29.1 ONE FAMILY-ONE JUDGE CONCEPT

29.1.1 PURPOSE
Continuity and consistency are fundamental to prompt and appropriate resolution of abuse and neglect cases. This is most attainable by the assignment of a case to a single judge for the duration of the proceedings. The judge in an abuse or neglect case presides over a process. Everyone involved should have the benefit of clearly defined goals and consistency in moving towards them. The one family-one judge concept helps provide that consistency.

Where possible, courts should create Children’s Court Divisions to assign responsibility for abuse and neglect cases to one judge. This requires the judge to assume responsibility for an entire docket and usually results in a degree of specialization not previously attainable. Creation of divisions generally requires the cooperation and agreement of the other judges on the court. If judges in the district rotate through division assignments, it is recommended that an assignment to the Children’s Court Division should be for more than two years.

29.1.2 COORDINATION OF CASES
Another aspect of the one family-one judge concept is coordination of abuse and neglect cases with other related cases on the docket. It is not uncommon for families involved in abuse and neglect cases to have juvenile delinquency, domestic relations, domestic violence, paternity, custody, child support or visitation cases occurring simultaneously. This presents the court with a serious risk of inconsistent, even conflicting, court orders directed to the same parties. This situation can be avoided by assignment of these cases to the judge handling the abuse and neglect case. Alternatively, it would be helpful if the courts and parties in the different cases would communicate sufficiently to avoid or minimize conflicting court orders. At a minimum, the judge handling the abuse or neglect case should be aware of the other cases and their potential to adversely affect the case plan.

Many times permanence cannot be attained until custody and visitation orders in all related domestic cases are aligned with the treatment plan and permanency goal in the abuse and neglect case. The judge hearing the abuse and neglect case often has resources available that overshadow those available in domestic relations courts. The judge handling the abuse and neglect case should be willing to address the issues in a related domestic relations case as necessary to achieve the safety, permanence, and well being of the child. The judge, for example, can often handle the adoption of the child within the abuse and neglect case. Certainly, the judge must be aware of the status of any adoption proceeding pending in another court.

When criminal proceedings arise out of the same facts as the abuse or neglect case, the prosecutor should be aware of and support the goals of the abuse and neglect court with regard to the family. If this is not attainable, at a minimum the judge should proceed with the abuse or neglect case in a manner that avoids undue delay in attaining permanence.

Similarly, the judge hearing the abuse or neglect case should be made aware of any delinquency proceedings that may be pending before a different judge and that affect a child who is a party to the abuse or neglect case. This would assist the judge in ensuring, for example, that appropriate services were being provided to the child and family.

29.2 DOCKETS AND SCHEDULING

29.2.1 URGENCY OF RESOLUTION
Abuse and neglect cases present a serious scheduling challenge because they always involve a number of parties and attorneys, and potentially many witnesses. Yet the emphasis in federal law, the New Mexico Children’s Code, and in court rules on deadlines and generally short time limits reflects a policy determination that these cases need to move promptly to a resolution. The constant attention directed to the need to expedite permanency is the result of an acute awareness that children in abuse and neglect cases are put at a serious disadvantage by protracted proceedings.

Poor docketing and scheduling can seriously undermine the statutory and rule-based urgency that policy makers strive to create. Abuse and neglect cases should enjoy a priority over essentially all other matters on the court’s docket. Many judges are not assigned exclusively to these matters and need to juggle other docket assignments, such as criminal or civil, as well.

The perception of the parties that the court will allocate all necessary judicial resources to these cases is essential. There will be times when it will be necessary to scramble to make the deadlines, but failure to do so runs the risk of creating the perception that the court does not share the commitment of policy makers to urgency regarding these matters. Other risks of not meeting required time frames include dismissal of the petition, if adjudication does not commence within 60 days of service of the petition alleging abuse or neglect, or the withdrawal of federal foster care funds, as required by the Adoption and Safe Families Act and regulations when certain timelines are not met. See Handbook §38.4.

29.2.2 REGULAR DOCKETS
Regular dockets should be established allocating certain days of the week and certain weeks of the month or year to abuse and neglect proceedings, with sufficient time allowed for each hearing. The court should have time available every week for custody hearings and review hearings. Time should be allocated for adjudicatory hearings within the period allowed every month.

While most cases will resolve with agreements at the adjudicatory hearing, some could require long, even multi-day, hearings. Adroit use of pretrial hearings and prompt notice to the court of settlements arising from the pre-adjudicatory meeting will help identify those adjudicatory hearings that may be lengthy and require more time.

Occasionally the involvement of expert witnesses and complex issues will call for the court to be intensely involved in pretrial management of the case, similar to a complex, multi-party civil case. It is preferred that hearings be set at a particular time rather than on trailing dockets to allow CYFD employees, therapists, CASAs and others to plan to be available and participate. Continuances and other extensions of time limits should never become commonplace.

29.2.3   Advance Calendaring
Advance calendaring involves setting upcoming court dates and related events at the earliest possible point in an abuse or neglect case and as far in advance as reasonable.  Ideally, at the conclusion of the custody hearing, the court would schedule the mandatory pre-adjudicatory meeting, the adjudicatory and dispositional hearings, the initial judicial review, the mandatory pre-permanency meeting and the permanency hearing.  Alternatively, at the conclusion of the adjudicatory and dispositional hearings, the court would schedule the initial judicial review, the mandatory pre-permanency meeting and the permanency hearing.  Advance calendaring may also include advance notice about the court’s expectations in terms of reports and other information to be presented at the different hearings, and their timely submittal.  A scheduling order would be entered and distributed to the parties. 

A variation on advance calendaring is special calendaring, where certain situations in the case set up special requirements for hearings or other activities.  One of the most common situations is where the court finds that reasonable efforts to reunify the family are no longer required, either because such efforts would be futile or because the parent has subjected the child to aggravating circumstances, in which case a permanency hearing must be held within 30 days.  See Handbook §19.2.  As a best practice, the court would set a date and time for the permanency hearing at the time the finding is made, and a scheduling order would be entered and distributed to the party.  Similarly, if the child is approaching 15 out of the last 22 months in foster care, the court would set a date for the filing of a motion to terminate parental rights, or for CYFD to appear in court to explain why moving to TPR would not be appropriate at this time.  See Handbook §22.5.2

Advance calendaring is particularly important in child abuse and neglect cases where time frames are firmly fixed in federal and state law.  Advance calendaring is also instrumental in ensuring that efforts to achieve permanency for the child are moving forward as efficiently and effectively as possible. 

29.3 SPECIAL MASTERS
A special master appointed by a children’s court judge pursuant to Rule 10-111 can be very helpful to the court in meeting the deadlines required by the children’s cases. The special master should be someone trained to handle abuse and neglect cases who enjoys the confidence and approval of the parties. In addition, Rule 10-111 requires all special masters to have been licensed to practice law in New Mexico for at least 3 years before appointment.

Special masters may perform any of the functions of a children's court judge, but concurrence of the parties is required before a special master may preside at preliminary hearings or examinations, bench or jury trials, and adjudicatory and dispositional hearings. At the end of a proceeding, the special master prepares and files a report with proposed findings of fact, conclusions of law, recommendations, and orders. This report does not become an order of the court until approved by a children’s court judge. Once the report is filed, the parties may file exceptions to the report. After the period for exceptions expires, the judge may receive evidence excluded by the special master to which exceptions have been taken or it may adopt, modify, or reject the report in whole or in part. Rule 10-111.

The court should have a close working relationship with the special master. The precise nature of that relationship should be determined by the individual district and the individual judge. In addition, each district should answer certain important questions about its use of special masters, such as:

• Will the special master participate in juvenile justice and/or abuse and neglect cases?
• Will the special master hear contested adjudications and terminations of parental rights?
• What qualifications and training will be required of the special master?
• Will the special master be retained as a contractor or an employee?
• Where will the special master work--in one or multiple counties or the entire district?

Use of a special master is appropriate to aid the court even in those jurisdictions where judges are not assigned exclusively to Children’s Court. A panel of special masters available on a rotation could spread the work around, keep the masters fresh, and keep the court’s business moving. However, frequent challenges to the master’s recommendation would dissipate the time benefit of using special masters.

29.4 MEDIATION

29.4.1 OVERVIEW OF MEDIATION IN ABUSE AND NEGLECT CASES
The use of mediation in abuse and neglect cases began in the early 1980s in a limited number of courts across the nation and has expanded rapidly since that time. Individual programs vary in the way they are structured, the stage in the case at which mediation occurs, and the issues that are mediated. For example, some programs use volunteer or contract mediators, while others use mediators associated with a court clinic. In some courts cases are mediated only at the adjudication stage or only at the permanency or termination stage, while in others, cases may be mediated at both stages. Finally, there are programs that limit the types of issues that are mediated (e.g. visitation) while others mediate all issues. To date there is no evidence that any one model of mediation is more effective than another; although there is some evidence that mediation tends to be most successful when offered early in the case.

Evaluative studies of abuse and neglect mediation programs nationwide reveal that:

• Cases settle in mediation. Completed and partial settlement rates vary from 70 to 90 percent.
• Parents are generally very satisfied with the mediation process.
• There is some evidence that parties are more likely to comply with mediated agreements, that mediated cases are less likely to return to court for a contested hearing, and that mediation reduces the amount of time spent in contested hearings.
• Mediated and non-mediated agreements are generally comparable. To the extent that there are differences, mediated agreements tend to be more specific and more detailed than those developed in court hearings and are more likely to reference specific services to be provided for the child. Additionally, mediated agreements typically provide more visitation than do litigated plans. This is important since research suggests that an important predictor of a successful reunification is whether the parent visited the child frequently when the child was in the state’s custody.
• Professionalsare often initially resistant to mediation; however once they try it they like it. Attorneys and social workers report that it is useful to have everyone in the same room at the same time to resolve as many issues as possible, and that, while mediation may involve more time up front, it actually saves time later.
• Finally, there is also some evidence that mediation may result in significant cost savings. See Dependency Mediation in Colorado’s Fourth Judicial District, Center for Policy Research, October, 1999; Evaluation of the Children’s Justice Act Protective Services Mediation Pilot Projects (Austin, TX: Texas Department of Protective and Regulatory Services November 1998); Dependency Mediation in the San Francisco Court, Center for Policy Research, March 1998; Family and Conciliation Courts Review, Volume 35, No. 2, April 1997; Evaluation of the Children’s Justice Act Protective Services Mediation Pilot Projects (Austin, TX: Texas Department of Protective and Regulatory Services November 1998); Mediation in Five California Dependency Courts: A Cross-Site Comparison, a report to the California Legislature, Center for Policy Research, November, 1995; National Symposium on Court Connected Dispute Resolution Research, National Center for State Courts, State Justice Institute, 1994.

29.4.2 ABUSE AND NEGLECT MEDIATION IN NEW MEXICO
Early in 1998, the Court Improvement Project Task Force of the New Mexico Supreme Court created a committee to look more closely at developing alternative tools and methods for judicial case processing. The Committee recommended that the Task Force undertake a mediation pilot project in the 1st Judicial District. The project was designed and implemented by a team including the CYFD County Office Manager for Santa Fe County, social workers, children’s court attorneys, respondent attorneys, guardians ad litem, CASAs, court mediators and the Children’s Court judge.

In June of 1999 the pilot project ended and the project was evaluated with overall positive results. Mediation resulted in consensus in 64-87% of the cases, depending on the issues mediated. Additionally, there was anecdotal evidence that:

• Respondents may be more compliant with treatment plans developed during mediation.
• Case disposition time may be reduced as many issues are settled in advance of the adjudicatory hearing.
• Mediation results in more options for placement and services.

Finally, there was virtually unanimous agreement that mediation services should continue to be offered and even expanded so that mediation would be available prior to the permanency hearing and, in some cases, in conjunction with termination proceedings.

In March 2000, the Administrative Office of the Courts (AOC) began work with the CYFD to expand the use of mediation in abuse and neglect cases. By 2007, the Children’s Court Mediation Program had grown to include 23 counties in ten judicial districts (2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 11th, 12th and 13th), with plans to expand into the 9th and 10th districts by 2008. (The 1st Judicial District also continues to provide mediation services but does so in-house.) Referrals have steadily increased each year from 115 during the first full year of the program to 516 cases for 2006-2007. Over 2,200 cases have been mediated through the program since 2000.

Additionally, the Children’s Court Mediation Program has expanded to provide families greater access to mediation. Cases were initially mediated only at the “legal” stage (i.e. once a child had been removed from the home), but are now mediated at all stages of an abuse and neglect case from investigation to reunification or termination of parental rights (TPR), including open adoption referrals, as well as in cases where families are involved with both the protective services and the juvenile justice divisions of the CYFD. A trained mediator meets with the parents, their attorneys, the guardian ad litem, youth attorney, the CYFD attorney, the social worker, and others and assists the parties in achieving agreements regarding placement, visitation, treatment and permanency. Mediators must have a minimum of fifty-six hours of training, including 16 hours of specialized training in mediating abuse and neglect cases. Effective July 1, 2007, mediators are required to meet additional education and experience qualifications.

The flexible organizational structure of the program allows for centralized coordination through the AOC with local autonomy by the district courts and local CYFD offices. The statewide coordinator supervises local coordinators who work directly with the implementation teams comprised of judges, respondent’s attorneys, guardian ad litems (GAL), youth attorneys, CYFD staff and attorneys, Court Appointed Special Advocates (CASA), and other interested parties. The teams are a decision-making body responsible for developing protocol that meets the needs of that particular court. The statewide coordinator works with each site to provide quality assurance by offering ongoing training and education for mediators, professionals and families and supervising program evaluation.

Program quality has improved since 2000 and evaluation results have been positive. Findings from recent evaluations are consistent with those from other states:

• Families are generally satisfied with mediation. They are “given voice” and are more involved with treatment planning.
• Mediated cases appear to move through the system more quickly.
• The quality of the treatment plan is improved with mediation. Mediated plans are more detailed and more realistic.
• Parents are more likely to comply with mediated treatment plans.
• Mediation decreases the use of judicial resources and the court process has become less litigious.

29.4.3 ELEMENTS OF A SUCCESSFUL PROGRAM
The literature in this area, as well as New Mexico’s experience, suggest six factors that are critical to a successful mediation program:

• Central Coordination with Local Autonomy. The ability of the courts, CYFD and the professionals involved with mediating abuse and neglect cases to make decision at a local level is critical to ensure long-term viability of a mediation program. Centralized oversight, accountability, evaluation, training, and technical assistance should be balanced with localized program control, flexibility, and day-to-day management.
• Support of the local judiciary. The local judiciary must support the project. Lawyers, social workers, and others are often initially resistant to mediation. However, once they participate they are virtually unanimous in their support of the process. The support of the local children’s court judge is crucial to get the program off the ground.
• Competent and professional mediators. Mediators must understand the legal issues as well as the child welfare system and the emotional/psychological issues specific to abuse and neglect cases. They need both mediation experience and training specific to abuse and neglect mediation.
• Informed and educated professional participants. “Buy-in” from lawyers, social workers, treatment service providers, CASAs and others is essential during both the planning and implementation stages. Once the program is in place, there should be regular contact with participants to address any concerns that they may have. Mediation participants training should also be provided to those professionals who will be participating in mediation on a regular basis.
• Quality assurance. To ensure the delivery of consistent, high quality mediation services, it is important to establish the parameters for and monitor program evaluation and assessment of outcomes, mediator qualifications and assessment, and ongoing training and education for mediators, professionals and families. The performance and effectiveness of a program should be monitored through a variety of methods that include the collection and analysis of evaluation data such as number of cases, who attended, hours spent, total cost, issues mediated, demographic information about the families, levels of agreement and satisfaction.
• Stable and consistent funding. It is difficult to attract competent mediators and secure the trust and confidence of the parties and the courts in the absence of a stable funding source. Possible funding sources include private, state and federal grants as well as state recurring funds.

The Children’s Court Mediation Program has developed the following steps to create and implement a successful local mediation program:

Step One: Gain Judicial Support
Participation of a willing and supportive judge is the first step. Typically, a local judge or court administrator contacts the AOC or the statewide coordinator with an interest in the mediation program. The statewide coordinator (or local coordinator, if the expansion is within an established judicial district) then meets with the local judge(s) and court administrator to provide information, answer questions, and confirm interest in developing a program.

Step Two: Recruit a Local Program Coordinator
Local on-site coordination is a real asset to a program. The court and the statewide coordinator will work together to determine if there is staff available to fulfill this function or if the AOC needs to contract for these services. The local coordinator, under the direct supervision of the statewide coordinator, works with the implementation team and mediators to implement the plan and assist with the ongoing monitoring of the program.

Step Three: Form an Implementation Team
The statewide and/or local program coordinator works with the court and CYFD to form an Implementation Team to develop a plan for the program and to oversee the plan’s implementation. The Team includes representatives from all stakeholder groups, including Judges, Court Administrators, CYFD staff, Respondent Attorneys, GALs, Youth Attorneys, CASAs, Mediators, and the Citizen’s Review Board (CRB).

• Case referrals. (i.e., types of cases to be mediate, pre-legal and legal.)
• Scheduling process. (Who can make referrals and how, who is responsible for filing and/or notification, who may attend, logistics, etc.)
• How mediated agreements will be handled.
• Mediator qualifications aligned with the statewide program and any additional qualifications.
• Mediator list.
• Implementation Team list.
• Reporting process aligned with the statewide program.
• An evaluation plan aligned with the statewide program.
• All related forms.

Step Five: Establish the Mediator Pool
The statewide and local coordinators will recruit and train mediators to establish a local pool of qualified mediators. Due to the challenge of cultivating high quality mediators in more rural communities, a program may need to access mediators from other judicial districts for a period of time.

Step Six: Train the Professionals
The statewide and local coordinator will provide the professionals involved in child abuse and neglect cases with an orientation to the mediation program and introduction to the mediation process. These participant trainings or workshops may be repeated as needed.

For more information about the Children’s Court Mediation Program, please contact the Administrative Offices of the Courts at 505-827-4800.

29.4.4 REFERENCES
See generally Family & Conciliation Courts Review, 35(2) (1997), which is devoted to dependency mediation. Of particular interest in this issue are Dependency Court Mediation: The Roles of the Participants by Steve Baron, 148-159; Dependency Court Mediation: The Role of the Judge, by L. Edwards, 160-163; and Understanding the Role of the Mediator in Child Protection Proceedings, by T. Marilou Giovannucci, 143-148. See also, Child Protection and Dependency Mediation Profiles, The Association of Family and Conciliation Courts, 1998; and Dependency Mediation: Help for Families and Courts, by Nancy Thoennes, Juvenile and Family Court Journal, 2000.

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