| 20.1
PURPOSE
In 2005 the Children’s Code was amended to create a permanency review hearing. §32A-4-25.1(C). If the permanency plan adopted by the court at the initial permanency hearing calls for reunification, then the court will schedule a hearing within three months to review progress under the plan. If the child remains in CYFD’s custody at that point, the court will need to decide whether a different permanency plan is in the child’s best interest.
Prior to the 2005 amendments, the hearing that was held three months after the initial permanency hearing was called a subsequent permanency hearing and employed a rebuttable presumption that the child’s best interest would be served by changing the permanency plan to something other than reunification. The rebuttable presumption has been repealed but the permanency review hearing remains a hearing at which hard choices may have to be made.
Note that the Children’s Court Rules at 10-325(F) and (G) have not been amended yet to match the 2005 amendments to the Code, so reference will be made only to the statutory provisions on permanency review hearings.
20.2 TIMELINE
If the court adopts a permanency plan of reunification at the first permanency hearing, the court must adopt a plan for transitioning the child home and schedule a permanency review hearing within three months. If the child is reunified, this subsequent hearing may be vacated. §32A-4-25.1(C), as amended in 2005.
20.3 INITIATION OF NOTICE
The children’s court attorney is responsible for giving notice of the permanency review hearing to the parties, the child’s GAL, the CASA, if one has been appointed, the local CRB, and the foster parent, preadoptive parent, relative caring for the child, or substitute caregiver. §32A-4-25.1(G); Rule 10-105.3.
20.4 CONDUCT OF HEARING
20.4.1 NEED FOR ACTION
The fact that the permanency review hearing is held at all means that the child has already been in custody for approximately 12 months. If the child cannot be returned home, the Children’s Code requires the court to decide upon a permanency plan other than reunification and what the permanency plan should be. §32A-4-25.1(D).
20.4.2 DECISIONS TO BE MADE
Based on the evidence presented at the hearing, the court has one of three choices:
- Change the plan from reunification to one of the alternative permanency plans set forth in §32A-4-25(B) (see Handbook §18.5.1 for description of these plans);
- Dismiss the case and return custody of the child to the parent, guardian or custodian; or
- Return the child to the custody of the parent, guardian or custodian, subject to any conditions or limitations as the court may prescribe, including protective supervision by CYFD and continuation of the treatment plan for not more than six months, after which the case must be dismissed. §32A-4-25.1(D).
If CYFD is given protective supervision, it may seek removal of the child from the home by obtaining an order in the case or by seeking emergency removal under §32A-4-6 during the period of protective supervision, if the child’s best interest were to require such action. If the child is removed in this situation, the court will schedule a permanency hearing within 30 days of the child coming back into CYFD’s legal custody. §32A-4-25.1(D).
Hard Decisions: The courts have to make hard decisions at this juncture. The statutory options seem simple enough on the surface. Since the Children’s Code was first amended in 1997 to tighten the deadlines for making permanency decisions, however, judges and participants have struggled to find solutions in those situations where the child’s best interests would still be served by returning home, but the process would take longer.
Such a predicament is particularly acute in cases involving older children who have an active relationship with the parent and who do not want to be adopted (under the Adoption Act, by age fourteen, children have a right to turn down an adoption), as well as in cases where the parent has been making some progress in treatment, but not swiftly enough.
Where the presenting problem is substance abuse, this is a frequent scenario. These difficult dilemmas do not alter the fact, however, that the child should not remain indefinitely in substitute care, despite the human tendency to hold out for additional time in hope of a better resolution.
The New Mexico Court of Appeals recognizes the limited amount of time that parents have to rehabilitate and reunite with their children. State ex rel. CYFD v. Maria C., 2004-NMCA-083, ¶20, 136 N.M. 53. However, the court also has “no doubt that a parent, like a criminal defendant, has a constitutional right to fair notice and an opportunity to participate in all critical stages of abuse and neglect proceedings” and that “permanency hearings can represent a critical stage” in the proceeding. Id. ¶¶28-29. Ensuring due process to the parents while moving toward permanency for the child under statutory timelines is challenging but important. |
20.4.3 EVIDENCE
At the permanency review hearing, all parties and the child’s GAL or attorney have the opportunity to present evidence and cross-examine witnesses, and foster parents have the right to be heard whether or not they are parties. §32A-4-25.1(D); §32A-4-27(F) and Rule 10-105.3.
While the Rules of Evidence do not apply at permanency hearings, the court should ensure that respondents have the opportunity to be heard in a meaningful manner. Maria C., 2004-NMCA-083, ¶26.
The court should obtain the child’s views of his or her permanency plan during the hearing. See Handbook §18.4.
20.5 REASONABLE EFFORTS TO FINALIZE A PLAN
CYFD should be prepared to demonstrate to the court that it has made reasonable efforts to finalize the permanency plan in effect and to request a determination to this effect. CYFD must request this determination at least once every twelve months that the child remains in foster care and hence should be prepared to do so at this hearing. See Handbook §38.4 on ASFA.
20.6 CHECKLIST
Click here
for subsequent permanency hearing checklist. |
