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13.1
PURPOSE OF HEARING
As the first court hearing in an abuse or neglect proceeding and the first appearance of the parties before the court, the custody hearing sets the standard and the tone for a process involving the child, the family, the department and the court system. Giving utmost attention to the immediate health and safety of the child, the court must decide who will have legal custody of the child pending the adjudicatory hearing.
Sometimes called the “ten day hearing,” this hearing follows closely upon the filing of the petition. Consequently, a sense of crisis predominates: emotions run high and information is often incomplete. Thus, the first priority is to establish that the respondents understand the nature of the proceedings and their rights. Secondly, it is important to inquire into the factual circumstances surrounding the family, in particular to ascertain any relationship of the child to an absent parent, other relatives, or an Indian tribe.
Finally, the court determines that interim custody in CYFD, or protective supervision by CYFD, is necessary to protect the child’s health and safety because there is probable cause to believe that one or more of the statutory criteria exists. §32A-4-18(D). The court must also consider whether reasonable efforts were made to prevent removal and to make it possible for the child to return to the home. If probable cause is not found, custody is returned to the parents pending adjudication and evaluation.
13.2 TIMELINE
The custody hearing must be held within ten working days from the date the petition is filed. Upon written request of the respondent, the hearing may be held earlier, but in no event less than two days after the date the petition is filed. §32A-4-18(A), Rule 10-303(A), Rule 10-106(A) (not counting Saturdays, Sundays and holidays). CYFD, as the petitioner, is responsible for requesting a setting when filing the petition and the motion for an ex parte custody order.
Sometimes scheduling restrictions permit little latitude in this area. The earlier the hearing, the sooner the child’s needs can be addressed, but the less likely that the parties will be prepared, or in some cases even served or notified of the hearing.
In the case of an Indian child, the custody hearing may not be held until at least ten days after the parents or Indian custodian and the child’s tribe receive notice; an additional 20 days may be granted. 25 U.S.C. §1912(a); see Handbook §39.2.5.
13.3 PARTICIPANTS
The custody hearing is usually conducted by the children’s court judge. It may be conducted by a special master appointed by the court, although the custody order must be signed by the judge prior to taking effect. Rule 10-303(E).
CYFD is responsible for notifying the parties of the hearing. The department is specifically required to give reasonable notice of the time and place of the custody hearing to the child’s parents, guardian, or custodian. §32A-4-18(B) and Rule 10-303(B).
| Practice Note. At a minimum, the hearing should include the children’s court attorney, a CYFD case worker, the child’s GAL or youth attorney, and any other appointed attorneys. The respondent or respondents should appear, but the hearing may proceed in their absence.
In some instances, the respondent is officially served just prior to or at the hearing itself. At other times, the respondent, despite CYFD’s efforts, is not served until after the custody hearing. In these situations, the respondent may be able to request a subsequent custody hearing. |
A child under the age of 14 may be excluded from the hearing if the court finds it is in the child’s best interest. A child who is 14 or older may be excluded only if the court finds there is a compelling reason to do so and states a factual basis for that finding. §32A-4-20(E). The decision as to whether the child should attend may be a complex one. Having the child present in the courtroom could be difficult for the child. On the other hand, the hearing is an opportunity for the judge to see the child for whom very serious decisions are being made.
If the respondent is incarcerated, a transportation order should be obtained to give the respondent an opportunity to be heard. If an order cannot be enforced, as where the respondent is in a prison out-of-state, other means of participation should be developed, such as participation by telephone. If the parent is in federal prison, habeas corpus may be a means of bringing the parent to state court for the hearing, although it is unlikely that there will be enough time before this particular hearing. See State ex rel. CYFD v. Maria C., 2004-NMCA-083, 136 N.M. 53; see also State ex rel. CYFD v. Ruth Anne E., 1999-NMCA-035, 126 N.M. 670, on alternatives to in-person participation and Chapter 22 regarding the due process rights of incarcerated parents in the context of termination of parental rights proceedings.
13.4 HEARINGS CLOSED TO PUBLIC; RECORDS AND INFORMATION CONFIDENTIAL
All abuse and neglect hearings are closed to the general public. Only the parties, their counsel, witnesses and other persons approved by the court may be present. Persons the court finds to have a proper interest in the case or in the work of the court may be present on the condition that they refrain from divulging any information that would identify the child or the family. The media may be admitted so long as they also refrain from divulging identifying information, and so long as they comply with any regulations the court finds necessary for the maintenance of order and decorum and for the furtherance of the purposes of the Children’s Code. §32A-4-20(B)-(D). Where confidentiality cannot be maintained, the media enjoys no statutory right of access. In the absence of a statutory right of access, the children’s court has the discretion under §32A-4-20(D) to decide whether to allow the media to attend the proceedings. Albuquerque Journal v. Jewell, 2001-NMSC-5, ¶5, 130 N.M. 64.
All records and information concerning a party to an abuse or neglect case are confidential and closed to the public, including information disclosed during a closed hearing. §§32A-4-20, 32A-4-33(A). Anyone admitted to a closed hearing who intentionally divulges confidential information heard in a closed hearing, or who intentionally and unlawfully releases information that is confidential under the Abuse and Neglect Act is guilty of a petty misdemeanor. §§32A-4-20(F), 32A-4-33(D).
| Practice Note. As a practical matter, family members, substitute caregivers, and advocates may attend the hearing if there is no objection. Any responsible adult or appropriate relative whom the child knows and trusts can be a potential resource and should be encouraged to come forward. The court may need to balance its interest in an orderly proceeding and the need for confidentiality with the desirability of keeping the extended family part of the solution at this stage of the proceedings. |
13.5 APPOINTMENT OF COUNSEL
The automatic appointment of counsel to represent the parent, guardian or custodian at the inception of the proceeding is valid only until an indigency determination is made at the time of the custody hearing. §32A-4-10. If the respondent is indigent, the appointment continues. Counsel may also be appointed if the court, in its discretion, considers appointment “required in the interests of justice.” §32A-4-10(B).
Supreme Court Rule 10-331(B) on appointment of counsel prohibits an attorney from representing more than one parent “in any proceeding or case that may result in the termination of parental rights.” An attorney retained by multiple respondents should also be alert to the possibility of a conflict. See State ex rel. CYFD v. Tammy S., 1999-NMCA-009, 126 N.M. 664 (decided before Rule 10-331(E) was adopted), on conflicts of interest.
| Practice Note. Courts that contract with particular attorneys to serve as respondent’s counsel should have contracts with at least two different attorneys. |
13.6 ADVISEMENT OF RIGHTS
Respondents must be advised of their rights at their first appearance. §32A-4-10(G). Their first appearance is usually the custody hearing.
The court must inform the respondent of:
- the allegations of the petition;
- the right to an adjudicatory hearing on the allegations of the petition;
- the right to an attorney and, if the respondent cannot afford one, his or her right to have one appointed to represent him or her free of charge; and
- the possible consequences, including termination of parental rights, if the allegations of the petition are found to be true. Rule 10-304.
| Practice Note. Not only is this the first time the respondent has appeared in the case, it may well be the first occasion for this individual to come before the court in any capacity. The judge or special master can anticipate some level of confusion or hostility, or both, on the part of respondent. This can be addressed by clarifying the temporary, provisional nature of the hearing, and by focusing on information gathering and problem solving to address the immediate needs of the child.
In describing the possible consequences, it is crucial for the court to emphasize the child’s need for permanence and resolution, and the accelerated time frames within which change must occur. |
The respondent in a civil abuse or neglect proceeding can be compelled to testify, subject to the privilege against self-incrimination, and the testimony given can be used against the respondent in a later criminal prosecution. If testifying or producing documents is going to be a concern, the respondent may want to consider invoking his or her Fifth Amendment privilege against self-incrimination and offering to testify only if granted use immunity. Only the children’s court attorney can apply for use immunity under §32A-4-11 and Rule 10-111, but the respondent’s attorney may approach the children’s court attorney with the request. Since use immunity orders cannot be issued nunc pro tunc, it is very important that such immunity, if desired, be sought before testimony is to be given or documents produced.
See Handbook §27.4 for an
explanation of use immunity.
13.7 CONDUCT OF THE HEARING
13.7.1 GENERAL
By the time the custody hearing takes place, the child is usually in the temporary custody of CYFD pursuant to an ex parte custody order. Before that, the child may have been taken into emergency custody by a police officer. §32A-4-6(A). Because of the traumatic or exigent circumstances surrounding a child being taken into custody, an early concern is the need for calm and clarity. The court should also consider the need for courtroom security.
If a parent, guardian or custodian appears who is not a party to the petition or an amended petition, and the parent, guardian or custodian is not alleged to have neglected or abused the child, the court may award custody of the child to that person. See Handbook §12.4 for
case law on this subject.
13.7.2 PROBABLE CAUSE
After the advisement of rights, the court addresses 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
- there has been an abandonment of the child 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. §32A-4-18(C), Rule 10-303(C).
13.7.3 TEMPORARY CUSTODY
If the court does not find probable cause, the court must return legal custody of the child to his or her parent, guardian or custodian. If the court finds that there is probable cause, it then needs to determine the custody of the child pending the adjudicatory hearing on the petition. Under §32A-4-18(D), as amended in 2005:
- The first option is return legal custody of the child to his or her parent, guardian or custodian upon such conditions as will reasonably assure the safety and well being of the child, including protective supervision by CYFD. Protective supervision allows CYFD to visit the home where the child resides, to inspect the home, to transport the child to court-ordered diagnostic examinations and evaluations, and to obtain information and records about the child. §32A-1-4(S), added in 2005.
- The second is to award legal custody of the child to CYFD, while making reasonable efforts to preserve the family unity, with the paramount concern being the child’s health and safety. See Handbook §13.7.4 below.
| Practice
Note on Placement. When custody is awarded to CYFD, the agency has the discretion to place the child with the most appropriate caretaker. In some situations, this will result in the child remaining in or returning to physical placement in the home, with CYFD able to remove the child without additional legal action if the child becomes endangered. In most cases, however, CYFD places children in substitute care.
Practice Note on
Visitation. When CYFD is awarded legal custody and the child is not going to reside with the respondent, the preferred practice is for the parties to arrive at a reasonable arrangement for visitation. Visitation can be monitored both to ensure the safety of the child and to provide additional information as to the nature and quality of parent-child interactions.
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13.7.4 REASONABLE EFFORTS
The section of the Abuse and Neglect Act on custody hearings requires that reasonable efforts be made to preserve and reunify the family, with the paramount concern being the child’s health and safety. §32A-4-18(D). The ASFA regulations also require that the court determine whether reasonable efforts were made by CYFD to prevent removal from the home, and this determination should be made at the custody hearing. If the reasonable effort requirement 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. Hence, it is incumbent upon the parties to introduce evidence sufficient to allow detailed findings regarding whether reasonable efforts were made by CYFD (or were not required to be made) to prevent removal from the home.
| ASFA Note. The ASFA regulations provide for this reasonable efforts finding to be made within 60 days of the date the child is removed from the home. At first, the adjudicatory hearing would appear to be the appropriate deadline in New Mexico. However, that hearing is commenced (not necessarily concluded) within 60 days of service of the petition, not removal of the child. The reasonable efforts finding needs to be made earlier if the child is to remain eligible for Title IV-E payments. In fact, the finding could be made even before the custody hearing, in the ex parte custody order, so long as it is explicitly documented. |
13.7.5 EXAMINATIONS AND EVALUATIONS
The custody hearing provides the timeliest occasion for the court to order the respondent or the child, or both, to undergo appropriate diagnostic examinations or evaluations. Copies of the reports must be provided to the parties, but not the court, at least five days before the adjudicatory hearing. §32A-4-18(E); Rule 10-306.1.
| Practice Note. The ordering of exams and evaluations should not be tacked onto the custody order without a discussion in open court. The court should address the proposed assessment plan and the parties should have an opportunity to comment on it. |
Questions of immunity for the respondent undergoing an examination or evaluation should be considered and addressed, if appropriate, before the examination or evaluation begins. See Handbook §27.4.
13.8 INDIAN CHILD
At the custody hearing, there should be an inquiry into whether the child is an Indian child and whether the placement preferences of the Children’s Code have been met. See Handbook §§16.8 and 39.3. A child is an Indian child if he or she is unmarried, under 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(J), 25 U.S.C. §1903(3). If it is unclear whether the child is an Indian child, the court may enter a finding that the child may be subject to the Indian Child Welfare Act and order CYFD to continue its inquiries. See Chapter 39 for more information on ICWA.
If the child is an Indian child, the parties should offer evidence on the domicile or residence of the child. The child’s tribe has exclusive jurisdiction if the child resides or is domiciled on the reservation. 25 U.S.C. §1911(a); State ex rel CYFD in the Matter of Andrea Lynn M., 2000-NMCA-079, 129 N.M. 512; see Handbook §39.2.4.
13.9 STIPULATIONS
Frequently respondents will waive the probable cause hearing and stipulate to interim custody, but enter a denial as to the petition. It is important, however, to keep in mind the need to make a record as described in §§13.10 and 13.11 below.
13.10 EVIDENCE
The Rules of Evidence do not apply to custody hearings. §32A-4-18(F); Rule 11-1101(D)(2).
The fact that the Rules of Evidence do not apply does not mean testimony is not given, and often sworn testimony is given. In fact, there may be occasions requiring sworn testimony. One is where CYFD has not submitted a report and must establish probable cause through witnesses, such as the social worker, police officer, or medical or school personnel.
Sworn testimony may also be necessary regarding efforts to identify, notify or serve parents or other individuals who may have a cognizable interest in the custody of the child. A mother’s declaration, upon penalty of perjury, that an alleged father has not assumed sufficient responsibility for the child to be treated as an acknowledged father should be sufficient for a prima facie showing as to the status of that father. See §32A-5-19 and §32A-5-3(F) and (G) regarding alleged and acknowledged fathers; see also
Handbook Appendix B for definitions.
A third area in which sworn testimony may be advisable is on the subject of reasonable efforts since ASFA regulations require the court’s findings on this subject to be “explicitly documented.” See §13.11 below, as well as §38.4 on ASFA. At the very least, any stipulations should include facts specific enough to meet the ASFA standards on documentation.
13.11 FINDINGS AND ORDER
The court must make and record findings about whether there is probable cause to believe that one or more of the statutory bases exists for giving legal custody to CYFD or returning legal custody to the parent, guardian or custodian with conditions. See §13.7.2 above.
The court must also make a finding as to the efforts made to prevent removal of the child, or to make it possible for the child to return to the home, and whether those efforts were reasonable. See §13.7.4 above. According to the ASFA regulations, the judicial determination must be explicitly documented, made on a case-by-case basis, and stated in the court order. See §38.4 on ASFA. (Note: This determination could conceivably be made earlier, in the ex parte order.)
Finally, a finding that granting custody to CYFD is in the best interest of the child should support any order placing or continuing the child in CYFD’s custody.
The order should reflect the child’s custodial status, including any conditions or limitations concerning visitation, protective supervision, etc. See §13.7.3 above.
| Practice Note. Because subsequent meetings and hearings are subject to a tight timeline, the court should consider setting the pre-adjudicatory meeting, any pretrial conference, and the adjudicatory hearing in open court at the custody hearing. This ensures that the matters are scheduled within the correct timeframe and that the parties are aware of the dates early on. |
13.12 CHECKLIST
For a custody hearing checklist, click here: PDF. |
