16.1 PURPOSE
The purpose of the dispositional hearing is to adopt a treatment plan, establish legal custody of the child, set visitation arrangements if appropriate, and to determine appropriate findings of fact as required by statute.

16.2 TIMELINE
The dispositional hearing can proceed on two different tracks:

• The disposition may follow immediately after the adjudication.
  
  This is the most efficient approach and should be anticipated where the parties have reached agreement at the pre-adjudicatory meeting, or later announced their intention to enter into a plea of no contest. The advantages are that the parties are already in attendance before the court and no further scheduling is necessary. It would be premature, however, if the initial assessments or evaluations have not been completed or if the treatment plan has not yet been formulated with sufficient specificity.
  
  If the dispositional hearing is not held in conjunction with the adjudicatory hearing, it must commence within thirty days after conclusion of that hearing. §32A-4-22(A).
  

16.3 INITIATION AND NOTICE
If disposition does not immediately follow adjudication, CYFD is responsible for scheduling a setting and notifying the parties of the dispositional hearing. Again, it is preferred practice to announce the setting in open court when the respondent is present, at the close of the adjudicatory hearing.

16.4 PARTICIPANTS
In addition to all the parties and attorneys who participated in the adjudicatory hearing, this phase expands to include contributions from the court appointed special advocate (CASA). This is the point at which the CASA volunteer may begin submitting reports to the court. When the CASA submits a report, he or she is supposed to serve the report on the parties, but not the court, at least five (5) days prior to the hearing at which it will be considered. Rule 10-121(F).

This is also one of the points at which the foster parent may want to get involved. The Abuse and Neglect Act specifically requires that the foster parent, preadoptive parent or relative providing care for the child be given “notice and an opportunity to be heard at the dispositional phase.” §32A-4-20(C).

Abuse and neglect hearings are closed to the general public. See Handbook §13.4.

16.5 ISSUES TO BE CONSIDERED

16.5.1 LEGAL CUSTODY
At this point, the child has been adjudicated an abused or neglected child and it is up to the court to determine who will have legal custody of the child. The court will consider whether it is safe for the child to remain in or return to the home, or whether the child’s best interest demands that custody be in CYFD or the non-custodial parent.

In the most extreme cases, the court may conclude that the family is not likely to be rehabilitated and that efforts should be devoted to some other permanent plan for the child. This route is to be expected where the court entered a finding of aggravated circumstances at the adjudicatory hearing, although the court could order that CYFD implement a treatment plan despite the finding. §32A-4-22(C).

16.5.2 TREATMENT PLAN
CYFD will propose a treatment plan, which should already have been discussed by the parties at the pre-adjudicatory meeting. The proposed plan may or may not be a matter of contention at the hearing. See §16.7 below.

16.5.3 REASONABLE EFFORTS
The court is required to consider whether reasonable efforts have been made to preserve and reunify the family, with the paramount concern being the child’s health and safety. Under certain circumstances, the court may also decide that reasonable efforts are not necessary. See §16.11.2 below.

16.6 PREDISPOSITION
A treatment plan is only as effective as the assessment underlying it. Section 32A-4-21 provides that CYFD will do a predisposition study and submit the study and report in writing to the court. The Children’s Code requires the department to study the situation of both child and family from a variety of viewpoints, to report extensively on the situation, and to propose a treatment plan.

The predisposition study must contain:

1. a statement of the specific reasons for intervention by CYFD or for placing the child in CYFD’s custody and a statement of the parent’s ability to care for the child in the parent’s home without causing harm to the child;
2. a statement of how an intervention plan is designed to achieve placement of the child in the least restrictive setting available, consistent with the best interests and special needs of the child, including a statement of the likely harm the child may suffer as a result of separation from his parents, and a statement of how the intervention plan is designed to place the child in close proximity to the parent’s home without causing harm to the child due to separation from parents, siblings or any other person who may significantly affect the child’s best interest;
3. the wishes of the child as to his custodian;
4. whether the child has a family member who, after study by CYFD, is determined to be qualified to care for the child;
5. a description of services offered to the child, his or her family and his or her foster care family and a summary of reasonable efforts made to prevent removal of the child from the family or reasonable efforts made to reunite the child with family;
6. a description of the home or facility in which the child is placed and the appropriateness of the child’s placement;
7. the results of any diagnostic examination or evaluation ordered at the custody hearing;
8. a statement of the child’s medical and educational background;
9. if the child is an Indian child, whether the placement preferences set forth in ICWA or the placement preferences of the child’s Indian tribe were followed and whether the child’s treatment plan provides for maintaining the child’s cultural ties;
10. a treatment plan that sets forth steps to ensure that the child’s physical, medical, psychological and educational needs are met and that sets forth services to be provided to the child and his or her parents to facilitate permanent placement of the child in the parent’s home; and
11. for children 16 years of age and older, a plan for developing the specific skills the child requires for successful transition into independent living as an adult, regardless of whether the child is returned to his parent’s home. §32A-4-21(B).

CYFD has developed a form to promote consistency in this process and assure compliance with the statute.

The department’s predisposition report must be filed with the court and served on counsel for all of the parties, including the youth attorney and the GAL, at least five (5) days prior to the dispositional hearing. (In practice, the dispositional hearing is held concurrent with the adjudicatory hearing, so the report would be circulated before the adjudicatory hearing. It would not be filed with the court in advance.) When served, the report should be accompanied by copies of any social, diagnostic or other predisposition reports ordered by or submitted to the court, as well as a proposed disposition order. §§32A-4-18(E) and32A-4-21(C); Rule 10-321(B).

CYFD’s study and report should form the starting point for the court, but not just be “rubber stamped.” They are served on the parties prior to the hearing so that all will have had the opportunity to supplement, clarify or challenge the particulars. All concerned need to compare the study and report with the proposed treatment plan to ensure that they are consistent with and complement each other.

16.7 EFFECTIVE TREATMENT PLAN
The treatment plan is the core of the dispositional hearing. Section 32A-4-21(B)(10) requires a treatment plan that sets forth steps to ensure that the child’s physical, medical, psychological and educational needs are met and that sets forth services to be provided to the child and his parents to facilitate permanent placement of the child in the parent’s home. The court contemplates the plan, considers the input and perspective of the parties and the CASA, reviews the respective roles and responsibilities of different participants for the success of the plan and orders its implementation, either as submitted or as amended by the court on its own or at the request of a party.

The treatment plan should focus on the parental behavior that caused the child’s removal from the home and the change in behavior needed for the parent to properly care for the child. However, it is important to remember that the plan is not just concerned with correcting the conditions that caused the child to come into care, although it should definitely address these issues. When out-of-home placement is proposed, the plan should also provide specific measures for the child that will facilitate permanent placement in the parent’s home, including visitation arrangements and medical, educational, and therapeutic services for the child. §32A-4-21(C)(10).

16.8 PLACEMENT PREFERENCES FOR INDIAN CHILDREN
For any Indian child, the court must verify that the child’s placement complies with the preferences of the Indian Child Welfare Act or of the child’s tribe and that the child’s plan provides for maintaining the child’s cultural ties. §32A-4-22(A)(10); see also Handbook §39.3.

Reflecting the ICWA requirements of 25 U.S.C. §1915, §32A-4-9(A) provides that an Indian child accepted for foster care placement must be placed in the least restrictive setting that most closely approximates a family in which his special needs, if any, may be met. The child must also be placed within reasonable proximity to his or her home, again taking into account any special needs the child has. Preference shall be given, in the absence of good cause to the contrary, to a placement with:

• A member of the child’s extended family, as defined by the tribe;
• A foster care home licensed, approved and specified by the child’s tribe;
• An Indian foster care home licensed or approved by an authorized non-Indian licensing authority; or
• An institution for children approved by the tribe or operated by an Indian organization that has a program suitable to meet the child’s special needs.

If these preferences are not followed or if the child is placed in an institution, a plan must be developed to ensure that his or her cultural ties are protected and fostered. §32A-4-9(B).

16.9 EVIDENCE
The Rules of Evidence do not apply to dispositional hearings. See Evidence Rule 11-1101(D)(2). All relevant and material evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value even though not competent had it been offered during the part of the hearings on adjudicatory issues. §32A-4-20(I).

16.10 BURDEN OF PROOF
CYFD has the burden of proof on the issues of custody and treatment, with the standard being simple preponderance of the evidence.

A finding that it would be futile to make further efforts toward family reunification may be made (see §16.11.2 below) upon a showing by a preponderance of the evidence. Note, however, that futility will have to be proven again by clear and convincing evidence if relied upon as a ground for the termination of parental rights (see Handbook §22.4).

16.11 FINDINGS AND ORDER

16.11.1 §32A-4-22
At the conclusion of the dispositional hearing, the court must make and include in its judgment findings of fact on the following:

1. the interaction and interrelationship of the child with his or her parent, siblings and any other person who may significantly affect the child's best interest;
2. the child's adjustment to his home, school and community;
3. the mental and physical health of all individuals involved;
4. the wishes of the child as to his or her custodian;
5. the wishes of the child's parent, guardian or custodian as to the child's custody;
6. whether there exists a relative of the child or other individual who, after study by the department, is found to be qualified to receive and care for the child;
7. the availability of services recommended in the treatment plan prepared as a part of the predisposition study in accordance with the provisions of §32A-4-21;
8. the ability of the parent to care for the child in the home so that no harm will result to the child;
9. whether reasonable efforts were used by CYFD to prevent removal of the child from the home prior to placement in substitute care and whether reasonable efforts were used to attempt reunification of the child with the natural parent; and
10. if the child is an Indian child, whether the placement preferences set forth in the Indian Child Welfare Act or the placement preferences of the child's Indian tribe have been followed and whether the Indian child's treatment plan provides for maintaining the Indian child's cultural ties. When placement preferences have not been followed, good cause for noncompliance must be clearly stated and supported.

The dispositional hearing is the hearing at which the court approves the treatment plan, orders CYFD to implement the plan, and orders the parents, guardian or custodian to cooperate with the plan. §32A-4-22(C). If the parties agree, the court may adopt the treatment plan by attachment and incorporate it by reference into the order.

16.11.2 REASONABLE EFFORTS
In connection with approval of the treatment plan, the Children’s Code requires that reasonable efforts be made to preserve and reunify the family, with the paramount concern being the child’s health and safety. However, the court may determine that reasonable efforts are not required to be made if the court finds:

• the efforts would be futile; or
• the parent, guardian or custodian has subjected the child to aggravated circumstances. §32A-4-22(C).

The 2005 amendments to §32A-4-22(C) deleted a prior involuntary termination of parental rights from this list of reasons. However, a prior involuntary termination of parental rights remains an aggravated circumstance, proof of which may result in a determination that reasonable efforts are no longer required. Although the result is the same under the old and new statutes, the statutory change now requires CYFD to plead and prove a previous termination as an aggravated circumstance.

If the court finds that no further efforts at reunification are required, the court must conduct a permanency hearing within thirty (30) days of that determination. CYFD must make reasonable efforts to implement and finalize the permanency plan in a timely manner. §32A-4-22(J).

16.11.3 CUSTODIAL DETERMINATION
Under §32A-4-22(B), the court may enter its judgment making any of the following dispositions to protect the welfare of the child. The court may:

• permit the child to remain with his parent, guardian or custodian, subject to those conditions and limitations the court may prescribe;
• place the child under CYFD’s protective supervision; or
• transfer legal custody to any of the following:
  • the non-custodial parent, if it is found to be in the child’s best interest;
  • an agency responsible for the care of neglected or abused children; or
  • a child placement agency willing and able to assume responsibility for the education, care and maintenance of the child and licensed or otherwise authorized by law to receive and provide care for the child

“Protective supervision” gives CYFD “the right to visit the child in the home where the child is residing, inspect the home, transport the child to court-ordered diagnostic examinations and evaluations and obtain information and records concerning the child.” §32A-1-4(S) (added in 2005). Protective supervision allows CYFD to remain actively involved in implementing the terms of the treatment plan and to have access to the child to assure the child’s safety even though the child has been returned to the parent’s custody.

Any award of custody of the child should be supported by a finding that such award is in the child’s best interest.

16.11.4 VISITATION
If the child is not allowed to remain with his or her parent, guardian or custodian, any parent, guardian or custodian must be given reasonable rights of visitation as determined by the court, unless the court finds that the child’s best interests preclude visitation. If the court finds that visitation is not in the best interest of the child, this finding should appear expressly in the order. §32A-4-22(D).

The court may also order reasonable visitation between the child and the child’s siblings or any other person who may significantly affect the child’s best interest, if the court finds the visitation to be in the child’s best interest. §32A-4-22(E).

16.11.5 INDIAN CHILD
If the child is placed in CYFD’s custody, CYFD must investigate whether the child is eligible for enrollment as a member of an Indian tribe and, if so, CYFD must pursue the enrollment on the child’s behalf. §32A-4-22(I). Also, as noted in §16.8 above, if a child is an Indian child, then the treatment plan and the findings of fact are to report on whether placement preferences are followed and whether the treatment plan provides for maintaining cultural ties.

16.12 CHILD SUPPORT
If the child does not return home, the court is supposed to order the parent to pay the reasonable costs of support and maintenance for the child, to the extent the parent is financially able to pay. The court may use the child support guidelines set forth in §40-4-11.1 to calculate a reasonable payment. §32A-4-26. As a matter of practice, courts often direct the parent to pay child support but let the Child Support Enforcement Division of the Human Services Department set the amount. The court may enforce its orders under §32A-4-26 by use of its contempt power. §32A-4-26(B). How the court issues and enforces a child support order will have implications for future jurisdictional issues concerning child support. See State ex rel. CYFD v. Andree G., 2007-NMCA-156 (decided October 15, 2007).

16.13 DURATION OF JUDGMENT
ndeterminate period not exceeding two years from the date entered. §32A-4-24(A). Prior to the expiration of the judgment, the court may extend the judgment for additional periods of one year if it finds that the extension is necessary to safeguard the welfare of the child or the public interest. §32A-4-24(E).

A judgment vesting legal custody in an individual other than the child’s parent or permanent guardian remains in force for two years from the date entered, unless terminated sooner by court order. § 32A-4-24(B).

A judgment vesting legal custody in the child’s parent or a permanent guardian remains in force for an indeterminate period, until terminated by court order or until the child is emancipated or reaches the age of majority. §32A-4-24(C).

At any time before expiration, a judgment vesting legal custody or granting protective supervision may be modified, revoked or extended on motion by a party or the child’s GAL. §32A-4-24(D). (The attorney for a child 14 or older would make the same motion, not as GAL, but as the attorney for a party, namely the child.)

When a child reaches 18 years of age, all neglect and abuse orders affecting the child automatically terminate. Termination of the orders does not disqualify a child from eligibility for transitional services. §32A-4-24(F).

16.14 CHECKLIST
Click here for a dispositional hearing checklist.

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