The Role of the Parties and The Phases of the Case

Who, What, Where, When, Why and How

Children/Youth Parents or other caretakers

Case Workers Children’s Court Attorney Respondent’s Attorney (Parent’s or caretaker’s attorney) Tribal counsel and Case Workers Guardian ad Litem Youth Attorney CASA

The Players

Judge

Guardian ad Litem for incompetent party Foster parents (includes treatment foster parents) CRB Providers (doctors, therapists, treatment coordinators, psychiatrists, psychologists, school personnel, juvenile system personnel, etc.) Adoptive parents & counsel 2

General Duties - CCA

 CCA advises and represents the Department (case workers) both generally and specifically before filing and during the process of a legal case. Always has the Burden of Proof, unless a specific motion is filed by another party. Provides notice to parties, tribe, CASA and fosters.

 CCA must deal with parents in scrupulous fairness and has a constitutional duty to ensure a parent’s due process rights are protected. Ronald A., 110 N.M. 454 (1990) and Maria C., 136 N.M. 53 (2004). 3

General Duties - RA

 RA counsels, then represents, the parents or custodians throughout the legal case.  Should be appointed at inception. § 32A-4-10 with indigency determination made at Custody Hrg. (may be appointed if, in court’s discretion, appointment is required “in the interest of justice.”)  Makes reasonable efforts to locate clients and facilitate attendance or meaningful participation at proceedings.  Develops and presents evidence. See Maria C.,136 N.M. 53 (2004) and Performance Standards.

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General Duties – Guardian ad Litem and Attorney for Teen ( must have appropriate experience)

 Inform Court of child's declared position at every hearing  Actively participate in trials and hearings (call, examine, and cross-examine witnesses; introduce evidence)  Meet with and interview child before every hearing  Communicate with other providers, review reports, etc.

 Represent and protect child’s cultural needs  May retain counsel if child is victim of a tort. 5

Unique Duties of GaL and Attorney for Teen

 GaL ONLY   Represent and protect the best interest of the child under 14  Unless other counsel appointed, serve as GAL in MH Residential Placement Decisions Attorney for Teen ONLY  Represent child's declared position at every hearing  Unless other counsel appointed, may serve as attorney in MH Residential Placement Decisions 6

General Duties - Judge

  The District Court is charged with protecting a parent’s due process rights. Maria C.,136 N.M. 53 (2004). Review admissible information  Make decisions that protect the best interest of the child  Verify ICWA placement preferences and determine whether requisite proof established  Assures the GAL or Attorney for Teen “zealously represents the child or her best interest, depending on age.” 32A-4-10(F) 7

Overarching Themes

Timeliness. ASFA has strict timelines Continuity. The Code recommends a single judge hear all proceedings involving the child or family.

Remediation. not punitive but remedial with an emphasis on cooperation and rehabilitation instead of conflict.

Safety, Permanency, and Well Being.

Every child has a right to a family. Every effort towards permanency should have this fundamental proposition as its basis. Permanency must consider the child’s relationships with siblings, relatives and other significant adults, as well as tribal or other cultural connections. Throughout the case, the primary emphasis should always remain on meeting the needs of the child. At every stage in the proceedings the court addresses the reasonableness of efforts made either to reunite the family or to implement a permanent alternative placement for the child.

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ASFA Timelines

Assume that decreasing the time to permanency is in the Best Interest of the Child.

Have been incorporated into the Code. Can be extremely challenging, especially in cases involving substance abuse. Failure to comply with these timelines risks substantial federal funding. 9

ASFA CONCEPTS

As identified in NM’s recent program improvement plans (PIP):  Decreasing foster care re-entries  Maintaining connections  Placement stability  Independent living for teens 10

Entry into Foster Care

First: Try to avoid placing in foster care.

Referral made & assigned a priority Investigation In-home services, etc.

Child placed on a 48 hour hold by peace officers Time used to consult with family in a Team Decision making meeting (TDM) Filing petition requires CCA to decide that filing is in the best interest of the child.

Ex parte custody order to be served on respondent.

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Investigation of Allegations and Making Reasonable Efforts to Keep the Child in the Home

Case Worker ( with some input from CCA)

       Makes home visits Contacts collateral sources Determines if alleged event/circumstance occurred Determines whether there has been abuse or neglect Determines whether there is immediate or ongoing risk to child Makes suggestions to the family Refers the family to in-home services UNLESS risk of immediate harm or serious injury 12

Making Placement Decisions Before Decision to File

Case Worker.

 Attempts to reach consensus on the best placement for a child in a decision-making meeting with the family, supervisor, CCA and other providers. If no agreement, Department makes placement decision.

 Staffs case as to alternatives to removal and what reasonable efforts are required to prevent such 13

Looking For Missing Parents, Identifying Relatives, Identifying Indian Children & Contacting Tribes

Case Worker.

   Asks parents for possible placement options Directs missing parent search (centralized computer search available).

Gathers necessary information to determine:  residence, domicile, identity of both parents, and Indian Child status   Communicates with Tribe If an Indian Child, CCA provides notice to tribe and/or the Dept. of the Interior, as required by ICWA. §32A-4-6(C). 14

Decision to File CCA.

 In a pre-removal and/or pre-filing staffing provides advice to the Case Worker, then reviews affidavit and drafts pleadings. Must endorse on petition that filing is in child’s best interest. §32A-4-15.

Judge or Hearing Officer.

the Judge: Once the case is filed,  Signs orders of appointment for counsel, and if probable cause exists that child is abused or neglected is established and that custody under §32A-4-16 is necessary, then signs ex parte custody order. 15

Service of Petition and Related Documents

CYFD must effect service of the summons, petition, and related orders and notices:  By personal service upon:  The Respondent, and  The Child’s GAL or YA.

The summons must clearly state that TPR could result.

If a parent has not been named as a party, that parent shall be served the petition AND a notice that the parent may intervene and request custody. 16

The Custody Hearing

Why. To determine who will have legal custody of the child pending the adjudicatory hearing.   At this stage the child’s need for protection predominates, but no binding determination or remedy can be ordered other than removal of the child from the dangerous condition. Almost always the ultimate objective is for the child to return home safely. When. Within 10 working days of the filing of the petition.  CYFD is responsible for requesting a setting and notifying the parties. 17

The Custody Hearing, cont.

Who. Child, child’s parents/guardians/custodians, and attorneys.  A child under 14 may be excluded if the court finds exclusion is in the child’s best interest.

 A child who is 14 or older may be excluded if the court makes a finding that there is a compelling reason to exclude the child and states the factual basis on the record.

Other Details:

 Formal Rules of Evidence do not apply.  All abuse and neglect hearings are closed to the public.

 Records and information are confidential.

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Probable Cause

§ 32A-4-18(C), Rule 10-303(C) The court must determine whether probable cause exists to believe that:      the child is suffering from an illness or injury, and the parent, guardian or custodian is not providing adequate care; or the child is in immediate danger from his or her surroundings and removal is necessary for the child’s safety or well-being; or the child will be subject to injury by others if not placed in the custody of the department; or The child has been abandoned by his or her parent, guardian or custodian; or the parent, guardian or custodian is not able or willing to provide adequate supervision and care. 19

NEW in 2009! Custody: No Probable Cause

§32A-4-18(F) If NO probable cause, the Court must: (1) retain jurisdiction and, unless the court permits otherwise, order the respondent and child to remain in the court’s jurisdiction pending the adjudication; (2) return legal custody to the child's parent, guardian or custodian with conditions to provide for the child’s safety and well-being; and (3) order the child's parent, guardian or custodian to allow the child necessary contact with the child's GAL or attorney.

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Custody: Probable Cause

§32A-4-18 If probable cause, the Court must award legal custody of the child pending the adjudicatory hearing to either:  The parent, guardian, or custodian with conditions, such as protective supervision, or  CYFD.

 If the Court awards legal custody to CYFD, CYFD has discretion to decide whether Child should remain in the home or be placed in substitute care.  If CYFD decides that the child should remain in the home, it decides what conditions will apply.

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Custody Hearing (10 day)

CCA.

  Provides reasonable notice to parties.

Has burden to show probable cause if:  inadequate care,  with or without an injury or illness,  immediate danger,  injury by others, or  abandonment. §32A-4-18 .

 Presents basic assessment plan  32A-4-12 May apply for Protective Order/Use Immunity for assessment or treatment Case Worker. Primary witness. 22

Custody Hearing, cont.

RA.

§32A-4-10(B).

 Appointed at filing of case with adequate time to:    review paperwork, and meet with and advise client before custody hearing. If parent incarcerated, clarifies that transport order has been entered, or files such. Denies allegations. (Might stipulate to probable cause.)

GAL and/or Atty for Teen.

§32A-4-10(C).

 Appointed at filing of case with adequate time to:   review paperwork, meet with and advise client before custody hearing. Arranges to have child at court, if appropriate. 23

Custody Hearing, cont.

Judge.

 Advises respondents of rights and allegations. §32A-4 10(G).

 Decides whether probable cause exists. §32A-4-18.

 Determines legal custody, visitation plan, and assessments.  Assures the GAL or YA “zealously represents the child” or her best interest, depending on age. §32A-4-10(F).

 May schedule pre-adjudication mediation.

 May rule on CCA’s request for Use Immunity.

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After the Custody Hearing

The CYFD Case Worker conducts a psychosocial assessment of family functioning, then develops a treatment plan to address:  the reasons the child came into custody, and  the changes the parent, guardian or custodian needs to make to correct the condition. 25

Pre-adjudicatory Hearing Meeting

Mandatory by statute. 32A-4-19(B) Not a court proceeding.

In practice, many trials are avoided as a result of the mandatory pre-adjudicatory meeting, where the respondent may decide to enter admissions either directly or in the form of a plea of no contest. Mediation may be substituted.

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Pre-Adjudication/Mediation

§32A-4-19

CCA.

  Provides legal advice and support to the permanency placement worker before and during meeting Makes plea offer and negotiates with other counsel

Permanency Planning Worker/PPW.

 Has developed a proposed treatment plan based on:  identified needs and strengths  reasons for removal  initial interviews and/or psychosocial evaluation completed as part of assessment plan  Has proposed treatment plan available to discuss at meeting 27

Pre-Adjudication/Mediation, cont.

GAL and YA.

 Meets with client before and independently to explore child’s position (if any) on legal case and treatment needs  Determines, discusses and arranges client’s attendance at the Meeting as appropriate.

 Presents child’s position on legal case and treatment needs 28

Pre-Adjudication/Mediation, cont.

Respondent/RA.

 Meets with client before the meeting.

 Explores client’s treatment needs independently of the department based on client’s expressed needs.

 Takes directions and counsels client on going to trial or entering no contest plea.

Judge.

 A signed order for mediation helps preserve the confidentiality of the process.

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The Adjudicatory Hearing (may be separate from Disposition)

Why. To determine:  whether the child is abused or neglected, and  whether aggravated circumstances exist, if alleged  Is a trial on the merits of the allegations in the petition.

(If new factual allegations arise, an amended petition is required) Who. Parties, their attorneys, and witnesses.  A child under 14 may be excluded if the court finds exclusion is in the child’s best interest.

 A child who is 14 or older may be excluded only if the court makes a finding of a compelling reason to exclude and states the factual basis on the record.

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Commencing the Adjudicatory Hearing

The Court must commence the adjudication within 60 days of the latest of:  service of the petition on the respondent,  the termination of any diversion agreement;  the filing of an order declaring a mistrial or a new trial;  The filing in the district court of the mandate or order disposing of an appeal. 31

Extensions of Time to Commence the Adjudicatory Hearing

Rule 10-320(C) Extensions may be granted for good cause shown by:  the Children’s Court judge, provided that the aggregate of all extensions shall not exceed 30 days; or  the New Mexico Supreme Court. When granted by the Supreme Court, there is no 30-day limitation, but the Court will fix the time limit for commencing the adjudication. 32

Failure to Timely Commence The Adjudicatory Hearing

§ 32A-4-19: If the adjudicatory hearing is not timely commenced, the petition SHALL be dismissed with prejudice. New Rule 10-343: If the adjudicatory hearing is not timely commenced, the petition MAY be dismissed with prejudice OR the court may consider other sanctions as appropriate.

  “Commence and continue” Despite dismissal, CYFD can still file another petition based on additional investigation.

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Burdens of Proof for Adjudication

CYFD bears the burden of proving abuse or neglect and aggravated circumstances, if alleged.  Failure to meet the Burden of Proof: If CYFD does not produce evidence to meet its burden, the child must be returned to the custody of the respondent and the case dismissed. Burden of Proof. Clear and convincing evidence. Burden of Proof for an Indian Child. Evidence beyond a reasonable doubt.

The Rules of Evidence apply. 34

Adjudication & Disposition

§§32A-4-20 through -22

CCA.

 Notice of Disclosure of required information (including reports at least 15 days before adjudication). Rule 10 308(A)(3)  Notice to parties, fosters and tribe  Subpoenas/calls witnesses  Presents Dept’s position and/or agreed upon legal basis for no contest plea  Requests findings, including findings required by ICWA  Drafts judgment 35

Adjudication & Disposition

, cont.

Investigator and PPW.

 Are both witnesses and the Department’s clients  Send proposed findings of fact, report and treatment plan to counsel 5 days before disposition. §32A-4-21 36

Adjudication & Disposition, cont.

RA.

       Reviews and ensures that report, findings of fact and treatment plan are accurate and best for client Develops case with client Subpoenas witnesses Cross-examines witnesses If needed, may consult with client’s criminal defense attorney 10-306.1 Requires disclosure of court ordered diagnostic examinations and evaluations to the parties (but not the court) at least 5 days before the adjudicatory hearing 10-321(A) requires predisposition reports 5 days before disposition 37

Adjudication & Disposition, cont.

GAL.

 Presents child’s position  Presents GAL’s opinion of the child’s best interest  Child may be present unless best interest to exclude

YA.

 Presents child’s position  Arranges client’s presence unless there are compelling reasons to exclude 38

Adjudication & Disposition, cont.

Judge.

 Determines whether abuse or neglect was proved by clear and convincing evidence  If burden of proving abuse or neglect is NOT met, Judge dismisses case and returns child to parent, guardian, custodian and may refer to Dept for services,  Enters order for legal custody.

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Findings of Abuse or Neglect

A finding of abuse or neglect:  results in a final, appealable order, and  establishes the factual basis for everything that follows. When the court makes a finding of abuse or neglect, it retains jurisdiction to:  award custody of the child, and  order of a treatment plan to mitigate and correct the conditions and causes of the abuse or neglect. The court’s specific findings as to the causes and conditions of the abuse or neglect become the law of the case. 40

Findings of Aggravated Circumstances

If the petition alleged aggravated circumstances, the Court must:  make and record its findings on whether aggravated circumstances were proved at trial, or  state that a sufficient factual basis exists for any admission of aggravated circumstances. 41

The Court Order

The order should:       include findings concerning the existence of abuse, neglect, or aggravated circumstances, include findings of specific facts and circumstances related to reasonable efforts to prevent removal or reunify the family, provide for the custody of the child pending the next proceeding, include a finding that the custody arrangement ordered by the court is in the child’s best interest, include a finding that reasonable efforts were made to place siblings together unless this would be contrary to the safety or well-being of any of the siblings, or, if siblings were not placed together, whether they have been provided reasonable visitation or other ongoing interaction, unless such visitation or interaction would be contrary to the safety or well-being of any of the siblings, and impose a treatment plan that aims to mitigate and correct the conditions and causes of the abuse or neglect. 42

The Predisposition Study & Report

A detailed study of family needs and strengths, including the impact of the case on the child, is conducted by the permanency planning worker.



2009 changes: the predisposition study and report must address the child’s educational needs.

Based on this analysis of the family and the case, the CYFD team develops a treatment plan, often with input from the other parties.

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The Treatment Plan

The Plan must:  ensure the child’s physical, medical, psychological, and educational needs are met;  set forth services to be provided to the child and parents aimed at facilitating permanent placement of the child in the parent’s home, including visitation arrangements and medical, educational, and therapeutic services for the child; and  focus on changing the parental behavior(s) that caused the child’s removal from the home.

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Reasonable Efforts & the Treatment Plan

The Court may determine that reasonable efforts to preserve and reunify the family need not be included in the treatment plan if:  the efforts would be futile;  aggravated circumstances were proved (or admitted) during the adjudication; or  CYFD pled and proved that the parent previously had his or her parental rights to another child involuntarily terminated. 45

Effect of the Reasonable Efforts Findings

If the court decides that reasonable efforts to reunify the family are NOT required, it must schedule a permanency hearing within 30 days. If reasonable efforts continue to be required, then:  CYFD must make reasonable efforts to implement and finalize the permanency plan in a timely manner, and  The Court must hold an initial judicial review hearing within 60 days.

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The Dispositional Hearing

Why. To establish legal custody of the child, set visitation arrangements if appropriate, adopt a treatment plan, and determine appropriate findings of fact. When. The Dispositional Hearing may:  follow immediately after the adjudication, or  commence within 30 days after the conclusion of the adjudicatory hearing. Who. The parties, attorneys, witnesses, the CASA volunteer, and sometimes the foster parent, preadoptive parent, or relative providing care.   A child under 14 may be excluded if the court finds exclusion is in the child’s best interest.

A child who is 14 or older may be excluded if the court makes a finding that there is a compelling reason to exclude the child and states the factual basis on the record. 47

Possible Dispositions

The Court may:    Return the child to the parent, with or without protective supervision by CYFD; Transfer custody of the child to the non-custodial parent; or Place or continue the child’s placement in the legal custody of CYFD. If the child is an Indian child, the disposition should:   comply with ICWA placement preferences or the placement preferences of the Tribe, and maintain the child’s cultural ties. 48

Developing a Permanency Plan at the Outset of the Case

CCA. Reunification is initial plan unless aggravated circumstances or abandonment PPW. Develops treatment plan appropriate for the child's permanency plan; concurrent planning for all children 3 and under and as appropriate GAL. After consultation with client makes best and expressed interest suggestion YA. After consultation with client makes expressed interest suggestion Judge. Approves (or not) plan proposed by Dept at trials and hearings 49

Concurrent Planning

What is it? Concurrent planning allows simultaneous pursuit of reunification and an alternative permanency plan, preferably adoption.

Why. To reduce the time a child spends in foster care before achieving permanency. When. § 32A-4-29(F) requires concurrent planning to begin by the time a TPR motion is filed.  In practice, concurrent planning begins much earlier (when reunification is no longer the permanency plan).

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Concurrent Planning

CCA. Staffs case with PPWs.

Investigator/PPW.

 identifies concurrent foster home,  works with foster family to assist with reunification  as well as with eventual adoption if necessary (not easy…) RA. Counsels client about meaning of concurrent planning.

GAL and YA. Independently investigates and determines appropriateness of concurrent planning.

Judge. Will be asked to approve concurrent planning in a hearing. What should judge consider?

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Citizen’s Review Boards (CRB) 32A-4-25 & 25.1 (A) (not a court hearing)

GAL. Should attend the CRB. If not possible, GAL writes letter or report and asks client to write to CRB (CRB sends form to YA to forward to child) PPW. Required to attend the CRB and make full report YA. Should attend the CRB, decides, with client, if client should attend, if not possible, writes letter or report and asks client to write to CRB (CRB sends form to YA to forward to child) RA. Decides with client if either should attend the CRB, if not, attorney sends letter or report CASA. Should attend the CRB Judge. Reviews the recommendations written by the Board 52

The Initial Judicial Review

Why. To ensure that everyone is engaged in the treatment plan, the treatment plan is working properly, and to modify the treatment plan if necessary. When. The IJR must be held within 60 days of the disposition. Who. The parties, attorneys, GaLs, witnesses, the CASA volunteer, the foster and preadoptive parent, or relative providing care, treatment providers and the CRB representative.   A child under 14 may be excluded if the court finds exclusion is in the child’s best interest.

A child who is 14 or older may be excluded if the court makes a finding that there is a compelling reason to exclude the child and states the factual basis on the record. 53

Initial Judicial Review: §32A-4-25

CCA.

  Summarizes case status, compliance with treatment plan. May use reports, informal statements or sworn testimony of PPW,  presents permanency plan and requests findings

PPW.

  Provides report to court, CRB, and parties which summarizes status of children, parents’ compliance with treatment plan presents in court as needed;

CASA.

 Assists ct in determining best interest of child by investigating and submitting reports, monitors compliance and case progress 54

Initial Judicial Review, cont.

RA.

 Notice to client and arrange participation  Show diligent and good faith efforts by parent to comply with treatment plan and maintain contact with child

YA.

 investigate and present expressed interest of child,  after consultation with client, may arrange client’s appearance

GAL.

 investigate and present expressed and best interest of child  after consultation with client, may arrange client’s appearance

Judge.

  determines level of implementation of Treatment Plan, makes orders to ensure compliance and to protect safety of the child,   makes custody (not placement) decisions, determines whether progress is being made to establish a stable and permanent placement for child 55

Development of On-going Treatment Plans

CCA.

Consults with client

PPW.

Using reports and observation, develops treatment plans appropriate for individual parties

GAL or YA.

Using reports and consultation with client, can request PPW change the treatment plan

RA.

Using reports and consultation with client, can request PPW change the treatment plan 56

On-Going Placement Decisions

CCA. If a move proposed, CCA provides 10-day notice of change of placement to parties, unless there is an emergency. §32A-4 14.

PPW. Dep’t has discretion to make placement decisions. Many districts use FCMs in this decision-making process.

RA. May object to change in placement, but objection does NOT stop move.

YA and GAL. May object to change in placement. Requesting a hearing stops the move. 32A-4-14(B).

Judge. Can modify placement only if Dep’t abuses its discretion in making placement.

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Change of Permanency Plan

CCA.

  Staffs case with PPWs.

Reviews TPR requirements if change of plan to TPR is recommended.  Presents proposed change of plan to court. 

PPW.

Prepares TPR Motion if plan is changed to TPR/adoption.

  Elicits information from parties and providers in a Change-of-Plan Staffing or FCM (not a court hearing).

Makes recommendation for Permanency Plan. 58

Change of Permanency Plan, cont.

YA. With investigation, consultation with, and counseling of client, YA presents position in Change-of-Plan Staffing.

GAL. With investigation, consultation with, and counseling of client, GAL presents position in Change-of-Plan Staffing. Judge. Approves or disapproves requested change-of-plan in a hearing.

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Pre-Permanency Hearing Meeting

§ 32A-4-25.1(A) Why. To discuss the Department’s proposed permanency plan and to try to reach consensus about a plan.

 What is a permanency plan? A determination by the Court that the child’s best interest will be served by:  Reunification,  Placement with a permanent guardian,  Placement for adoption (after TPR or relinquishment),  Placement in CYFD’s legal custody, with the child in the home of a fit and willing relative, or  Placement in CYFD’s legal custody under a planned permanent living arrangement. 60

Pre-Permanency Hearing Meeting, cont.

When. Not less than five days before the Initial Permanency Hearing. Rule 10-325(D).

 Best practice: The Court should schedule the Meeting at the initial judicial review hearing. Who. All parties to the permanency hearing.  The social work supervisor may facilitate the meeting.

 The CASA volunteer, foster parent, and potential permanent caregivers should be invited.  Therapists or others with useful information may be invited. 61

Pre-Permanency Hearing Meeting

§32A-4-25.1(A)

CCA.

Presents Dept’s position on permanency with PPW

PPW.

Ct.

Reviews past compliance of parents. If plan still reunification need to develop transition home plan for

CASA.

May have distinct information on child

RA.

Presents info on compliance and develops a tx plan that serves the child’s best interest and parent's interest

YA or GAL.

best interest interview client and consider arranging attendance, and develop a tx plan that serves the child’s

Judge.

May schedule for the parties, but does not participate.

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The Permanency Hearing

Why. To adopt a permanency plan that is in the child’s best interest. § 32A-4-25.1.

When. Within the EARLIEST of the following:  6 months after initial judicial review hearing,  30 days after a judicial determination that reasonable efforts toward reunification are not required, or  12 months of the child entering foster care.

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Entering Foster Care Defined

§ 32A-4-25.1

A child enters foster care on the earlier of:  The date of the first judicial finding of abuse or neglect, or  60 days from the date the child was removed from the home. 64

The Permanency Hearing: Evidence and Due Process

Rules of Evidence. Do not apply, but all testimony is subject to cross-examination.

Due Process Protections Attach. Due process requires basic protections at critical stages of abuse/neglect proceedings.  The Permanency Hearing is a critical stage. Maria C., 2004-NMCA-083. Burden of Proof. There is no presumption that reunification is in the BIC. The Court must consider the evidence presented and order one of the permissible permanency plans.

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Initial Permanency Hearing (32A-4-25.1)

CCA.

 Using reports, informal statements or sworn testimony of PPW, summarizes case status, compliance with treatment plan. Consults with client and arranges any needed witnesses  At least once every 12 months, CYFD must seek finding of reasonable efforts to meet ASFA requirements.

PPW. Prepares and submits 2 reports:

 1)Progress Report. A progress report on the child to the local CRB describing reasonable efforts toward reunification and achieving permanency.    The CRB may report its findings and recommendations to the Court.

2)Court report to court and parties, due 5 days before hearing summarizes the status of children and the parents’ compliance with treatment plan, proposes a perm plan and any other changes to disposition in the form of a new treatment plan Presents in court as needed.

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Initial Permanency Hearing, cont.

GAL and YA

 notice to, and meet with, client, arranges needed witnesses  arranges client’s attendance after consultation, barring compelling reason for youth’s absence

RA.

  notice to client and/or arrange participation review report and proposed treatment plan and consult with client, present evidence, as needed

CASA.

 Conducts independent review of case and report to Court.

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The Permanency Hearing, cont.

Judge.

 Orders a permanency plan   If reunification, must order transition plan and set Perm review hearing within 3 months Consults with the Child. Federal law requires the court to consult with the child in an age appropriate manner about the proposed permanency plan.  Federal guidelines allow this consultation to take place through the child’s GAL or YA, but the preferred practice in NM is to involve the child as much as possible. 68

Is Reunification Still a Viable Option?

At the Permanency Hearing, the Court must decide whether reunification is still viable. At the end of the hearing, the Court must order one of the permissible permanency plans (in order of preference):      Reunification Placement for Adoption (after relinquishment or TPR) Placement with a person who will be the child’s permanent guardian Placement in CYFD’s legal custody with the child placed in the home of a fit and willing relative.

If none of these options are appropriate, then placement of the child in CYFD’s legal custody under a planned permanent living arrangement. 69

New Reasonable Efforts Findings

If reunification is no longer the plan, the judge must make findings about whether the department made reasonable efforts to identify, locate, and study grandparents and other relatives for children who cannot be reunited with their parents.

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Reasonable Efforts to Finalize a Permanency Plan

ASFA requires the Court to determine whether CYFD made reasonable efforts to finalize a permanency plan. This determination must be:  made within 12 months of the child’s entry into foster care,  explicitly documented,  made on a case-by-case basis, and  included in the court order. 71

Adopting a Transition Home Plan

If the court adopts a plan of reunification, it will also adopt a plan for transitioning the child home and schedule a permanency review hearing within 3 months. The transition plan should have been developed (in a FCM) or even at the Pre Perm before the Permanency Hearing.

72

Developing a transition home plan

CCA. Consults with and advises PPW, participates in FCM PPW. Usually first presenter in FCM and has materials, such a s a blank calendar.

Respondent/RA. Participates in FCM with client GAL or YA. Consults with client and arranges participation in FCM as appropriate Judge. may have input at a hearing or be asked to approve proposed plan after the fact 73

Permanency Review Hearings

Why. To review progress toward reunification and to determine if an alternative permanency plan is in the BIC. When. If the PP is reunification, then within 3 months of the Permanency Hearing if the child has not been returned home.

If CYFD retains legal custody of the child, the Court must:  hold a permanency hearing every 12 months, and  at least once every 12 months determine whether reasonable efforts to finalize the PP have been made. Rules of Evidence. Do not apply, but all parties may present evidence and cross-examine witnesses. Foster parents have the right to be heard.

74

Permanency Review Hearings

At the Permanency Review Hearing, the Court must decide whether to:  change the Permanency Plan,  dismiss and return custody of the child to the parent, guardian, or custodian, or  return the child to the p/g/c, subject to conditions or limitations* imposed by the Court. These may include:  protective supervision and  continuation of the treatment plan.

*Any conditions and limitations may last no more than 6 months.

75

Permanency Review Hearing

§§32A-4-25.1(C) & (D)

CCA.

 summarizes case status and compliance with treatment plan  may use reports, informal statements or sworn testimony of PPW

CASA.

 Conducts independent review of case and reports to Court

PPW.

   provides report to court and parties (due 5 days before hrg) presents testimony in court as needed summarizes status of children and parents’ compliance with treatment plan 76

Subsequent Permanency Hearing, cont.

Guardian ad Litem and YA

  notice to client and consult after consultation, arrange client’s attendance barring compelling reason for absence of youth

RA.

 notice to client and/or arrange participation   review report and proposed treatment plan consult with client

Judge.

 changes plan from reunification to an alternative,   dismisses case and return, or returns child with protective supervision 77

Subsequent Judicial Review Hearings

Why. To review CYFD’s progress in implementing Ct. orders, if involved, the R’s compliance with the treatment plan, and if progress is being made toward stability and permanency. When. The first Judicial Review Hrg must be held within 6 months of:  the conclusion of the permanency hearing, or  a decision on a motion for TPR or permanent guardianship.  then every 6 months thereafter.

Who. The parties, their attorneys (including GAL and YA), foster parents, the CASA, the CRB (by report), and possibly treatment providers and witnesses. The Rules of Evidence. Do not apply, but all parties may present evidence and cross-examine witnesses.

78

Subsequent Judicial Review Hearings, cont.

The Court Order. Must include findings of fact and conclusions of law. The findings should address:      The reasonableness of CYFD’s efforts to implement the treatment plan, preserve and unify the family, and finalize the permanency plan or why reasonable efforts are not required; The R’s compliance with the treatment plan, Whether continuation of custody is in the child’s best interest, Whether the treatment plan maintains the child’s cultural ties, and Whether ICWA or tribal placement preferences have been followed. Disposition. The order should select one of the permissible dispositions. 79

Permanency Options

 Reunification  Placement for Adoption (after relinquishment, consent, or TPR)  Placement with a person who will be the child’s permanent guardian  Placement in CYFD’s legal custody with the child placed in the home of a fit and willing relative.

 If none of these options are appropriate, then placement of the child in CYFD’s legal custody under a planned permanent living arrangement. 80

Termination of Parental Rights

To free children for adoption: the state terminates legal rights:  of any and all persons who have a constitutionally protected interest in the custody of the child,  even those who may never have been present as parents. Rare situations exist in which TPR is warranted even if adoption is not going to occur.

Because of the fundamental nature of parental rights, the court must accord due process.  Notice and a meaningful opportunity to be heard  Right to counsel  Right to appeal 81

TPR

§ 32A-4-28

Statutory grounds for TPR:

 Abandonment  Inability to parent cannot be cured in the foreseeable future despite reasonable efforts to assist  “Presumptive Abandonment” - parent-child relationship has disintegrated and a psychological parent-child relationship with a substitute caregiver has developed.

Burden of Proof. Clear and convincing evidence (but if Indian child, then evidence must be beyond a reasonable doubt) .

82

REASONS TO NOT FILE TPR

32A-4-29(G). (1) parent has made substantial progress; likely that child can return home within 3 months; and the child's return in BIC; (2) child has close and positive relationship with parent plan other than TPR will provide the most secure and appropriate placement for the child; (3) 14 and over, opposed to TPR and likely to disrupt adoptive placement (4) parent terminally ill, but in remission, and doesn’t want rights to be terminated; if the parent has designated a guardian for the child; (5) child can’t function in a family setting. Requires status review every 90 days unless a final court determination that the child can’t be placed in a family setting; (6) grounds do not exist for termination of parental rights; (7) the child is an unaccompanied, refugee minor and the situation regarding the child involves international legal issues or compelling foreign policy issues; or (8) adoption is not an appropriate plan for the child. 83

TPR: Indian Child

§ 32A-4-28(E) TPR involving an Indian child requires:  Proof beyond a reasonable doubt that:  Continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.  Expert testimony.  Specific findings that the requirements of ICWA have been met. § 32A-4-29(K). 84

Termination of Parental Rights (TPR)

§§32A-4-28 & -29 CCA. Typically files (but not always)     presents Dept’s position subpoenas/calls witnesses requests findings drafts judgment  discloses all reports required by Rule 10-308(A)(3) in a timely manner (at least 15 days before TPR hearing.)  If motion to TPR filed by another party, CCA may take over/join in litigation or move that motion is premature and seek denial

Investigator and PPW.

 Dept. witness and client 85

Termination of Parental Rights, cont.

RA.

 develops case with client and arranges meaningful participation of client  subpoenas witnesses, if needed  participate fully in hearing (present evidence, examine witnesses, make objections to preserve error for appeal) GAL and YA. (could file for TPR)  present child’s position and GAL also presents opinion of BIC  may arrange for child’s participation, arranges witnesses and examines witnesses in court, preserve error 86

Termination of Parental Rights, cont.

Judge.

 make reasonable attempts to facilitate meaningful participation of respondent in proceeding  SHALL terminate under certain circumstances  if so, must appoint custodian and fix responsibility for the child’s support,  make ICWA findings 87

Relinquishment (or Consent?)

§ 32A-5-21 In many instances, especially where there is a possibility of an “open adoption,” the parent may consent to a voluntary relinquishment of parental rights.  Relinquishment to CYFD can NOT be conditioned upon an open adoption.  Relinquishment requires counseling and judicial verification that the relinquishment is knowing and voluntary.  When relinquishment involves an Indian Child, the relinquishment must satisfy ICWA requirements.

88

Relinquishment: Indian Child

§ 32A-5-21, 25 U.S.C § 1913 When relinquishment involves an Indian Child, ICWA requires the relinquishment to be:  in writing  signed before a judge, and  accompanied by a judge's certification the person understood the contents of the writing. Withdrawal. Voluntary terminations may be withdrawn before a final decree is granted. Vacating Adoption Decree. A final decree of adoption of an Indian child may be vacated if the relinquishment provisions were not followed. 89

Adoption

Adoption may be considered in the same cause as the TPR. The Court may grant adoption in the A/N case if it finds that:  Parental rights should be terminated;  The requirements of the Adoption Act have been satisfied;  The prospective adoptive parent is a party to the case; and  Good cause exists to waive the filing of a separate petition for adoption. 90

“Open” Adoption:

§32A-5-35

Open adoption can be pursued:  with relinquishment or TPR, but  relinquishment cannot be conditioned on open adoption  with or without mediation  Alternatives to mediation must be specifically considered All counsel:     Advise their own clients Work out agreements in a pre-mediation session setting proposed framework of biological and adoptive parents’ contact and if extended family involved Pick 1 attorney to oversee entry of any such agreement in adoption Any such agreement must be in the best interest of the child 91

“Open” Adoption, cont.

CCA.

 represents the Department  may be involved in pre mediation, not usually in mediation

CASA.



PPW.

may be involved in pre mediation because of unique knowledge of child or children, not usually in mediation  front line contact with potential adoptive family  explains benefits and detriments of open adoption  refers family to private counsel  may be involved in pre mediation, not usually in mediation 92

“Open” Adoption , cont.

GAL.

  Counsels client in age appropriate manner. May be involved in pre mediation, not usually in mediation, unless child is present and should have counsel

YA.

 counsels client in age appropriate manner  teen may be present in negotiations, may or may not want representation RA. Counsels client that:  Open adoption is not a quid pro quo 

Judge.

Open adoption must be a good decision for the child independent of the promise of contact with child   Court order for mediation can ensure confidentiality.

inquiry as to open adoption can support entry of terms 93

Relinquishment:

§32A-5-24

CCA.

  sets hearing and notices parties, etc. drafts relinquishment form and ideally distributes before hearing

PPW.

   talks to parent about relinquishment or consent arranges relinquishment counseling with counselor with required certification to explain what relinquishment means and explain possible alternatives (which may not really be available) counselor to prepare counseling narrative 94

Relinquishment:

§32A-5-24

GAL and YA.

 Counsels child in age-appropriate manner.  Technically, child could be present

RA.

 counsels parent about effect of relinquishment  permanent unless Indian Child (relinquishment may be revoked before adoption of child)  may preserve open adoption in some manner

Judge.

 Verifies whether relinquishment is voluntary  May order on-going support (rare, if at all) 95

Permanent Guardianship 32A-4-31 and 32

Permanent Guardianship is possible when:  Respondent remains unable to provide for the child’s safety and welfare, even after services and efforts to assist, and either  TPR is inappropriate because the parent-child or other family relationships still have value so, OR  Adoption unlikely under the circumstances  Identified guardian agrees to placement with no financial support from state and no Medicaid 96

Permanent Guardianship, cont.

Permanent Guardianship:    assures that the child will have a consistent adult decision maker, but does not sever the parent’s interests irrevocably; transfers legal responsibility and legal authority for the child to a third party who has offered to become the child’s guardian; and is not necessarily perpetual.

 The court retains jurisdiction to dissolve or modify the guardianship upon a showing of changed circumstances by either the parent or the guardian. The guardian is almost always a relative. Ideally, the guardian is a relative with whom the child is already familiar.

97

Permanent Guardianships

ANY PARTY may file for permanent guardianship and give notice to parties, fosters, CASA

CCA.

 Typically files and gives notice,  may litigate guardianship

RA.

 represents client and arranges meaningful participation in hearing.

98

Permanent Guardianships, cont.

GAL and YA

 Presents child’s position AND Guardian ad Litem presents opinion of the child’s best interest  may arrange client’s participation and  Child over 14 may nominate and court SHALL appoint unless not BIC

Judge.

 Makes decision based on evidence,  may include visits with siblings, natural parents, other relatives  and other provisions necessary to rehabilitate (sic) the child or provide for the child’s continuing safety and well-being.

99

Appeals 12-201, -206, -303, -304, -305.1

Notice of Appeal. The Notice must be filed in the district court within 30 days of the entry of the judgment being appealed. Final Orders Appealable as of Right. Orders dismissing an A/N petition, orders finding abuse or neglect, TPR orders, and “any other final order.” Rule 12-201. Docketing Statement. Trial counsel must file the docketing statement within 30 days of filing the notice of appeal.  The Docketing Statement must comply with Rule 12-208,  clearly state the grounds for appeal and  include specific references to the record and legal authority. 100

Appeals

Appellant’s counsel (whether CCA, GA, YA or RA) files notice of appeal and docketing statement, and gives notice to everyone

CCA. Presents Dept’s position.

RA.

 Files Notice of Appeal, then Docketing Statement,   must give proof of indigency to Ct of Appeals Must request appointment of appellate attorney Rule 12-208

GAL or YA.

 

Judge.

 Children’s Court retains jurisdiction during pendency of appeal  at a minimum files entry of appearance in the Ct of appeal may need to brief issues may hold hearing to determine eligibility for appointed appellate counsel 101

Adoption:

§32A-5-1 et seq.

Adoption Attorney.

(new player)  Presents petition to adopt in existing cause or files new 

CCA.

Represents adoptive parents.

 Receives notice of petition  determines, in consultation with PPW, if Dept. needs more information and/or should intervene. §32A-5-6

Judge.

  Many required findings If requirements not met, court must deny petition and determine who will have custody 102

Adoption, cont.

RA.

May continue in case for purposes of notice only  to ensure entry of Open adoption agreement, if any,  or affidavit for contact,  May need to request specific payment

GAL.

 presents child’s position AND  GAL’s opinion of the child’s best interest  child 10 and over must be counseled

YA.

 Presents child’s position.

 child must consent 103

On-going Permanency (12 mos) and Judicial

Reviews (6 mos) § 32A-4-25 and - 25.1(F) CCA. presents Dept’s position, requests findings, and drafts judgment PPW. before each review sends report and treatment plan to all remaining parties CASA. conducts independent investigation and reports to the court

GAL and YA

 Presents child’s position (AND GAL’s opinion of the child’s best interest)  arrange child’s participation barring compelling reason for youth

Judge.

  approves permanency plans and treatment plans, makes additional findings in best interest of the child 104

Possible Out of Court Meetings for Clients and/or Counsel

Treatment Team Meetings – Monthly review for children in Treatment Foster Care FCMs – Family Centered Meetings – to address Changes of Plan or Placement COPs – Change of Plan or Placement Icebreakers – For bio parents to meet foster parents FSS –Family Support Services – what support services needed for foster family?

La Entrega – for foster parents to return child to bio parents 105