history & key principles

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Transcript history & key principles

Dan Pearlman
[email protected]
[email protected]
Evolution of the Abuse/Neglect SYSTEM
1899: First juvenile courts established to “save” potentially
criminal children from becoming criminal.
No distinction : abuse/neglect and delinquency
Child “saving” = removal/placement of
“problem kids”
No rights for parents
“Parens Patriae,” primarily focused on poor children
Little change until late 1960’s/1970’s, when parental
right to due process was established
Constitutional Rights of Parents Develop
1920’s : parents have a fundamental liberty interest in
the “care, custody and control” of their children
(though not to due process before removal).
Meyer v. Nebraska, 262 U.S. 390 (1923) (teaching foreign language
in school)
Pierce v. Society of Sisters, 268 U.S. 510 (1925) (private schools)
“It is cardinal with us that the custody, care and
nurture of the child reside first in the parents.”
Prince v. Massachusetts, 321 U.S. 158 (1944) (right to practice
In Re Gault, 387 U.S. 1 (1967)
“Due process, not benevolent intentions,
produces justice.” – Justice Abe Fortas
Struck down parens patriae authority of the court to remove
children from home without a hearing (to deal with criminal
Did not disturb the parens patriae doctrine in dependency cases.
Hailed by some as advancement in children’s rights.
Criticized by others as the criminalization of the juvenile court
and the beginning of the end of the court’s authority to treat
children like children rather than adults.
“Child’s best interest” today can retain some of the old
paternalism, if we are not careful.
Constitutional Rights of Parents
1972: Unwed father could not be presumed to be an unfit parent;
Entitled to a hearing, under equal protection clause)
- Stanley v. Illinois, 405 U.S. 645
1982: The interest of parents in the care and custody of
their children is a fundamental liberty interest protected
by the due process clause of the 14th amendment.
- Santosky v. Kramer, 455 U.S. 745 (because of due process
protection, standard of proof for TPR must be clear and convincing).
Extended to adjudications by NM statute 32A-4-20(H).
* 83 years from the first children’s courts, 15 years after Gault, came the
establishment of due process for TPRs in Santosky.
Despite the Supreme Court's repeated
recognition of these significant fundamental
parental liberty interests, these interests have
never been seen to be without limits.
-Lehr v. Robertson, 463 US 248 (1983).
-Gerald D., 491 U.S. 110 (1989).
The Right to Parent Requires a Familial
Relationship – Biology is not enough
Lehr v. Robertson:
The mere existence of a biological link does not
merit . . . constitutional protection. To have
constitutionally protected parental rights, an unwed
father must take steps to establish a “significant
custodial, personal, or financial relationship
with his child.”
Sometimes marriage is enough.
Michael H. v. Gerald D.: Despite established relationship
with child, bio father's due process was overcome by state
statutory presumption that the husband of the child's mother
was the child's only legal parent.
• A plurality said the parental liberty interest was a function, not
simply of biology and connection, but of the broader and
apparently independent societal interest in family. Somewhat
• Holding only upheld a state statute. It did not hold that unwed
father’s can not have protected liberty interests. New Mexico law
says that they do. A child can have two fathers with legal rights in
Familial Relationship
Parent in New Mexico
§ 32A-1-4(O)
“Parent” under Children’s Code includes a biological or
adoptive parent if he/she has a constitutionally
protected liberty interest in the care and custody of the
- Per Lehr case, probably means “significant custodial,
personal, or financial relationship with his child.”
- Note: marriage is not mentioned.
BUT NM Adoption Act adds rights for other fathers.
Familial Relationship:
Acknowledged Father In Adoption Act
§ 32A-5-3(F)(4)
Unwed bio father can become an “acknowledged
father,” if he:
 Acknowledges
paternity by registering with the putative father
registry; or
 Is
on the birth certificate (with his consent); or
 Is
obligated to pay support (because of a written voluntary promise
or court order); or
 has
openly held out the child as his own by establishing a custodial,
personal or financial relationship with the child.
Acknowledged Father
The adoption petition must be served on the
acknowledged father. § 32A-5-27.
The acknowledged father’s consent to adoption is
required. § 32A-5-17.
But so is the presumed father’s (husband):
Presumed Father
§ 32A-5-3(V)
(1) husband of the biological mother at the time the
adoptee was born; or
(2) was married to the mother and either the adoptee
was born during the term of the marriage or the
adoptee was born within three hundred days after the
marriage was terminated by death, annulment,
declaration of invalidity or divorce; or
(3) attempted to marry the mother before the adoptee's
birth by a marriage solemnized in apparent compliance
with law, although is or could be declared invalid.
Presumed Father
Presumed father’s consent to adoption is
required. § 32A-4-17
- So serve petition on him as well as bio dad.
- Presumed father appears to have statutory
rights that exceed the constitutionally
protected liberty interest.
Therefore, abuse/neglect cases need to
determine both the constitutional and
statutory rights of both a biological
father and a presumed or acknowledged
Bio father may or may not have a
protected liberty interest. Husband must
consent to adoption even if no
relationship with child.
 1-
Husband is presumed father but is not bio
dad. The bio dad has established a
relationship as an acknowledged father.
- Bio dad was married to mother when
child was conceived, so is a presumed father,
but he has not established a relationship and
is not on the birth certificate. Mom’s
boyfriend after divorce has established a
relationship with the child.
Parents’ Substantive Rights
“An unfavorable personal status, such as low IQ,
poverty, mental illness, incarceration, prior
convictions, or addiction, is … relevant only to the
extent that it prompts either the harms defined as
abuse, or the neglect which is defined as the failure
to provide ‘proper parental care and control’ or an
inability ‘to discharge his responsibilities to and for
the child.’”
In re Adoption of J.J.B., 119 NM 638 (1995).
-“Where the custodial parent has neglected child, the noncustodial
parent is entitled to custody unless the Department can establish the
noncustodial parent is unfit.” Mary L., 108 N.M. 702 (Ct.App. 1989); reaffirmed,
Lisa A., 2008-NMCA-087.
BUT NOTE: Department has a legal duty to investigate allegations of
current unfitness. Court can granting Department legal custody until the
investigation is complete.” In re A.H., 1997-NMCA-118
“Extraordinary circumstances may arise [warranting state custody] where, after
a long separation between parent and child, the necessary parent-child bond
has disintegrated [even though parent not found unfit].” Benjamin O., 2007NMCA-070
Parents’ Procedural Rights
Right to Due Process:
 Due
process = notice and opportunity to be heard.
Mafin M., 2003-NMSC-015.
 Parents’ due process rights must be balanced against
the state’s compelling interest in the child’s welfare.
In re Adoption of J.J.B., 119 N.M. 638 (1995); Matthews
v. Eldridge, 424 U.S., 319 (1976).
 Department (as well as court) has responsibility to
assure fairness and due process for parents. Case
reversed because RA did not receive notice of filing
of TPR. Ronald A., 110 N.M. 454 (1990).
Parents’ Procedural Rights:
Effective Assistance of Counsel
The right to counsel is not constitutional.
- Lassiter, 452 US 18 (1981).
But NM statutory right to counsel implies right
to effective assistance of counsel.
- In re Tammy S., 1999-NMCA-009.
Parents’ Procedural Rights:
Notice and Opportunity to be Heard
Parents who are not present at trial must be afforded an
opportunity to be heard and present a defense.
Alternative measures must allow the parent to:
testify on his/her own behalf,
cross-examine witnesses,
confer with counsel, and
have State produce clear and convincing evidence : no proffers.
Rosa R., 1999-NMCA-141; Stella P., 1999-NMCA-100; Ruth
Anne E., 1999-NMCA-035.
Abuse and Neglect Cases Are Not Criminal
Purpose of abuse and neglect proceedings is to
protect the interests and well-being of children, not
to punish the parent.
The child’s welfare is the paramount interest at stake.
Abuse and Neglect Cases Are Not Criminal
“Because neglect and abuse proceedings are civil proceedings,
the Confrontation Clause of the Sixth Amendment of the
U.S. Constitution…is not at issue [in context of hearsay
exceptions].” Pamela A.G., 2006-NMSC-019.
But NOTE: similar interests do protect parents’ right
to cross examine witnesses.
Exclusionary rule does not apply in the context of abuse
and neglect proceedings because it might thwart the State’s
interest in the protection of children. Michael T., 2007-NMCA16.
Rights of the Child
The courts have not explicitly articulated the rights of
The truth is self-evident that children have certain inalienable
to be free from physical and emotional harm at the hands of
their caretakers; and
to be provided with the essentials of food, shelter, education
and medical care.
If the parent cannot fulfill “the duty to protect, train and
discipline the child and to provide the child with food,
shelter, personal care, education and ordinary and
emergency medical care,” the state may intervene legally.
Cf. § 32A-1-4(N) (defining “legal custody”).
Best Interest of the Child is Paramount
Although best interest of the child findings are required,
“best interest of the child” is not defined in statute or
case law.
Best Interest of the Child = touchstone against which every
placement and permanency decision must be tested.
Best Interest of the Child can be understood by
remembering the purposes of the Children’s Code, as
described by § 32A-1-3(A):
first to provide for the child’s care, protection and wholesome
mental and physical development,
and then to preserve the unity of the family whenever possible.
The child's health and safety shall be the paramount concern.
See also Michael T., 2007-NMCA-163.
Best Interest of the Child: The GAL
A child’s best interest is protected by due process and
fulfillment of the requirements of the Code, especially
 the appointment of and zealous representation by a
GAL or Youth Attorney. § 32A-4-10(F).
§ 32A-1-7(A): A guardian ad litem shall zealously represent
the child's best interests in the proceeding for which the
guardian ad litem has been appointed and in any
subsequent appeals.
§ 32A-1-7(D) further requires the GAL, after consultation
with the child, to "convey the child's declared position to
the court at every hearing."
Best Interest of Child:
The Youth Attorney
Best interest is different for every child. But, older
children are more likely to have a better idea of their best
§§ 32A-1-7.1 & 32A-4-10 (2005) established that youth
14 & older have YAs, not GALs.
32A-4-10(F) requires the court to assure that the GAL
zealously represents the child's best interest and that the
YA zealously represents the child.
To that end, the YA protects the youth client's best
interests through zealous advocacy and effective client
Everyone Involved Should Protect
the Best Interest of the Child
Since the goal of the proceedings is the best interest
of the child, ALL the parties AND the
Court should be working to protect the child’s
best interest.
Of course, each party’s view of best interest—and
approach to protecting the child’s best interest-may be different.
Federal Statutes –
More Cooks for the Soup
Federal laws and regs impose requirements that
must be met to ensure essential federal funding
welfare services
support services
care maintenance payments
Federal Statutes
CAPTA: Child Abuse Treatment and Prevention Act of
1974, 42 U.S.C. §§ 5101-5107.
for children
Definitions of child abuse and neglect
Reporting and immunity requirements
All now incorporated in NM law
1980 Adoption Assistance and Child Welfare Act, PL 96272:
Reasonable efforts to preserve family
Periodic review
Federal Statutes –cont’d
1981 Social services block grants created CPS funding to
1997 ASFA: Adoption and Safe Families Act, PL 105-89:
Stop children languishing in foster care.
Safety, permanency and well-being.
Court determines permanency goal within 12 months.
TPR must be filed when child has been in custody 15 of
last 22 months unless compelling reason not to.
All now in NM law
ASFA - Best Interest of the Child and
“Contrary to the Welfare”
The court shall determine whether:
 continuation in the home would be contrary to the
child’s welfare, and
 reasonable efforts were made to prevent removal
from the home.
45 CFR 1356.21 (ASFA Regs - conditions of funding)
Termination of Parental Rights
ASFA: TPR proceedings must be filed for a child in
foster care 15 of the most recent 22 months unless
compelling reasons not to file.
Practice: TPR should be filed no later than
30 days after the agency or court determines filing
is appropriate (= change of permanency plan to
Compelling Reasons Not to File TPR
after 15/22 months in foster care:
Parent has made substantial progress and it is likely
that the child will be able to safely return home
within 3 months.
Child has a close and positive relationship with a
parent and a non-TPR permanent plan will provide
the most secure and appropriate placement
The child is fourteen years of age or older, is
firmly opposed to TPR and is likely to disrupt an
attempt to place him with an adoptive family.
Compelling Reasons Not to File TPR, cont.
parent is terminally ill … provided that the parent
has designated a guardian for his child.
child is not capable of functioning in a family
setting. . . .
do not exist for TPR.
child is an unaccompanied, refugee minor
(international issues); or
is not an appropriate plan for the child.
Termination of Parental Rights
Samantha D., 106 NM 184 (Ct.App. 1987)
 “Termination of parental rights …need not always
occur in the context of adoption. There are
obvious occasions when the state must intervene
on behalf of an abandoned, abused or neglected
child who is not awaiting adoption but who, in the
child's best interests, must be permanently removed
from the custody of its parent.”
“Clinical” reasons why child needs to be
permanently protected from parent.
Overall Goals
Avoiding unnecessary separation of children & families.
Timely decisions regarding placement and permanency:
Concurrent planning
Alternative dispute resolution
One family/one judge
Providing competent and adequately compensated
Providing notice and opportunity to be heard.