4.1 INTRODUCTION
The children’s court attorney in a civil abuse or neglect case is an attorney selected by and representing the Children, Youth and Families Department. §32A-1-6(C). The children’s court attorney:

• Represents CYFD in every phase of an abuse or neglect proceeding, from the initial determination regarding whether to file a petition through dismissal.
• Provides Protective Services’ case and social workers with information about state and federal law related to children’s court and interpretation of federal and state law and state regulations.
• Provides general assistance to CYFD in the provision of child protective services.

A number of appellate cases have emphasized the role of the children’s court attorney in ensuring the fundamental fairness of the proceedings with respect to all parties. In Re Pamela A. G., 2006-NMSC-019, 139 N.M. 459; In the Matter of the Termination of Parental Rights of Ronald A., 110 N.M. 454 (1990); State ex rel. CYFD v. Maria C., 2004-NMCA-083, ¶51, 136 N.M. 53. The Supreme Court in Ronald A. concluded that when pursuing termination of parental rights, the children’s court attorney “must seek not only to protect the children involved; they must see to it also that the parents are dealt with in scrupulous fairness.” 110 N.M. at 456. In Pamela A. G. the Supreme Court extended that analysis to the adjudicatory hearing and other early stages of an abuse/neglect case. The Court of Appeals further emphasized this aspect of the children’s court attorney’s role in Maria C., where it explained that CYFD has “a constitutional duty to ensure that a parent’s due process rights are protected.” Maria C., ¶50.

4.2 STRUCTURE
The children’s court attorneys are employees of CYFD. The Director of Protective Services is the immediate supervisor of the Chief Children’s Court Attorney, who serves as lead children’s court attorney and supervises the managing attorneys in the department’s five regional offices in Albuquerque, Las Cruces, Roswell, Rio Rancho, and Santa Fe. Children’s court attorneys are housed in most CYFD county offices.

4.3 FILING AN ABUSE OR NEGLECT PETITION
When CYFD is contemplating filing an abuse or neglect petition, the case worker must consult with the children’s court attorney. Consultation generally occurs at an internal meeting that includes the investigative case worker and may include the permanency planning worker who would be assigned to the case if filed, the investigative and permanency planning workers’ supervisors, the county office manager and the children’s court attorney. If the children’s court attorney is not present at the meeting, the case worker will consult with the attorney after the meeting.

The children’s court attorney must sign each abuse or neglect petition and determine and endorse on the petition that filing it is in the best interests of the child. §32A-1-10 and §32A-4-15. In order to make the threshold best interest determination, the children’s court attorney will consider the case worker’s personal observations, the case worker’s interviews of the parents, the children and other collateral sources (e.g., witnesses, extended family), the history regarding the family and the structured decision-making tools completed by the case worker, including a safety assessment.

Working with the case worker, the children’s court attorney ensures that all appropriate persons are named as respondents in the petition. Appropriate persons include those persons with a legal right to the child, who generally will be the child’s mother and father. In addition, CYFD will name as a respondent any custodian of the child. A custodian is defined in CYFD policy as any household member whose participation in treatment is required for the protection of the child.

4.4 REPRESENTATION AT HEARINGS
The children’s court attorney represents CYFD at every hearing in a child protective services case. Working closely with the permanency planning worker, the children’s court attorney is guided by the safety and best interest of the child and the applicable professional standards for attorneys. In the event that the children’s court attorney and the permanency planning worker cannot agree on the most appropriate course of action in a particular case, CYFD has a process for resolving the dispute.

4.5 TERMINATION OF PARENTAL RIGHTS AND PERMANENT GUARDIANSHIPS
When it appears that a child’s permanency plan should be changed from reunification to adoption or permanent guardianship, a meeting is held which includes the permanency planning worker, the supervisor, the children’s court attorney and, when a change of plan to adoption is contemplated, the adoption consultant. If the child’s permanency plan is changed to adoption, the children’s court attorney files or represents CYFD on a motion for termination of parental rights. If the child’s permanency plan is changed to permanent guardianship, the children’s court attorney files or represents CYFD on a motion for permanent guardianship, once there is a prospective guardian.

The social worker and the children's court attorney work together to identify any person who has not been named in the abuse or neglect case yet but who has a potential liberty interest as to the child. If CYFD determines that a previously unnamed person has a protected liberty interest in a relationship to the child, the children's court attorney will add that person to the motion as a respondent.

4.6 LEGAL RISK PLACEMENT
A legal risk placement occurs when a child who is not legally free for adoption is placed for potential adoption with an approved adoptive family. If the social worker and the prospective adoptive parents want to proceed with a legal risk placement, the children’s court attorney prepares a legal risk agreement to be entered into between CYFD and the prospective adoptive parents. This agreement sets out the legal barriers that could interfere with the adoption, as in the situation where a judgment terminating parental rights is on appeal.

4.7 USE OF IMMUNITY AND PROTECTIVE ORDERS
The Abuse and Neglect Act authorizes only the children’s court attorney to apply for use immunity for a respondent during an abuse or neglect proceeding. §32A-4-11. Similarly, the Children’s Court Rules authorize only the children’s court attorney to apply for immunity for any other person called to testify or produce records, documents or other objects. Rule 10-110. See the discussion of immunity in Handbook §27.4.

4.8 DISCLOSURE OF INFORMATION UNDER RULE 10-308
Children’s Court Rule 10-308 requires that CYFD disclose certain information at least 15 days before an adjudicatory hearing or a termination of parental rights hearing. The children’s court attorney must file a certificate stating that the required information has been produced and acknowledging a continuing duty to disclose. .See Handbook §26.3.2 for more detail. Failure to comply with disclosure subjects CYFD to possible sanctions. See, NMRA 10-113(D) and 10-137(B).

4.9 INVOLUNTARY PLACEMENT FOR MENTAL HEALTH OR DEVELOPMENTAL DISABILITIES SERVICES
When involuntary mental health or developmental disabilities residential services are appropriate for a child in CYFD’s custody, the social worker will ask the children’s court attorney to file a petition for involuntary placement under the Children’s Mental Health and Developmental Disabilities Act, as amended in 2007, §§32A-6A-1 to 32A-6-29. The Abuse and Neglect Act provides that, when an abuse or neglect case is pending, the hearing on the involuntary placement petition may be held as part of the abuse or neglect case or may be heard in a separate proceeding. §32A-4-23(D)

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