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19.1 PURPOSE OF HEARING
The purpose of permanency hearings in general is to compel a resolution of the case so the child does not remain indefinitely “in the system.” The court conducts a permanency hearing to determine what permanency plan is in the child’s best interest. §32A-4-25.1; Rule 10-325. The court must conduct an initial permanency hearing and then conduct permanency hearings at least annually. §32A-4-25.1(F).
19.2 TIMELINE
Under the 2005 amendments to the Children’s Code, the initial permanency hearing must be conducted within the earliest of the following events:
- 6 months after the initial judicial review hearing (§32A-4-25.1(A)); or
- 30 days after a judicial determination that reasonable efforts toward reunification are not required (§32A-4-25(K)); or
- 12 months of the child entering foster care (§32A-4-25.1(A)). A child enters foster care on the earlier of:
- The date of the first judicial finding that the child has been abused or neglected, or
- 60 days from the date when the child was removed from the home. (§32A-4-25.1(E)).
If, for example, the court makes a finding of aggravated circumstances at the adjudicatory hearing and decides at the dispositional hearing that reasonable efforts are not required, then the court must hold a permanency hearing within thirty days of that second hearing. If the adjudicatory hearing is not completed within 60 days from the date when the child was removed from the home, then the first permanency hearing must be held within 12 months of the 60th day from the date when the child was removed from the home. This could be far earlier than six months after the initial judicial review. If the proceedings follow the general time frames set out in the Code, the typical scenario is that the permanency hearing is held within six months of the initial judicial review.
ASFA Note. New Mexico law conforms with ASFA. §32A-4-25.1(E) was enacted to meet ASFA requirements on the timing of a permanency hearing, and the timing requirements of this section should take precedence over the timing requirements in other sections. As a condition of state participation in Title IV-E, ASFA requires that there be a hearing at which a permanency plan is adopted by the court. This hearing must be held within twelve months of the date the child is considered to have entered foster care, which is the date the child is adjudicated abused or neglected or the date that is 60 days after the child was removed from the home, whichever occurs first. (If there is a judicial determination that reasonable efforts to reunify the child and family are not required, then the hearing must be held within 30 days of that determination.). See Handbook §38.4. |
19.3 INITIATION AND NOTICE
The children’s court attorney is responsible for requesting the hearing and providing notice. Notice must be given to the parties, the child’s GAL or youth attorney, the child’s CASA, the local CRB, and the foster parent, preadoptive parent or relative providing care for the child. §32A-4-25(G); Rules 10-105.3 and 10-325(B).
19.4 PARTICIPANTS
Participants in the hearing are typically the parties and the CASA. Any person who has information about the status of the child or the treatment plan may give testimony, including anyone called as a witness by a party or any person given notice of the hearing. §32A-4-25.1(H). This includes the foster parent, preadoptive parent or relative caregiver, who has a right to be heard regardless of whether he or she is a formal party to the proceeding. §32A-4-27(F); Rule 10-105.3.
Federal legislation passed in 2006 requires the agency to have procedural safeguards in place to assure that the court consults with the child in an age-appropriate manner regarding the proposed permanency plan for the child. See Handbook §38.8. The preferred practice in New Mexico is to involve children as much as possible in proceedings affecting them, but federal guidelines indicate that consultation can take place through the child’s GAL or attorney. What is critical is that the child’s views on his or her permanency plan be obtained by the court for consideration during the hearing.
19.5 REPORTS
Prior to the permanency hearing, CYFD must submit a progress report on the child to the local CRB. The report should describe reasonable efforts toward reunification and achieving permanency for the child. The CRB may review the progress report, along with the child’s dispositional order and any continuation of the order, and report its findings and recommendations to the court. §32A-4-25.1(A).
Rule 10-325(C) requires that CYFD, not less than five (5) days prior to a permanency hearing, prepare and serve on each party a pre-permanency hearing report. The report must include the department’s proposed permanency plan, as well as any proposed changes to the disposition plan.
19.6 EVIDENCE
The Rules of Evidence do not apply to permanency hearings. §32A-4-25.1(H); Rule 11-1101(D)(2). The court may admit testimony by anyone given notice of the hearing who has information about the status of the child or the status of the treatment plan, and all testimony is subject to cross-examination. §32A-4-25.1(H).
All parties have the opportunity to present evidence and cross-examine witnesses. §32A-4-25.1(B).
In State ex rel. CYFD v. Maria C., 2004-NMCA-083, 136 N.M. 53, the court ruled that due process protections attach at the permanency hearings. “Because due process is a flexible right, the amount of process due at each stage of the proceedings is reflective of the nature of the proceeding and the interests involved, as well as the nature of the subsequent proceedings.” Id. ¶25. The court determined that due process requires basic protections at critical stages of an abuse/neglect proceeding and that the permanency hearings are a critical stage. Id. ¶¶28 and 29.
19.7 BURDEN OF PROOF; REBUTTABLE PRESUMPTION ELIMINATED
The 2005 amendments to the Children’s Code eliminated the rebuttable presumption that the child’s best interest will be served by returning the child to the parent, guardian or custodian. Now, after considering the evidence, the court must order one of the permissible permanency plans: reunification, placement for adoption, permanent guardianship, placement with a fit and willing relative, or placement in a planned permanent living arrangement. §32A-4-25.1(B).
THE PERMANENCY PLAN
19.8.1 PERMANENCY PLANS
The court adopts a permanency plan for the child as the first permanency hearing. As described above and in Chapter 18, the plan for the child will be:
- reunification;
- adoption, with the state filing a termination
of parental rights;
- permanent guardianship;
- placement with a fit and willing relative; or
- placement in a planned permanent
living arrangement.
The last option is available only if there is substantial evidence that none of the other permanency plans is appropriate for the child. §32A-4-25.1(B)(5). ASFA regulations allow a planned permanent living arrangement only if the state documents to the court a compelling reason for determining that it is not in the best interest of the child to follow one of the other options. See Handbook
§38.4 on ASFA.
19.8.2 REUNIFICATION; ADOPTING A TRANSITION PLAN
Whenever the court establishes reunification as the permanency plan, it must also adopt a plan for transitioning the child home and set a permanency review hearing within three months. §32A-4-25.1(C).
19.8.3 REASONABLE EFFORTS TO FINALIZE
PERMANENCY PLAN
One challenge posed by ASFA is its requirement that the state agency, in this case, CYFD, obtain a judicial determination that it made reasonable efforts to finalize the permanency plan in effect. Like the court’s adoption of a permanency plan, the reasonable efforts determination must be made within twelve months after the child is considered to have entered foster care. See
Handbook §38.4.
This judicial determination must be explicitly documented, made on a case-by-case basis, and so stated in the court order. A transcript of the court proceeding is the only other documentation that will be accepted. Affidavits, nunc pro tunc orders and references to state law are not acceptable. See Handbook §38.4.
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ASFA Note. As explained in §38.4, the so-called ASFA requirements are not requirements imposed directly on CYFD or the New Mexico children’s courts. Rather, they are conditions that Congress and the federal agency implementing ASFA have placed on the state’s receipt of federal dollars for foster care. Federal funds make up seventy-five percent of the funds provided for children in foster care in New Mexico, and they make up a similar proportion of the funds used by CYFD to administer the foster care program.
In the case of the “reasonable efforts to finalize a permanency plan” determination, a child becomes ineligible for Title IV-E foster care payments if the determination is not made within the required twelve months period. See §38.4 for further explanation. |
19.8.4 OUT-OF-STATE PLACEMENT CONSIDERATIONS
If a child is not being returned to the parent, federal law requires that CYFD consider out-of-state as well as in-state permanent placements for the child, and CYFD will report on this at the permanency hearing. If the child is in out-of-state placement at the time of the hearing, the court will need to determine whether the out-of-state placement continues to be appropriate and in the best interests of the child, and the children’s court attorney will request a finding on this matter. See Handbook §38.7 on the Safe and Timely Interstate Placement of Foster Children Act of 2006, as well as 8.10.7.30 NMAC, as amended August 15, 2007.
19.9 FUTURE PERMANENCY DETERMINATIONS
19.9.1 PERMANENCY REVIEW HEARING UNDER 32A-4-25.1
As amended in 2005, the Children’s Code requires the court to hold a permanency review hearing within three months of the first one if the child was not returned home and the permanency plan is reunification. If the child is reunified before the review hearing, the hearing may be vacated. §32A-4-25.1(C). See Chapter 20 on the subsequent permanency
hearing.
19.9.2 HEARING ON PERMANENCY PLAN EVERY 12 MONTHS
The court must hold permanency hearings every twelve months when a child remains in the legal custody of CYFD. §32A-4-25.1(F). This requirement is consistent with ASFA and its regulations, which require that, at least once every twelve months, the court hold a hearing at which it adopts a permanency plan. At least once every twelve months, the state must also obtain a judicial determination that it has made reasonable efforts to finalize the permanency plan in effect. See
Handbook §38.4 on ASFA.
19.10 CHECKLIST
Click here
for an initial permanency hearing checklist. |
