRCUMSTANCES
In ASFA, Congress codified a principle that had been operative in child protection and reflected in judgments for some time, namely, that in some instances it may never be safe for a child to return to the family. Severe or chronic injury to the child, or to another family member, may give rise to an unacceptably high risk of recurrence. The Children’s Code sets out specific instances of conduct that, if proven, can eliminate the need to attempt reunification. A finding by the court that aggravated circumstances exist can lead to an order that no further efforts be attempted to return the child to the home and that another plan be identified to provide the child a stable future.
In the first challenge to the state’s aggravated circumstances provisions adopted in 1999, the Court of Appeals upheld their constitutionality. The court, citing the legislative history of ASFA and cases from other states, found that the statute does not create a presumption of unfitness at the TPR trial but rather gives the trial court discretion not to require reunification efforts, if warranted by all the relevant facts. “[ASFA], in eliminating the requirement of reasonable efforts under certain circumstances and in requiring the states to follow suit …, was responding to the perceived excesses in the application of the reasonable efforts requirement.” State ex rel. CYFD v. Amy B., 2003-NMCA-017, ¶7, 133 N.M. 136.
3.3 PERMANENCY PLANNING
Permanency planning is not a new idea in child welfare, but it has been made increasingly important in view of the accelerated timetables established by statute. Historically the emphasis was on protection, and children lingered indefinitely in foster care. Although they may have had a plan of “return home,” there was little impetus to accomplish that goal by a date certain, and seldom even any measure of compliance necessary on the part of the parent.
Now, every child must have a plan, not just an ideal destination, but a clearly delineated direction and measurable means to get there. With the passage of ASFA, states are required to develop and implement a permanency plan for every child, to be determined by the court. The hearing at which the permanency plan is brought to the court for review must be held within 12 months of the date the child is considered to have entered foster care and at least once every 12 months while the child is in foster care. This requirement is now part of the Children’s Code. See §32A-4-25.1(E).
Previously, it was assumed that the plan for every child was to return home until it was shown, after the elapse of an extended period of time, that the plan was not viable. ASFA requires that the permanency hearing begin within 30 days of a judicial determination that aggravated circumstances exist and no further efforts are required toward reunification. This provision too is reflected in the current Children’s Code, in the sections on disposition and judicial review. See §§32A-4-22(J) and 32JA-4-25(K).
3.4 CONCURRENT PLANNING
States may engage in concurrent planning to effectuate permanency. The New Mexico Children’s Code now requires concurrent planning by the time a motion to terminate parental rights is filed, although in practice concurrent planning may begin much earlier. §32A-4-29(F). According to this concept, reasonable efforts to reunify families may proceed simultaneously with efforts to identify and implement a permanent alternative if reunification should prove unsuccessful. In the past, little attention was given to these secondary scenarios, and then only after too much time had elapsed. For example, in the past the adoptive placement process could not commence until the child was legally “freed” for adoption and, even after parental rights had been terminated, a case could continue for months on appeal, postponing any efforts to find the child a permanent home.
Some of the consequences of these delays were mitigated in practice due to the high frequency of “foster parent conversions,” situations in which the foster parents decide to adopt their foster child. This meant that the child did not have to be moved between temporary and permanent placements, even when the legal parameters changed. Specifically, CYFD has attempted to identify immediately those cases at greatest risk, and to seek placements for those children in homes likely to become permanent.
Even in cases where reunification remains the primary goal, attention need not center exclusively on the respondents. One major thrust of recent legislation has been to expand the formal role of foster parents. In terms of procedure, they are to be given notice of every hearing where the child’s placement (or adjustment to it) is at issue. In terms of social work, foster parents, particularly relatives, are encouraged to assist the family in the formulation of a plan for permanency. This could take the form of mentoring or direct assistance with parenting issues; it could entail respite or other support to prevent a parent from feeling overwhelmed; or it could include a commitment to provide a permanent alternative home for the child, with or without an ongoing relationship between respondent and child.
3.5
LEGAL CUSTODY AND PLACEMENT
The term “legal custody” is defined in the Children’s Code. It should be read in harmony with the definitions of “guardian” and “parent.” Whoever has legal custody of a child is empowered to make decisions regarding, among other things, where and with whom the child shall live, that is, the physical placement of that child. If legal custody is given to CYFD, placement is in the discretion of CYFD and not the court; CYFD’s placement decisions are reviewable by the courts under the abuse of discretion standard. The term “physical custody” can confuse the two concepts and is no longer used.
The significance of the concept of “legal custody” as distinct from “placement” is that it clarifies the distinction between the caretaker and the decision-maker for the child. In certain situations, a parent may be able to provide one or the other of these functions, but not both. For permanency planning purposes, the participants need to evaluate the two functions separately. For example, a parent who is incarcerated and unable to provide physically for the child may yet be able to remain legally authorized to care for the child. Conversely, a parent could suffer from substance abuse or mental illness rendering him or her incapable of exercising appropriate judgment, but might still have a viable, loving relationship with the child and be able to meet some of that child’s needs.
3.6
KEY PRINCIPLES FOR PERMANENCY PLANNING FOR CHILDREN
In July of 1999, the National Council of Juvenile and Family Court Judges approved a statement of principles called the Key Principles for Permanency Planning for Children. Broader than a discussion of permanency plans, the statement is a vision intended to help guide the courts and other members of the child welfare community as they strive to serve the best interests of abused and neglected children. Click here to
see the statement of principles. |
