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17.1 PURPOSE
Because of the short time frame for resolving cases, the purpose of the initial judicial review hearing is to make sure that everyone is engaged in the treatment plan. If good assessment and treatment planning was done in conjunction with the dispositional hearing, there should be no need to make major changes to the treatment plan. If adjustments need to be made, however, this is the time to make them.
The initial judicial review hearing provides the best, and often the only, opportunity to test how the treatment plan is performing in practice, to identify obstacles and to modify or fine tune the plan as necessary. From a motivational standpoint, it represents the last chance for the court to encourage or admonish the respondent prior to the permanency hearing.
17.2 TIMELINE
The initial judicial review hearing must be held within 60 days of the disposition, regardless of whether the dispositional hearing was held in conjunction with the adjudicatory hearing or at some time thereafter. §32A-4-25(A).
| Practice Note. Some children’s court judges have also used what they call “compliance hearings.” These hearings have many of the same characteristics as a judicial review but are held with greater frequency, in some cases once a month, to allow the court and the parties to check in with each other and address any problems as they arise. Not in the Children’s Code or rules, these hearings may be scheduled at any time, at the request of a party or as the court deems necessary. Because of the burden on the parties that these may impose, the court should be careful to minimize formal reporting requirements and to avoid holding the hearings too frequently. |
17.3 INITIATION AND NOTICE
As with the earlier hearings in an abuse or neglect case, CYFD has the responsibility for requesting a date for the judicial review and notifying the parties. Rule 10-325(H). The children’s court attorney must notify the parties, the child’s guardian ad litem, the child’s CASA, the local citizen review board, or CRB, and the child’s foster parent or substitute care provider of the time, place and purpose of the hearing. §32A-4-25(C). The notice to foster parents, pre-adoptive parents and relative caregivers must expressly inform them of their right to be heard at the review. Rule 10-105.3.
CYFD has a specific obligation to send the CRB a copy of the adjudicatory order and the dispositional order at the same time it sends notice of the judicial review. §32A-4-25(A).
| Practice Note. It is the preferred practice to announce the setting of the initial judicial review hearing in open court at the previous hearing, when the respondent is present. At this point, the previous hearing was probably the dispositional hearing. |
17.4 PARTICIPANTS
Participants in the review include the parties and their attorneys, the child’s guardian ad litem, foster and pre-adoptive parents, treatment providers, and witnesses when necessary and appropriate. §32A-4-25.
A child under 14, although a party, may be excluded from the hearing if it is in the child’s best interests. The child who is 14 or older may be excluded only if the court finds that there is a compelling reason for exclusion and states the factual basis for this finding on the record. §32A-4-20(E), added in 2005.
The CRB representative is permitted to attend and comment to the court. §32A-4-25(A). The CASA often presents findings and recommendations by written reports and/or oral reports to the court, although this may vary from court to court. See Chapter 9 on court appointed special advocates.
17.5 CONDUCT OF THE HEARING
At the initial judicial review, the parties must demonstrate to the court efforts made to implement the treatment plan approved by the court in its dispositional order. The court then determines the extent to which the plan has been implemented and makes any supplemental orders necessary to assure compliance with the plan and the safety of the child. §32A-4-25(A).
In the more thorough hearing, the court will measure the extent and quality of the respondent’s compliance with each specific requirement of the plan. It will also consider any impediments that have been identified and any progress that has been made. The court will make such revisions to the plan as are necessary. The court also reviews the child’s adjustment to placement, any change in the ability of the parent to meet the needs of the child, the quality and consistency of visitation and any other matters touching on the child’s welfare.
17.6 EVIDENCE
The court may admit testimony by any person given notice of the hearing who has information about the status of the child or the status of the treatment plan. §32A-4-25(E). The Rules of Evidence do not apply to a judicial review hearing. §32A-4-25(E); Evidence Rule 11-1101(D)(2).
The fact that the Rules of Evidence do not apply does not preclude the taking of evidence with some semblance of courtroom formality. The proceeding is a “hearing,” not a “meeting” or “conference,” and the ramifications for parents of not complying with the treatment plan or working to change their behavior can be enormous.
There is some debate over the level of formality required. For example, in some jurisdictions, the children’s court attorney makes an oral presentation based on the written reports, or the CYFD social worker gives an oral report of the status of the case without providing formal testimony. In other courts, the children’s court attorney puts the social worker on the stand. Putting the social worker on the stand is suggested as the preferred practice. See summary in Handbook
§21.7.1 of State ex rel. CYFD
v. Vanessa C., 2000-NMCA-025,
128 N.M. 701.
17.7 FINDINGS AND ORDER
The Children’s Code requires that the court make findings of fact and conclusions of law at the conclusion of the hearing. §32A-4-25(F).
The court’s findings should address the reasonableness of CYFD’s efforts to implement the treatment plan, the degree of compliance by the respondent, and whether continuation of custody in CYFD is in the best interest of the child. The court may make any supplemental orders necessary to assure compliance with the treatment plan and to protect the child. §32A-4-25(A).
If the child is an Indian child, the court must determine during review of the dispositional order whether the placement preferences set forth in the Indian Child Welfare Act or the placement preferences of the child’s tribe were followed and whether the child’s treatment plan provides for maintaining the child’s cultural ties. When placement preferences have not been followed, good cause for noncompliance must be clearly stated and supported. §32A-4-25(G).
17.8 CHECKLIST
Click here
for an initial judicial review checklist. |
