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12.1 FILING OF PETITION
The filing of the petition with the district court clerk initiates an abuse or neglect proceeding under the Abuse and Neglect Act, which is part of the Children’s Code. The children’s court attorney is the sole person empowered by statute to file, and then only after determining and endorsing upon the petition that filing it is in the best interest of the child. §32A-4-15. If the child was taken into emergency custody, the petition must be filed within two days of the child being taken into custody. §32A-4-7(D); Rule 10-305.
12.2 JURISDICTION
AND VENUE
12.2.1 JURISDICTION
The Children’s Code establishes a division in the district court for each county known as the “children’s court,” which has exclusive original jurisdiction over abuse or neglect proceedings. §§32A-1-5, 32A-1-8(A). During abuse and neglect proceedings in which New Mexico is the home state under the Uniform Child Custody Jurisdiction and Enforcement Act, §§40-10A-101 to 40-10A-403, the court has jurisdiction over both parents to determine the best interest of the child and to decide matters incident to the court proceedings. §32A-1-8(C).
In cases involving Indian children, the court must inquire into the domicile and residence of the child early in the case. Under the Indian Child Welfare Act, the child’s tribe has exclusive jurisdiction of the matter if the child resides or is domiciled on the reservation, and the children’s court has only emergency jurisdiction to protect the child until the tribe can assume jurisdiction and the child is transferred to that jurisdiction. 25 U.S.C. §1911(a) and 25 U.S.C. §1922; see Handbook §39.2.4 on ICWA’s provisions on jurisdiction. In cases involving other Indian children, the children’s court must transfer the proceeding to the jurisdiction of the Indian child's tribe upon the petition of the child's parent, guardian or tribe, absent good cause to the contrary. The transfer is barred if there is an objection to the transfer by a parent of the child or the child's tribe, and the tribe can decline jurisdiction. §32A-1-9(D), 25 U.S.C. §1911(b); see Handbook §39.2.4.
12.2.2 VENUE
Abuse or neglect proceedings may be brought in the county where the child resides or in the county where the child is present at the time. §32A-1-9(A).
If the case is begun in a court for a county other than the one in which the child resides, the court, on its own motion or on motion of a party made at any time prior to disposition of the case, may transfer it to the court for the county of residence. A similar such transfer may be made if the child’s residence changes during or after the proceeding. Certified copies of all legal and social records pertaining to the proceeding must accompany the case on transfer. §32A-1-9(C).
If there is a change of venue, the original guardian ad litem is to remain on the case until a new guardian ad litem is appointed by the new court, and the new guardian ad litem has communicated with the original one. §32A-1-7(G).
12.3 FORM
AND CONTENT OF PETITION
The petition sets forth the factual basis necessary to confer jurisdiction on the Children’s Court, as well as other pertinent facts concerning the child. It should include information, if known, as to the child’s relationship with family members, Indian tribes and other court proceedings. Section 32A-1-11 should be consulted for specific requirements.
The petition is to be in a form approved by the Supreme Court. Rule 10-305. Allegations of abuse or neglect should be stated with specificity, in language such that respondents can understand the nature of the allegations against them.
Facts which could give rise to a finding of aggravated circumstances should be pleaded separately from the allegations of abuse and neglect. §32A-4-20(G).
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Definitions. “Abused child,” “neglected child,” and “aggravated circumstances” are defined in the Abuse and Neglect Act. See Handbook §§15.5.3 and
15.5.4 for these definitions. |
If a motion for an ex parte custody order is filed, the petition may incorporate by reference factual representations contained in the affidavit submitted with the motion. It is preferred, however, that the petition be able to stand alone, providing sufficient detail to apprise the parties and the courts of the allegations. There should be enough specificity both in terms of the Children’s Code definitions invoked (e.g., abused child, neglected child, sexual abuse) and supporting facts to make any later admission or no contest plea clear.
If the child has been placed in emergency custody, the petition must be filed within two days of the date the child is taken into custody. §32A-4-7(D). Otherwise, a petition may be filed at any time. New allegations or the joinder of additional parties require the filing of an amended petition.
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Calculating Deadlines. If any period of time prescribed or allowed by the Children’s Code, the Children’s Court Rules or an order of the court is less than eleven (11) days, intermediate Saturdays, Sundays and legal holidays are excluded from the calculation. Rule 10-106(A). Hence, if a child is taken into custody on a Friday or Saturday, Tuesday would be the last day for filing the petition. This Handbook will sometimes describe days fewer than eleven as “working days.” |
12.4 PERSONS
NAMED AS RESPONDENTS IN THE PETITION
The parties to an abuse or neglect action are:
- the state (that is, CYFD);
- the parent,
guardian or custodian who has allegedly neglected or
abused the child; and
- the child
(for whom the court will appoint a guardian ad litem).
Rule 10-108(B).
The state may also join as parties the non-custodial parent or parents, the guardian or custodian of the child or any other person permitted by law to intervene. Rule 10-108(C).
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Practice Note. Especially in light of the shortened timelines for abuse or neglect cases, it is usually desirable to join all parents in the case at the earliest opportunity.
CYFD considers naming as a respondent any parent who has a constitutionally protected liberty interest in the care and custody of the child, if there is any viable allegation of abuse or neglect at all. If a parent is not named as a respondent, the court may be making a decision in a vacuum, and a parent not named is generally considered available to take custody of the child. See cases discussed below.
Where the parent is not alleged to have abused or neglected the child, one possibility is to bring the parent into the case as an interested party under Rule 10-108(C). Some fathers are not brought into the case until a motion for termination of parental rights is made, and it may be better to involve them earlier. |
In In the Matter of Mary L., 108 N.M. 702, 705-706 (Ct. App. 1989), the court held that, when the noncustodial parent indicated a desire to have custody of the children, the department was required to either relinquish custody to her or file a legal action to establish its right to custody as against her. At the time the mother requested custody, she had not been joined in the abuse or neglect case. On the other hand, in State ex rel. CYFD in the Matter of A.H., 1997-NMCA-118, 124 N.M. 244, CYFD requested, and was denied, a finding that it was required to release the children to a father who had been dismissed from the case. The Court of Appeals agreed that the department should retain custody of the children. “Given the condition of these children and the extent of their need for services, the Department has a responsibility to investigate even a natural parent when allegations of such abuse have been made.” Id. ¶8. The court distinguished Mary L. on the basis that there was no factual predicate giving rise to any suspicion of neglect or abuse in that case.
12.5 MOTION
FOR EX PARTE CUSTODY
ORDER
Usually, but not always, a motion for an ex parte custody order accompanies the petition. If a motion is filed, it must be supported by a sworn statement of facts, or affidavit, showing that probable cause exists to believe that:
- the
child is a neglected or abused child (see definitions of neglected child and abused child in Handbook §15.5.3);
and
- it is necessary for CYFD to take, or keep, custody because the child is at risk under one or more of the criteria set forth in §32A-4-18(C) (see the list in Handbook §13.7.2). §32A-4-16(A).
The affidavit may be signed by any person who has knowledge of the facts alleged or is informed of them and believes that they are true. §32A-1-10(B). The social worker or supervisor responsible for investigating the allegations customarily signs the affidavit.
The affidavit should provide sufficient factual details about the abuse or neglect found during investigation, and should also document the efforts, if any, made to prevent or avoid removal of the child, or to make it possible for the child to return home. If no efforts were made, the facts should indicate that, under the circumstances, not making efforts was reasonable. In light of the regulations under the Adoption and Safe Families Act, it is very important that the affidavit contain the facts to support detailed findings that continuation in the home is contrary to the welfare of the child. See §12.6 below, as well as Handbook §38.4 on ASFA.
Both the motion and the affidavit must be substantially in the form approved by the Supreme Court. Rule 10-301
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Word of Caution. Some of the Children’s Court forms approved by the Supreme Court have not been amended since the ASFA regulations took effect in March of 2000 and may need to be modified to meet the needs of the case. |
12.6 EX
PARTE CUSTODY ORDER
The Rules of Evidence do not apply to the issuance of an ex parte custody order. Evidence Rule 11-1101(D)(2); §32A-4-16(C).
If the court is convinced that probable cause exists, it may grant the motion and issue an order directing that the child be placed, or remain, in the legal custody of the department. If not, the child must remain in, or be returned to, the custody of the parent.
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ASFA Note. If an order is issued, it is very important that the order contain a finding to the effect that continuation in the home is contrary to the welfare of the child. The consequences of omitting such a finding are serious and cannot be remedied. Under the ASFA regulations, the child will be ineligible for federal Title IV-E foster care funds if such a finding is not made in the first order in the case that sanctions, even temporarily, the removal of the child from the home.
The exact phrase “contrary to the welfare of the child” is not required; comparable language is acceptable. However, the findings must be detailed and must be found in the court order or hearing transcript; the order may not simply incorporate by reference the facts asserted in the affidavit. See Handbook §38.4 and the federal regulations cited therein.
The ASFA regulations also require that the court determine whether reasonable efforts were made by CYFD to prevent removal from the home. This determination could be made in the ex parte order, with the underlying facts stated, based upon sworn affidavits. If the subject of reasonable efforts is not addressed within 60 days of the date the child is removed from the home, the child becomes ineligible for federal foster care payments for the duration of his or her stay in foster care. See Handbook §38.4. |
If an ex parte custody order is issued, the court must schedule the initial custody hearing within ten working days of the date the petition was filed. §32A-4-18(A); see §12.3 on calculating deadlines. The initial custody hearing will determine whether the child will remain in or be placed in CYFD’s custody pending adjudication. See Chapter 13.
Signing or declining to sign an order for ex parte custody is not considered a discretionary act that would preclude disqualification of a judge under the Children’s Court Rules. See Rule 10-112(A).
12.7 APPOINTMENTS
At the inception of the proceeding, the court must appoint:
- a guardian ad litem or, for a child 14 years of age or older, an attorney (“youth attorney”) for the child; and
- counsel for the parent, guardian or custodian of the child. §32A-4-10.
“Youth Attorney”: Under the 2005 amendments to the Children’s Court, a child under the age of 14 receives a guardian ad litem while a child 14 years of age or older receives an attorney. See §32A-4-10. However, the GAL is also a licensed attorney. The difference is that the GAL represents the best interests of the child while the older child receives client-directed representation, just as an adult does. To distinguish between the two attorneys (the GAL for the younger child and the traditional attorney for the youth), it has become common parlance to refer to the latter as a “youth attorney.” |
Generally, the GAL or youth attorney and the respondent’s attorney (or respondents’ attorneys) are appointed as soon as the petition is filed. See Handbook §13.5 regarding counsel for multiple respondents.
In the case of the parent, guardian or custodian, appointed counsel only serves until the initial custody hearing, at which time the court makes an indigency determination. See Handbook §13.5.
12.8 SERVICE
12.8.1 PETITION
The petitioner (CYFD) is responsible for effecting service of the summons, petition and related orders and notices by personal service upon the respondent and upon the child’s guardian ad litem or youth attorney The summons must clearly state that the proceeding could result in termination of parental rights. §§32A-1-12, 32A-1-13, 32A-4-17; Rule 10-104.
If a parent has not been named as a party in the petition, a copy of the petition shall be served on that parent with a notice that the parent may intervene and request custody of the child. Rule 10-305(C).
CYFD must also deliver a copy of the petition to the district attorney. §32A-1-6(C).
12.8.2 EX
PARTE CUSTODY ORDER
For a child not already in CYFD’s custody, the ex parte custody order is to be served on the respondent by a person authorized to serve arrest warrants. §32A-4-16(B).
12.9 INDIAN
CHILDREN
The state’s Abuse and Neglect Act requires that CYFD make reasonable efforts to determine whether the child is an Indian child. §32A-4-6(B). An “Indian child” is defined in the Children’s Code as an unmarried person who is:
- Less than 18 years
of age;
- A member of an Indian tribe or eligible for membership
in an Indian tribe; and
- The biological child of a member of an Indian tribe.
§32A-1-4(K), 25 U.S.C. §1903(4).
If the child is an Indian child, CYFD must notify the child’s tribe when the abuse or neglect petition is filed, using the form of notice required by the Indian Child Welfare Act. §32A-1-14(B) and Rule 10-305(E); see also Handbook Chapter 39 on ICWA. If the child is a member of or eligible for membership in more than one tribe, the tribe with which the child has more significant contacts is considered the child’s tribe for purposes of the Children’s Code. §32A-1-4(L) and the BIA Guidelines, which can be found in Chapter 39.
12.10 CONFIDENTIALITY
OF RECORDS
All records concerning a party to an abuse or neglect proceeding incident to or obtained as a result of an abuse or neglect proceeding or that were produced or obtained during an investigation in anticipation of or incident to such a proceeding are confidential and closed to the public. Social records, diagnostic evaluations, psychiatric or psychological reports, videotapes, transcripts and audio recordings of a child’s statement of abuse, and medical records are examples of records that are confidential. §32A-4-33(A).
These records may only be disclosed to the parties and the following categories of people:
- Court personnel.
- Court appointed special advocates (CASAs).
- The child’s guardian ad litem (GAL).
- The attorney representing the child in an abuse or neglect action, a delinquency action or any other action under the Children’s Code.
- CYFD personnel.
- The local citizen review board (CRB).
- Law enforcement officials, except when use immunity is granted under §32A-4-11 (see Handbook §27.4).
- District attorneys, except when use immunity is granted as above.
- Any state government social services agency in any state. • Persons or entities of an Indian tribe authorized to inspect records under ICWA.
- Persons or entities of an Indian tribe authorized to inspect records under ICWA.
- The current or prospective foster parent for the child, where the records concern the social, medical, psychological or educational needs of the child.
- School personnel, if the records concern the child’s social or educational needs.
- Health care or mental health care professionals involved in the evaluation or treatment of the child, the child’s parents, guardian, custodian or other family members.
- Protection and advocacy representatives pursuant to certain federal laws.
- Children’s safehouse organizations conducting investigatory interviews of children on behalf of law enforcement or CYFD.
- Any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court. §32A-4-33(B).
Anyone who intentionally and unlawfully releases any information or records closed to the public is guilty of a petty misdemeanor and subject to imprisonment in the county jail for up to six months, to the payment of a fine of up to $500, or both. §32A-4-33(D); §31-19-1.
The 2005 amendments to §32A-4-33 provide for CYFD to promulgate rules for implementing the statute’s provisions. See §32A-4-33(F). |
