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21.1
PURPOSE
By this point in the proceedings, unless there was a return home under protective supervision, or there has been a finding of some compelling reason to maintain a plan of reunification, the permanency plan is one that does not involve family reunification. Rather, the focus is on permanency for the child and on meeting the child’s needs. The court determines the extent of compliance with the treatment plan and the progress being made toward finding a stable and permanent placement for the child.
Periodic hearings are an important tool for the court to use to ensure that progress is being made toward finding the child a stable and permanent home and to address any problems that arise. They are an important opportunity to ensure that CYFD is making reasonable efforts to finalize the permanency plan that is in effect for the child and to review the plan and determine whether it remains appropriate. Perhaps the best practice may be to combine these hearings with the permanency hearing required under ASFA and the Children’s Code, as the ongoing permanency hearings are required to take place at least annually. §32A-4-25.1(F) and Handbook §38.4 on ASFA.
21.2 TIMELINE
The first “subsequent” judicial review hearing is to be held within six months of the conclusion of the permanency hearing, or, if a motion for termination of parental rights or permanent guardianship is filed, within six months of the decision on the motion. Judicial reviews are to be held at least every six months thereafter. §32A-4-25(B); Rule 10-325(H).
21.3 INITIATION AND NOTICE
As with the previous hearings, the children’s court attorney has the responsibility for requesting the hearing and notifying the parties, the child’s GAL or youth attorney, the child’s CASA, the local citizen review board (CRB) and the child’s foster parent, preadoptive parent, relative caregiver or substitute care provider. §32A-4-25(C), §32A-4-27(F) and Rule 10-105.3.
Prior to the review, CYFD must submit a progress report to the local CRB. The CRB is supposed to review the dispositional order or continuation of the order and CYFD’s progress report and report its findings and recommendations to the court. §32A-4-25(B). The CRB’s report becomes a part of the child’s permanent record. §32A-4-25(J).
21.4 PARTICIPANTS
The review may be conducted by the court or by a special master, provided the court approves the findings made by the special master. §32A-4-25(B). Participants in the hearing may include the parties and their attorneys, the child’s GAL or youth attorney, the child, the child’s foster parents, the CASA, the CRB representative, and possibly treatment providers and witnesses. A child under 14 may be excluded from the hearing if the court finds that exclusion is in the child’s best interests. A child who is 14 or older may be excluded only if the court finds a compelling reason to do so and the states a factual basis for so finding. §32A-4-20(E).
It is rare in most parts of the state for the CRB representative to be present; the CRB report has been provided to the judge by this time. However, CRB representatives attend occasionally in some parts of the state.
It is important to note that foster parents have a right to notice of the time, place and purpose of any judicial review hearing that is scheduled, as well as the right to be heard. §32A-4-25(C) and (D); §32A-4-27(F); Rule 10-105.3.
21.5 CONDUCT OF HEARING
21.5.1 COMPLIANCE WITH TREATMENT PLAN
In general, the court is expected to use the judicial review hearing to review CYFD’s progress in implementing the court’s orders. Rule 10-325(H). The court must determine the extent of compliance with the treatment plan and whether progress is being made toward establishing a stable and permanent placement for the child. §32A-4-25(D).
CYFD must show that it has made reasonable efforts to implement the treatment plan and present a treatment plan consistent with the Children’s Code for any period of an extension of the disposition order (see Handbook §16.13). The respondent must show that efforts to comply with the treatment plan and efforts to maintain contact with the child were diligent and made in good faith. §32A-4-25(D).
There is some conflict between § 32A-4-25 on judicial reviews and both ASFA and §32A-4-25.1 on permanency. Under the new timelines of ASFA and the amendments to the Children’s Code reflected in §32A-4-25.1, there would be no treatment plan as to the respondents in effect in many cases and the permanency plan would be well in place by the time these judicial reviews take place. Nevertheless, the reviews remain a valuable opportunity for ensuring that progress is being made toward finding a stable and permanent placement for the child. See §21.5.2 below.
21.5.2 STATUS OF THE CHILD
The court should review 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.
Annual permanency hearings must be held for the court to determine whether CYFD is making reasonable efforts to finalize the permanency plan that is in effect for the child, whether the plan is reunification, adoption, permanent guardianship, placement with a fit and willing relative, or placement in another planned permanent living arrangement. For the child to remain eligible for Title IV-E foster care payments, the court must make this finding at least once every twelve months while the child is in foster care. See Handbook §19.9.2, as well as §38.4 on ASFA. The judicial review hearing can be held in conjunction with a permanency hearing. See §21.1 above.
21.5.3 INDIAN CHILDREN
In cases involving Indian children, the judicial review hearing provides an opportunity for the court to determine whether the placement preferences of the Indian Child Welfare Act or the child’s tribe have been followed and whether the child’s treatment plan provides for maintaining his or her cultural ties. When placement preferences have not been followed, good cause for non-compliance must be clearly stated and supported. §32A-4-25(G); see also Handbook §39.3.
21.5.4 CHILD SUPPORT
Parents have an obligation to pay to support the child in substitute care, to the extent they are able to pay. If no child support order was entered previously, such as at the dispositional hearing, it should be entered at this time. In many courts, this means a referral to the Child Support Enforcement Division of the Human Services Department. See Handbook §16.12. 21.6 EVIDENCE
All parties given notice of the hearing have an opportunity to present evidence and cross-examine witnesses. §32A-4-25(D). However, the formal Rules of Evidence do not apply. §32A-4-25(E); Rule 11-1101(D)(2). The court may admit testimony by any person who has information about the status of the child or status of the treatment plan. §32A-4-25(E).
The foster parent, preadoptive parent or relative caregiver has a right to be heard at this hearing. §32A-5-25; Rule 10-105.3.
21.7 FINDINGS AND ORDER
At the conclusion of the hearing, the court must make findings of fact and conclusions of law. §32A-4-25(F).
21.7.1 FINDINGS OF FACT
Under §32A-4-25(D), 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 is in the best interest of the child. The court must also review the placement status of any Indian child for compliance with ICWA, as noted above.
The judicial review hearing provides the court another opportunity, if appropriate, to determine whether CYFD is making reasonable efforts to preserve and reunify the family, with paramount concern being the child’s health and safety. Alternatively, as with a dispositional hearing, the court may determine that reasonable efforts are not required because:
- the efforts would be futile; or
- the parent, guardian or custodian has subjected the child to aggravated circumstances (see Handbook §15.5.4 for definition). §32A-4-25(H)(5). Note: CYFD must plead and prove the existence of aggravated circumstances before the court can find that reasonable efforts are not required for one of these reasons.
Note on Futility Findings: In
State ex rel. CYFD v. Vanessa C.,
2000-NMCA-025, 128 N.M. 701, an appeal from the termination of parental rights, the Court of Appeals discussed the making of futility findings at judicial review hearings at which the Rules of Evidence do not apply. At the third judicial review hearing in the case, the trial court found that CYFD had made reasonable efforts to reunite mother and children and that further efforts to do so would be futile. Mother argued on appeal that the trial court’s reliance on hearsay evidence and oral argument and its failure to swear in witnesses and take formal testimony at the judicial review deprived her of a fair hearing.
The court observed, first, that, while a finding of futility results in the removal of a person’s expectation of CYFD assistance, the parent still has the opportunity to receive assistance on her own and otherwise protect her parental rights; this argues against the need for additional procedural safeguards, particularly in the absence of objection by her. ¶¶14-15, 128 N.M. at 705. Also, mother knew in advance of the hearing that CYFD was planning to seek a finding of futility based on past judicial review reports. The court believed that this advance notice and the mother’s opportunity at the judicial review to contest the validity of the previous reports also reduced her interest in having additional procedural safeguards. Her right to due process was not violated. ¶¶18-19, 128 N.M. at 706. The court proceeded, however, to say:
In view of the fundamental interests that are at stake in termination of parental rights cases, we recommend that in the future, if the real potential for an adverse ruling is in the offing at a judicial review hearing, and the adverse ruling might be avoided through the exercise of certain procedural safeguards, counsel should be prepared to present evidence and cross-examine witnesses. Although the rules of evidence do not necessarily apply in judicial review hearings, the hallmarks of the adversarial process—the presentation of evidence and the cross-examination of witnesses – are both contemplated in and permitted by our statutes. ¶21, 128 N.M. at 706.
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It is important that the court make findings with regard to whether CYFD is making reasonable efforts to finalize the permanency plan that is in effect for the child. These findings must be made at least once every twelve months while the child is in foster care, if the child is to continue receiving Title IV-E foster care payments. Similarly, the court should determine an appropriate permanency plan. See §21.5.2 above.
21.7.2 ORDER
Given §32A-4-25.1 and the ASFA regulations, some of the following situations may no longer be part of the picture. Nonetheless, under §32A-4-25(H) and based on its findings, the court may select any one of five dispositional alternatives:
- Return the child to the respondent and
dismiss the
case;
- Permit the child to remain with the respondent, subject to conditions, including protective supervision of the child by CYFD;
- Return the child to the respondent under the protective supervision of CYFD;
- Transfer to or continue legal custody in:
- the non-custodial parent;
- a prospective permanent guardian; or
- CYFD, subject to additional orders as described below; or
- Retain the child in the legal custody of CYFD, with or without parent involvement in the treatment plan. See discussion of reasonable efforts in §21.7.1 above. §32A-4-25(H).
The court may make additional orders regarding the treatment plan or placement of the child to protect the child’s best interests if it determines that CYFD has:
- failed to implement any material provision of the treatment plan; or
- abused its discretion in the placement or proposed placement of the child. §32A-4-25(H)(6).
Note on the “abuse of discretion” standard for reviewing placement decisions. The Court of Appeals has emphasized that the Children’s Code does not grant the court the power to dictate to the legal custodian where a child should be placed. Legal custody is a legal status created by court order that vests in a person or agency the right to determine where and with whom a child will live. Once legal custody is in CYFD, the children’s court does not have the authority to prohibit the department from placing physical custody with a particular person. State
ex rel. HSD in the Matter of Jacinta M., 107 N.M. 769, 771 (Ct. App.
1988).
Jacinta M. is worth noting for another reason. The children’s court ordered that the child not be placed with the child’s homosexual brother despite favorable recommendations. The Court of Appeals stated: “We believe that sexual orientation of a proposed [physical] custodian, standing alone, is not enough to support a conclusion that a person cannot provide a proper environment.” 107 N.M. at 772. |
If the court finds that the respondent has not complied with the court-ordered treatment plan, the court may order:
- the respondent to show cause why the respondent should not be held in contempt of court; or
- a
hearing on the merits of terminating parental rights. §32A-4-25(H(7).
If the court has reviewed the permanency plan (as distinct from the treatment plan) to determine the appropriate plan, its order should reflect approval of a permanency plan for the child. See §21.5.2 above. 21.8
DURATION OF DISPOSITIONAL ORDER
Dispositional orders entered at a judicial review hearing remain in force for six months, except for orders that provide for the transfer of the child to the child’s noncustodial parent or to a permanent guardian. §32A-4-25(I). However, this provision should be compared with §32A-4-24, which describes the “shelf life,” so to speak, of the judgment and disposition entered after the dispositional hearing. See Handbook §16.13.
21.9 CHECKLIST
Click here for
subsequent judicial review checklist. |
