Transcript Power Point for How a Child Enters the System

HOW A CHILD
ENTERS
THE SYSTEM
Dan Pearlman
[email protected] or [email protected]
Grace Hernandez
grace.hernandez @state.nm.us
RACE AND ETHNICITY OF ALL CHILDREN
Total Population
Bernalillo 1
Children Under
Children
19 yrs of
Under 19 yrs
Hispanic Origin
162,306
87,329
Total Population 2
Bernalillo
New Mexico
592,570
1,854,938
White
84.6%
93.6%
72.5%
66.8%
Black
3.8%
2.0%
2.8%
1.9%
American Indian or Alaskan Native
6.2%
2.1%
4.3%
9.5%
Asian
Native Hawaiian or Other Pacific
Islander
Some other Race
1.9%
0.5%
2.0%
1.1%
0.1%
0.1%
20.0%
0.1%
3.3%
1.7%
14.9%
17.0%
44.3%
42.1%
144,124
511,768
10.0%
14.5%
Hispanic or Latino
Under 18 yrs
% of Families Living under the
poverty Level
1. Source: U.S. Census Bureau, Population Division\Bureau of Business and Economic Research, Univ. of
New Mexico.
2. Source: U.S. Census Bureau\State and County QuickFACTS
7/18/2015
2
Bernalillo County Reports
7/18/2015
4
BERNALILLO COUNTY PROTECTIVE SERVICES ACCEPTED REPORTS
QUARTER 1 SFY 09: JULY - SEPTEMBER 2008
In Home/Legal
83%
14%
In Home Services
3%
Legal
Accepted Reports
7/18/2015
5
PROTECTIVE SERVICES REPORTS AND INVESTIGATIONS
QUARTER 1 SFY 09: JULY - SEPTEMBER 2008
Investigations
County
Accepte
d
Substantiate
Total
Unsubstantiated
Reports
Investigations
d
Victim
County % of Number of
Rate per
State Total
Children
1,000
Investigations 1 Victims
Children2
Bernalillo
East
87
18.0%
395
82.0%
482
14.6%
147
7.4
Bernalillo
West
83
18.2%
374
81.8%
457
13.8%
121
7.4
Region
Total
1,069
170 18.1%
769
81.9%
939
28.4%
268
7.4
State Total
3,332
883 26.7%
2,418
73.3%
3,301
100.0%
1,399
10.9
Note: Not all “accepted reports” result in investigations completed during the period under review.
1. Both County and Regional data are calculated as a % of the State’s total investigations for the period under review.
2. For the quarterly 360 Degrees County Profiles Report this information is calculated by annualizing the quarterly
data. For the SFY Annual 360 Degrees County Profiles Report this information is calculated, based on four quarters
of reported data.
Source: SM01a02 and SM06a01
7/18/2015
6
Substantiated vs. Unsubstantiated
Unsubstantiated means only that the investigation
does not indicate that the child is abused or
neglected as defined by law.
It does not mean the reported incident did not
occur.
East/West Investigations
7/18/2015
8
Bernalillo County CPS Investigations
Qtr1 SFY 09 July-September
N=939
81.90%
18.10%
Substantiated
Unsubstantiated
7/18/2015
9
East/West Investigations
7/18/2015
10
Bernalillo County
Percent of Substantiated Allegations
Qtr 1 SFY 09 July-Sept
77%
20%
Physical Abuse
Sexual Abuse
Physical Neglect
3%
7/18/2015
11
CPS ALLEGATION TYPES OF CHILD MALTREATMENT
QUARTER 1 SFY 2009: JULY - SEPTEMBER 2008
Physical Abuse
County
Total
Sexual Abuse
Physical Neglect
Substantiat Unsubstantia
Unsubstantiat
Unsubstantiate
TotalSubstantiated
Total Substantiated
ed
ted
ed
d
Bernalillo
East
353 51
14.4
302 85.6% 37
%
6
16.2%
31
83.8% 913 208 22.8% 705 77.2%
Bernalillo
West
329 37
11.2
292 88.8% 68
%
6
8.8%
62
91.2% 751 137 18.2% 614 81..8%
Region
Total
682 88
12.9
594 87.1% 105 12 11.4%
%
93
88.6%
State Total
2,50
21.5 1,96
6,48 1,73
540
78.5% 316 64 20.3% 252 79.7%
26.8% 4,748 73.2%
6
%
6
6
8
1,66
345 20.7% 1,319 79.3%
4
Note: In every investigation there may be multiple allegations of maltreatment for one or more children. In
counties with small populations, very small numbers in any category may render suspect any data collected during
the period under review.
Source: SM06a01
7/18/2015
12
360 Presentation
Permanency Planning
Bernalillo County
East/West Area
Investigations/In-Home Services
Permanency Planning
Placement
7/18/2015
13
AGE OF CHILDREN IN CARE
QTR 1 SFY 09 JULY – SEPTEMBER
Age
Range
Bernalillo
East
County
County % of
County % of
Region Totals
Bernalillo
Region Totals
for Age
West County
for Age
Range
Range
Region
Total
0 - 1 Yr
17
48.6%
18
51.4%
35
1 - 5 Yrs
104
57.8%
78
42.2%
180
6 - 10 Yrs
40
51.5%
66
48.5%
136
11 - 15 Yrs
39
42.4%
53
57.6%
92
16 - 17 Yrs
21
48.8%
22
51.2%
43
Total
251
51.6%
235
48.4%
486
Source: Sm0907
7/18/2015
14
PERMANENCY/TIME IN CARE
(OF CHILDREN IN CARE 8 DAYS OR MORE)
PERIOD ENDING 9/30/08
BERNALILLO COUNTY
Average Months in Care
Bernalillo
21.0% months
New
Mexico
20.6% months
5% reduction (1.4 months=43 days)
7/18/2015
15
STATE PIP ITEM: PERIOD ENDING 12/31/08
(AFCARS 12 ROLLING MONTHS)
% with 2 or fewer
placements
(less than 12
months in care)
% with 2 or fewer
placements
(12-23 months in
care)
% with 2 or
fewer
placements
(24+ months
in care)
Bernalillo
73.3%
51.4%
34.6%
New
Mexico
78.3%
51.8%
29.0%
Goal
^5%+
^.4%+
Maintain
7/18/2015
17
Overview
Every person is required by law to report
suspected abuse or neglect. § 32A-4-3.
Only some of these reports reveal
circumstances serious enough to result in in
investigation, and only some investigations
reveal facts that warrant a court proceeding.
Overview, cont.
For the 12-month period ending March 31, 2006:

Reports of abuse or neglect: 23,629 (unique children)

Substantiated after investigation: 5,880 (24.9%)

Unsubstantiated: 17,749 (75.1%)

Cases opened for services: 2,425

Children entering foster care: 1,148

“Substantiated” means there is evidence child is abused
or neglected as defined by law.

“Unsubstantiated” does not mean the incident that was
investigated did not happen, it means the child does not
appear to be abused or neglected as defined by law.
Overview, cont.
In an emergency, medical personnel can hold a child
until law enforcement takes custody. Only law
enforcement personnel can take a child into
custody without a prior court order.
CYFD can not take custody of a child except from
law enforcement or by court order.
§§ 32A-4-4, -6, -7, -16.
Duty to Report: § 32A-4-3(A)
Every person, must report “including”:
a licensed physician;
 a resident or an intern examining, attending or treating a
child;
 a law enforcement officer;
 a judge presiding during a proceeding;
 a registered nurse;
 a visiting nurse; a schoolteacher;
 a school official;
 a social worker acting in an official capacity; or
 a member of the clergy

Why are these listed if the requirement includes
“every person”? -- because these may think they
have other duties/privileges - see next slide
Duty to Report, cont.
Any person who has information that is not
privileged as a matter of law (not as a matter of
ethical rules or conventions),
who knows or has a reasonable suspicion that a child
is an abused or a neglected child,
shall report the matter immediately to:
a
local law enforcement agency;
 CYFD;
a
or
tribal law enforcement or social services agency
for any Indian child residing in Indian country.
Immunity of Reporting Person
§ 32A-4-5(B)
“Anyone reporting an instance of alleged child
neglect or abuse or participating in a judicial
proceeding brought as a result of a report
required by Section 32A-4-3 NMSA 1978 is
presumed to be acting in good faith and shall be
immune from liability, civil or criminal, that
might otherwise be incurred or imposed by the
law, unless the person acted in bad faith or with
malicious purpose.”
What must be reported?
Abused Child: § 32A-4-2(B)

Abused child means a child who has suffered:
 or who is at risk of suffering serious harm
because of the action or inaction of the child's
parent, guardian, or custodian;

physical abuse, emotional abuse or psychological
abuse inflicted or caused by the child's parent,
guardian, or custodian;

sexual abuse or sexual exploitation inflicted by
the child's parent, guardian, or custodian;
25
Abused Child, cont.

Abused child means a child whose parent,
guardian, or custodian has:

knowingly, intentionally or negligently placed the
child in a situation that may endanger the child's
life or health; or

knowingly or intentionally tortured, cruelly
confined or cruelly punished the child.
26
Physical Abuse: § 32A-4-2(F)
Physical abuse includes, but is not limited to, any
case in which the child exhibits evidence of:



Skin
bruising
Bleeding
Malnutrition



Failure to
thrive
Burns
Bone
Fracture



Subdural
hematoma
Soft tissue
swelling
Death
AND . . .
27
Physical Abuse, cont.





There is no justifiable explanation for the
condition or death;
The explanation varies from the degree or nature
of the condition;
The explanation given for the death varies from
the nature of the death; or
Circumstances indicate that the condition or
death may not be the product of an accidental
occurrence.
In re Vincent L., 1999-NMCA-089, ¶ 9.
28
Emotional & Psychological Abuse

A child who suffers emotional or
psychological abuse is considered an abused
child.

But, the Children’s Code does not define
emotional or psychological abuse.
29
Emotional & Psychological Abuse, cont.


The Court of Appeals upheld a finding of Emotional Abuse
and Neglect based on the combined effects of mother’s:

Leaving children unattended for long periods;

Exposing them to dangerous situations;

Failing to understand their physical and emotional needs;

Failing to empathize with their feelings;

Being self-centered in her interactions with the children;

Exposing them to domestic violence;

Exposing them to substance abuse;

Showing an indifference to their needs in favor of her own;
and

Placing them with inappropriate caretakers.
Eventyr J., 120 N.M. 463 (Ct. App. 1995); see also State ex rel CYFD
v. Athena H, 2006-NMCA-113.
30
Sexual Abuse: § 32A-4-2(G)

Sexual abuse includes, but is not limited
to, the following criminal conduct:



criminal sexual contact,
incest, and
criminal sexual penetration
31
Sexual Exploitation: § 32A-4-2(H)

Sexual exploitation includes, but is not
limited to:



allowing, permitting or encouraging a child to
engage in prostitution;
allowing, permitting, encouraging or engaging a
child in obscene or pornographic photography or
filming or depicting a child for obscene or
pornographic commercial purposes, as those
acts are defined by state law.
32
Neglected Child: § 32A-4-2(E)

Neglected child means a child:


who has been abandoned by the child's parent,
guardian or custodian; or
who is without proper parental care and control or
subsistence, education, medical or other care or
control necessary for the child's well-being
because of:


the faults or habits of the child's parent, guardian or
custodian or
the failure or refusal of the parent, guardian or
custodian, when able to do so, to provide them.
33
Neglected Child, cont.


who has been physically or sexually abused, when
the child’s parent, guardian, or custodian knew or
should have known of the abuse and failed to
take reasonable steps to protect the child from
further harm; or
whose parent, guardian, or custodian is unable to
discharge his responsibilities to and for the child
because of incarceration, hospitalization or
physical or mental disorder or incapacity.
34
Abandonment: § 32A-4-2(A)

Abandonment includes circumstances when
the parent, without justifiable cause, LEFT
THE CHILD:


without provision for the child’s identification for a
period of 14 days; or
with others (including the other parent or an
agency) without provision for support & without
communication for:


3 months if the child was under 6 years old at the
beginning of the 3-month period; or
6 months if the child was over 6 years old at the
beginning of the 6-month period.
35
Abandonment & Safe Haven

Leaving an infant at a hospital in
accordance with the Safe Haven Act:

protects a parent, guardian, or custodian
from CRIMINAL PROSECUTION for child
abandonment, but

does NOT protect against abuse & neglect
proceedings.
36
Where are reports made?
What happens to a report?
CYFD Statewide Central Intake
8.10.2 NMAC
When SCI receives a report of alleged abuse or neglect, the
report is assigned an investigative priority.
 Emergency
Report: respond within 3 hours =
immediate danger
 Priority
One Report: respond within 24 hours =
serious allegations, but child in safe environment
 Priority
Two Report: respond within 5 calendar
days = past abuse/neglect, no immediate danger
Respond = face to face contact with alleged victim (child).
Screen In/Screen Out
Screen in means a report from a community
source which met requirements to make it a
referral
Screen out means didn’t meet requirements,
including out of home perpetrator, concerns do
not warrant an investigation, or the allegations
the same as a current investigation.
Emergency Report
Response required within 3 hours:
 When
the worker believes the identified victim is in
immediate danger, he/she immediately consults the
supervisor for approval of the emergency
prioritization.
The
supervisor arranges for immediate assignment
of the report for investigation.
 When
the situation is potentially life threatening, the
worker contacts the appropriate emergency
response personnel, including, but not limited to,
law enforcement and paramedics.
Examples of Emergency Report
Examples include, but are not limited to:
 an
abandoned infant or child;
 any incident alleging a recent serious trauma, such as
head injury, burns, or broken bones;
 reports alleging physical injury to an infant;
 reports alleging recent sexual abuse;
 reports alleging any potential life-threatening situation;
 requests from law enforcement for immediate response
to assist in the assessment of the immediate safety of
the child and/or adult; and
 allegation of abuse or neglect in foster or pre-adoptive
home.
Priority One Report
24-hour Response
If the intake worker assesses that the alleged victim
is not in immediate danger, but that a response by
CYFD is required within twenty four hours,
he/she completes the Protective Services Report,
and forwards the report to his/her supervisor as
soon as possible.
 The
supervisor reviews, approves and forwards the
report to the investigation supervisor for assignment.
Examples of Priority One Reports
Examples include, but are not limited to:
 Allegations
of physical injury where the alleged
victim is presently in a safe environment;
 Allegations of ongoing abuse or neglect where
the alleged perpetrator will not have access to
the child in the next twenty-four hours.
Priority Two Report
5 calendar days
If, based upon the information provided in the
report, the intake worker assesses that the
alleged victim is not in immediate danger;
he/she completes the Protective Services
Report, and forwards the report to his/her
supervisor as soon as possible.
 The
supervisor reviews, approves and forwards the
report to the investigation supervisor for assignment.
Examples of Priority Two Reports
Examples include, but are not limited to:
 Reports alleging a/n with no immediate
concerns for the victim’s safety or well being;
 Reports alleging physical abuse with no
present injury;
 Reports of a/n when the alleged perpetrator
no longer has access to the victim;
 Reports of abuse/n when a protective parent
or caretaker has already intervened.
Investigation, Reasonable Efforts,
and Removal
Purpose of CPS Investigation
8.10.3.8 NMAC
To assess safety of children who are the subjects of
reports of alleged abuse or neglect and to collect
and assess information to:
 determine whether the incident of child abuse
or neglect occurred,
 determine whether any child in the home
remains at risk for continuing abuse and
neglect, and
 assess the need for additional protective
services.
CPS Investigation
CYFD will conduct investigations for children in
the custody of:
 biological
 adoptive
 other
parents
parents
relatives or guardians or
 CYFD
(foster care, institutional care).
Conducting CPS Investigations
8.10.3.12 NMAC
CYFD gathers the information required to
determine the immediate safety of and
ongoing risks of harm to the child.
CYFD interviews/observes the alleged child
victim and all other children in the household
during the investigation.
Interviewing the Child
8.10.3.12 NMAC
Interviews at home: Children contacted at home are
interviewed only with the permission of the parent
or caretaker.
Interviews at public schools:
 public schools are required by § 32A-4-5 NMSA
to permit children to be interviewed concerning a
CPS investigation; and
 parental permission is not required to interview a
child at public school.
Interviewing the Child
8.10.3.12 NMAC
Interviews at private schools or in childcare
homes & facilities:
 a private school or childcare may deny
permission for CYFD to interview the child on
the facility grounds; and
 if permission is denied and exigent circumstances
are believed to exist, then CYFD determines
whether law enforcement should be contacted or
a court order obtained.
Interviewing the Child, cont.
8.10.3.12 NMAC
A child may be interviewed without parental
notification when CYFD determines that
notification could:
 adversely affect the safety of the child about
whom the report has been made; or
 compromise the investigation. § 32A-4-5(F).
If such a determination is not made prior to
interviewing a child, CYFD shall notify the parent
or guardian of the child who is being interviewed.
Interviewing the Child, cont.
8.10.3.12 NMAC
If CYFD interviews a child before notifying the
parents/guardians, it must notify the parents of
the interview within 24 hours.
CYFD informs all children that their participation in
the interview is voluntary. Children 14 years of age
and older must agree to participate in the
interview even when parental permission has been
given to CYFD.
Investigation Decision & Disposition
8.10.3.17 & 8.10.3.18 NMAC
CYFD makes an investigation decision and disposition
within 30 days of receipt of the report.
 Investigation Decision = determination that the
allegations are substantiated or unsubstantiated
Unsubstantiated means only that the
investigation does not indicate that the child is
abused or neglected as defined by law. It does not
mean the reported incident did not occur.
 Disposition = refer for services, file legal case
Investigation Decision &
Disposition, cont.
CYFD determines the investigation decision and
disposition of the investigation based upon the
service delivery matrix that considers:
 the
assessment of the child’s risk of future abuse
and/or neglect,
 the
needs and strengths of the family, and
 the
safety of the child.
Safety of the Child
8.10.3.9 NMAC
The safety of the child is the overriding concern
throughout the casework relationship with the family.
If the safety of the child ever conflicts with the
treatment or preservation of a family unit, the child’s
need for protection always takes precedence.
CYFD requests immediate assistance from law
enforcement if necessary to assess and/or secure the
safety of the child.
Child Sensitive Interviews:
2009 changes to § 32A-4-5
When possible, law enforcement shall interview
child victims and witnesses using child-sensitive
procedures.
Taking a Child Into Custody
§ 32A-4-6
A child may be held or taken into custody by a law
enforcement officer when the officer has
reasonable grounds to believe that the child:
(1) is suffering from illness or injury as a result of
alleged abuse or neglect, or
(2) has been abandoned, or
(3) is in danger from the child's surroundings,
and
removal from those surroundings is necessary.
Taking a Child Into Custody, cont.
§ 32A-4-6
A child may be held by medical personnel when
there are reasonable grounds to believe that the
child:
has been injured as a result of abuse or neglect
and
 may be at risk of further injury if returned to the
child's parent, guardian or custodian.

Taking a Child Into Custody, cont.
2009 changes to § 32A-4-6
Unless certain emergent circumstances apply:

the law enforcement officer must notify CYFD
before taking a child into custody; and

A protective services worker must conduct an onsite safety assessment to determine whether it is
appropriate to take the child into custody.
Taking a Child Into Custody, cont.
§ 32A-4-6
When a child is taken into custody, CYFD shall make
reasonable efforts to determine whether the child is
an Indian child.
Whenever an Indian child is taken into custody
because of allegations of a/n, the department shall
give notice to the agent of the Indian child's tribe
in accordance with ICWA.
Interfering with Protection of a Child
§ 32A-4-6
Any person who intentionally interferes with
protection of a child, as provided by § 32A-4-6(A),
is guilty of a petty misdemeanor.
This does not give CYFD right to enter a home without a
warrant (4th Amendment). Law enforcement can enter a
home without a warrant if exigent circumstances or
community caretaker protective function. However,
exclusionary rule does not apply. (Could create civil rights
lawsuit and CYFD SW’s are trained not to do it.)
Can Removal be Prevented?
If abuse/neglect is substantiated
OR
If child is taken into protective custody by law
enforcement
↓
ASK:
IS THERE A WAY TO LOWER THE RISK
WITHOUT HAVING TO REMOVE THE CHILD
FROM THE CAREGIVER?
(For example, remove the abuser, not the child)
Reasonable Efforts to Prevent Removal
§ 32A-4-7 and ASFA
State and federal law—and best practices—require that
reasonable efforts be made to prevent removal of the
child from the home, giving PARAMOUNT consideration
to the health and safety of the child.

CYFD offers available community services or in home services
to assist the parent to care for the child within the home or
family unit.

Noncustodial parents or other extended family members might
be able to provide temporary care while the dangerous or
neglectful condition is corrected.
If Removal Cannot be Prevented:
Legal Intervention
Legal intervention begins ONLY when:
less intrusive alternatives exhausted
or
the risk of serious harm is too great.
The Legal Case
Release from Custody
The child shall be released to the child's parent,
guardian or custodian, unless:
 the
department files a petition
 within
two days from the date that the child
was taken into custody.
Note: For CYFD to retain legal custody, the
abuse/neglect must be by “parent, guardian or
custodian” – the issue is the child’s safety and wellbeing in the home.
Filing a Petition and Motion for Ex
Parte Custody Order
Caseworker and supervisor meet with the CCA to
determine if a petition and motion for ex parte
custody order should be filed.

“Pre-removal” and “Pre-filing” staffings
The CCA must endorse on the petition that its filing
is in the best interest of the child.
Filing A Petition, cont.
If the child is already in CYFD’s emergency custody,
the petition and motion for an ex parte custody
order must be filed within 2 working days of child
coming into custody.
CYFD may file a motion for an ex parte custody order
if it believes the child’s welfare demands it, even if
the child is not already in custody. The order
allows CYFD to take custody without the
involvement of law enforcement.
Ex-parte Custody Orders: § 32A-4-16
At the time a petition is filed or any time
thereafter, the children's court or the district
court may issue an ex parte custody order upon:
 a sworn written statement of facts
 showing that probable cause exists
 to believe that the child is abused or neglected
and
 that custody under the criteria set forth in
§ 32A-4-18 is necessary.
Ex-Parte Custody Orders, cont.
The ex-parte custody order shall:
 be
served on the respondent
 by
a person authorized to serve arrest
warrants and
 shall
direct the officer to take custody of the
child and deliver him to a place designated by
the court.
The Rules of Evidence do not apply to the
issuance of an ex-parte custody order.
Time for Filing: § 32A-4-4(D)
The so-called 48 hour hold:
It’s two working days.
“When a child is taken into custody, the Department shall
file a petition within two days.” § 32A-4-4(D).
“The child shall be released to the child's parent, guardian or
custodian, unless the department files a petition within
two days from the date that the child was taken into
custody.” § 32A-4-7(D).
Notice Required: § 32A-4-7
If a child placed in the legal custody of the
department is not released to the child's parent,
guardian or custodian, CYFD shall give to the
child’s parent, guardian or custodian:
written
notice as soon as possible, and in no
case later than 24 hours, and
a
statement of the reason for taking the child
into custody.
Parent: § 32A-1-4(O)

Parent includes a biological or adoptive
parent IF he or she:

has a constitutionally protected liberty interest

in the care and custody of the child.
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Guardian: § 32A-1-4(H)

Guardian means:

a person appointed as a guardian by a court
or Indian tribal authority, or

a person authorized to care for the child by a
parental power of attorney as permitted by
law.
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Custodian: § 32A-1-4(E)

Custodian means:



an adult
with whom the child lives
who is not a parent or guardian of the child.
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What about notice to the “fathers”?
Acknowledged and Presumed fathers get
notice.
 Alleged and Psychological fathers get
notice IF they have a constitutionally
protected liberty interest in the care and
custody of the child.

Custody Prior to Adjudication:
§ 32A-4-18
Legal custody shall be returned to the parent, guardian or
custodian unless probable cause exists to believe:
 the child is suffering from an illness or injury and
the p/g/c is not providing adequate care for the
child;
 the child is in immediate danger from his
surroundings, and removal from those surroundings
is necessary for the child's safety or well-being;
Custody Prior to Adjudication, cont.
 the
child will be subject to injury by others if not
placed in the CYFD custody;
 the
 the
child has been abandoned by his p/g/c; or
p/g/c is not able or willing to provide
adequate supervision and care for the child.
Legal Custody: § 32A-1-4(N)
Legal custody:
 is
a legal status created by:
order
of a court of competent jurisdiction, or
operation
 that
of statute
vests in a person, department or agency
certain enumerated rights and duties.
Legal Custody, cont.
One with legal custody has the right:
 to
determine where and with whom a child shall live;
 and
duty to protect, train and discipline the child;
 and
duty to provide the child with food, shelter,
personal care, education and ordinary and emergency
medical care;
 to
consent to major medical, psychiatric, psychological
and surgical treatment and to the administration of
legally prescribed psychotropic medications pursuant to
32A-6-1 et seq., and
 to
consent to the child's enlistment in the armed forces.
The Foster Parent Does NOT have
Legal Custody
Under § 32A-1-4(G), foster parent means:
a
person,
 including
 licensed
a relative of the child,
or certified by
the department or
a child placement agency
 to provide care for children in the [legal] custody of
the department or agency.
The Children’s Court
The Children’s Code establishes a division in the
district court for each county known as the
“children’s court.”
The Children’s Court has exclusive original
jurisdiction over abuse or neglect proceedings for
all NM children not residing or domiciled on an
Indian reservation. §§ 32A-1-5, 32A-1-8(A).
Children’s Court Jurisdiction
In abuse/neglect cases where NM is the home state
under the Uniform Child Custody Jurisdiction and
Enforcement Act, §§ 40-10A-101 to 40-10A-403,
the court has jurisdiction over both parents to:
 determine
the best interest of the child and
 decide
matters incident to the court proceedings.
§ 32A-1-8(C).
 An
absent parent must be served
Children’s Court Jurisdiction, cont.
In a/n cases involving Indian children, the court
must inquire into the domicile and residence of the
child early in the case.
 Under
ICWA, the child’s tribe has exclusive jurisdiction
over the matter if the child resides or is domiciled on
the reservation.
 The
children’s court has only emergency jurisdiction to
protect the child until the tribe can assume jurisdiction
and the child is transferred to that jurisdiction. 25
U.S.C. § 1911(a) and 25 U.S.C. § 1922.