Statutory Changes
Rule Changes
New Case Law
Best Practices Bulletins

In 2005, the New Mexico Legislature passed a number of amendments to the Children’s Code, including amendments to the Abuse and Neglect Act.  These 2005 amendments were followed in 2007 by a major revision of the Children’s Mental Health and Developmental Disabilities Act.  The Legislature has also amended a number of related laws, such as the Safe Haven for Infants Act and the criminal statutes.  As a result, most chapters of the Handbook have been revised in some way.  The updated Handbook, generally current through October 2007, includes changes in statutes, rules, practices and procedures and new case law. 

Statutory Changes in 2005

Amendments to the New Mexico Children’s Code enacted in 2005 include the following:

General Provisions (Article 1):   Definitions were added and others were changed.  For example, definitions of protective supervision and reunification were added and the definitions of custodian, guardian and legal custody were changed.  The section of Article 1 on guardians ad litem was changed to emphasis the importance of conveying the child’s position to the court at every hearing in an abuse or neglect case.  A new section was added regarding the powers and duties of attorneys appointed to represent older children in these cases. 

Abuse and Neglect Act (Article 4):  Many of the changes to Article 4 were intend to achieve consistency with the federal Adoption and Safe Families Act (ASFA) and the 2003 amendments to the Child Abuse Prevention and Treatment Act (CAPTA).  For example, New Mexico law now provides that the name of the person reporting suspected abuse or neglect may not be disclosed without consent or a court order, a CAPTA provision.  Requirements and timelines for permanency plans and permanency hearings are clarified throughout to conform to ASFA.

One of the most notable changes in Article 4 is the change in the model of representation for children age 14 and older.  Older youth are appointed an attorney who represents the youth as an attorney under the client-directed model of representation, rather than as a GAL who represents best interest.  Another change intended to give young people a greater voice in the proceedings is that children 14 and older may be excluded from the courtroom only if the court finds a compelling reason to do so. 

If CYFD establishes probable cause of abuse or neglect at the custody hearing, the court may still return legal custody to the parent pending adjudication, with CYFD given protective supervision. After adjudication and disposition, the court must now establish a permanency plan for the child at the first permanency hearing, which is no longer based on rebuttable presumptions. If the permanency plan is reunification, the court must establish a transition home plan and hold a permanency review hearing within three months. 

Since prior termination of parental rights of a sibling can already be pled as an aggravated circumstance, it was stricken as an independent basis for not requiring reasonable efforts.  Mental health proceedings for children in care can now be held separately from the abuse or neglect case, an amendment that conforms the statute to the practice in some judicial districts.  Other amendments to Article 4 clarify what records and information are confidential and to whom confidential information may be disclosed, and require CYFD to adopt regulations on the disclosure or records.

Adoption Act (Article 5):  The 2005 changes implement at the state level the federal requirement that a nationwide criminal history check be conducted on all adults residing in the home of the prospective adoptive or foster parent; require that relinquishments be taken before a judge, on the record; and raise the age at which a child must consent to adoption from ten to 14.  Provisions were added to require that parents who relinquish their rights be notified that no agreement for contact with the child will be enforced unless it complies with the requirements for an open adoption specified in the law. 

Delinquency Act (Article 2): The Delinquency Act saw a number of changes in 2005, including: the addition of aggravated battery against a household member as a youthful offender offense; prohibition against detaining children under 11 except for purposes of an emergency mental health evaluation; elimination of the provision allowing the court to impose dispositions authorized under Article 4, although the court may still refer the child and family to CYFD for an abuse or neglect investigation when appropriate; and inclusion of language specifying that a child may not be required to admit allegations in a delinquency petition in order to obtain a consent decree.  The Legislature also made changes to the periods of commitment and parole, parole revocation procedures, sentencing authority for serous youthful offenders, confidentiality of juvenile records, and the dismissal process when a child is found incompetent. 

Families in Need of Court-Ordered Services Act (Article 3B):  Changes to Article 3B clarify what records and information are confidential and to whom confidential information may be disclosed; limit the court from excluding a child 14 or older from proceedings unless there is a compelling reason to do so; and extend additional safeguards for Indian children.  For example, this article now incorporates the placement preferences set forth in the Indian Child Welfare Act, requires the court to make a finding as to whether these placement preferences have been followed, and requires CYFD to provide notice to the child’s tribe in certain circumstances.

Statutory Changes in 2007

Children’s Mental Health and Developmental Disabilities Act was revised extensively in 2007 and given a new article number, Article 6A.  The procedures for voluntary and involuntary placement in residential treatment remain largely the same but provisions have been added to the Act to ensure that all children receiving habilitation or treatment services are accorded certain rights, regardless of where the services are provided.  While the focus of the Act previously had been on the most restrictive form of residential care, it now addresses the mental health and developmental disability needs of children in both institutional and community-based settings.  In addition to broadening the scope of the Act, the 2007 amendments specifically address the use of aversive intervention, physical restraint and seclusion.

Rule Changes

In late 2004, the Supreme Court made permanent the forms provisionally approved for proceedings under the Kinship Guardianship Act. In early 2006, the Court adopted rules and forms on the new attorney model of representation for older youth in abuse and neglect cases.  Later in 2006, the Court adopted a rule implementing the automatic sealing of records provisions that were added to the Delinquency Act in 2003.  In June 2007, the Court adopted a rule to ensure that foster parents, pre-adoptive parents and relative caregivers are informed of their right to be heard at judicial reviews and permanency hearings.

It is important for readers to keep in mind that the rules cited in this Handbook are the rules in effect in late 2007.  As the 2007 Handbook goes to press, the Children’s Court Rules Committee is completing a proposed recompilation of the Children’s Court Rules that has been under development for several years.  Revisions to the rules are also being drafted to reflect changes to the Children’s Code enacted over the years.  Hence, the Supreme Court is likely to be considering a number of proposed rule changes in the course of 2008. 

New Case Law

Several appellate cases have been decided since 2003 in the subject areas covered by the Handbook, including, among others: 

• Maria C. on the due process rights of parents in permanency hearings and the duties of respondents’ counsel, CYFD, and the court in protecting those rights.
• Pamela A.G. on due process, hearsay and child testimony.
• Kathleen D.C. on due process and expert witnesses for respondents.
• William M. on due process and reasonable efforts in relation to language barriers.
• Brandy S. on the use of judicial notice at TPR hearings.
• Joanna V. on the potential conflict between the role of the GAL in the civil abuse or neglect case and defense counsel in the delinquency case.   
• Stephen F. on the deadline for commencing dispositional proceedings in youthful offender cases, and the applicability of the Children’s Court Rules.
• Crawford and its New Mexico counterparts on hearsay in criminal proceedings. 

Best Practices Bulletins

The New Mexico Court Improvement Project has developed a series of Child Protection Best Practices Bulletins that cover a number of topics, ranging from advance calendaring to education advocacy to open adoption and mediated contact agreements to well-being checklists.  A special tab has been added to the Handbook so that all fifteen bulletins are available to our readers.  

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One chapter of the Handbook has not been considered for revision in the course of the 2007 update.  Chapter 36 on the Physical, Mental and Emotional Condition of Parents will be reviewed in the next round of updating.

We regret if we have missed any developments that should be reported in the Handbook, and we urge our readers to bring these matters to our attention.  As always, of course, we welcome any comments, suggestions or corrections that will improve the book as a resource for judges and participants in abuse and neglect cases.  Contact information is provided in the Introduction to the Handbook.

The Editors