Transcript ARTICLE 4 ABUSE AND NEGLECT

ABUSE AND NEGLECT
General Provisions
Definitions 32A-1-4
The definition of “custodian” has been simplified and is
now an adult with whom the child lives who is not a parent
or guardian. The two examples that were in the definition,
employees of residential facilities and persons providing
out of home care, have been deleted. Custodians can be
named respondents in abuse and neglect petitions.
The definition of guardian has been changed to “a person
appointed … 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.” Note: The term “guardian” includes
guardians created under the law of sister states, not just New
Mexico.
The definition of “guardianship,” which described the duties
and responsibilities of the guardian, was deleted because the
powers and duties of the guardian are determined by the law, or
the document under which the person was appointed. There
are a number of different types of guardianship in New Mexico
and courts can create or limit the powers of a guardian in the
court order.
A definition of Indian Tribe has been added that is
consistent with the Indian Child Welfare Act. Indian
Tribe means “a federally recognized Indian tribe,
community or group pursuant to 25 U.S.C. § 1903(1).”
The definition of “legal custody” has been amended to include
a status created “by operation of statute.” This is intended to
clarify the status created when a law enforcement officer
places the child with the department in an emergency situation.
The department needs to able to consent to medical treatment
for the child and to place the child. The rights and duties of
the department have been amended to include “personal care”
of the child. The provisions making legal custody subject to
the powers of the parent and requiring that the duties of the
legal custodian be exercised personally have been deleted.
The definition of permanency plan has been amended to
reflect the language of the federal Adoption and Safe
Families Act. For example the phrase “return to parent”
has been changed to “reunification.”
The definition of reunification was added. The term
means a return to the parent or the home from which
the child was removed or a return to the noncustodial
parent.
A definition of protective supervision was added. Protective
supervision is an option for the court when the child is
being returned to the parent’s legal custody but the court
wants the department to monitor the child’s safety and wellbeing.
“Protective supervision” means the right to visit the child in
the home where the child is residing, inspect the home,
transport the child to court-ordered diagnostic examinations
and evaluations and obtain information and records
concerning the child.
ARTICLE 4 ABUSE AND NEGLECT
Most of the changes in Article 4 are made to achieve
consistency with federal law, the Adoption and Safe
Families Act (ASFA) and the 2003 amendments to the
Child Abuse Prevention and Treatment Act (CAPTA).
32A-4-3. Duty to report
A term is added which provides that law enforcement
officers who are responsible for investigating abuse or
neglect be “trained in the investigation of child abuse and
neglect.”
32A-4-4 Complaints; referral; preliminary
inquiry
A provision is added, consistent with the federal Child Abuse
Prevention and Treatment Act, which provides that the name
of the person making the report shall not be disclosed absent
consent or a court order.
A provision is added which requires the department to
advise the parent of the reports or allegations made.
32A-4-5 Admissibility of report in evidence;
immunity of reporting person; investigation
of report.
A provision is added giving the investigating entity the
responsibility to conduct the investigation in a manner that
will protect the privacy of the child and family, with
paramount consideration for the child’s safety.
A provision is added requiring the department to notify the
parents or guardians of a child to be interviewed unless the
department determines that notification would adversely
affect the safety of the child about whom the report is made
or compromise the investigation.
32A-4-18 Custody hearings
A provision is added which states that when the court
determines that probable cause exists, the court may
return legal custody to the parent and give protective
supervision to the department. The custody hearing is
early in the case when oftentimes only limited facts are
known. This provision allows more oversight of the
child until the court can have a full trial.
32A-4-20 Conduct of Hearings
If a child 14 or older is excluded from a hearing, the court
must make a finding that there is a compelling reason and
state the factual basis for the finding. This change was
also made in Article 3B.
32A-4-23. Disposition of a child with a
mental disorder or developmental disability
in a proceeding under the Abuse and Neglect
Act.
Subsections D and E have been amended to reflect the
practice in parts of the state where children’s mental health
proceedings are conducted separately from the Article 4
proceeding. A provision has been added allowing the child
to elect representation by the child’s attorney in the abuse
and neglect proceeding or counsel appointed in the mental
health proceeding.
32A-4-25 Periodic review of dispositional
judgments
Under Subsection H(5), the provision which allows the court to
make a finding that reasonable efforts to reunify the family are
not required when the parent has undergone a previous
involuntary termination of parental rights has been stricken.
Aggravated circumstances, which is another ground for not
requiring reasonable efforts to work with the parents, includes
a previous involuntary termination of parental rights. See 32A4-2(C)(4). The net effect of this change is to require the
department to plead and prove a previous termination of
parental rights as aggravated circumstances. This is important
to put parents on notice that, if aggravated circumstances are
proven, the case may be on a fast track to termination of
parental rights.
32A-4-25.1 Permanency hearings
This section has been amended to comply with the federal
Adoption and Safe Families Act. A provision has been added
which requires the court to conduct a permanency hearing no
later than 12 months after the child has entered foster care,
which is defined pursuant to the federal law as the date of the
adjudication or sixty days after the child was removed from
the home.
The rebuttable presumptions in the current law have been
eliminated. The proposed change simply requires the court to
order a permanency plan for the child at the conclusion of the
hearing.
The permanency plans now conform to those in the
definitions at 32A-1-4, as well as the federal Adoption and
Safe Families Act.
A new provision has been added requiring the court to adopt a
transition plan for cases where the permanency plan is
reunification. The court is also required to set a permanency
review hearing within three months, which may be vacated if
the child has been reunified with the parents. The purpose of
the permanency review hearing is to assure that the child does
not linger in foster care with a reunification plan.
At the permanency review hearing, the court shall hear
evidence and do one of the following: change the plan from
reunification to another plan, dismiss the case and return the
child to the child’s parents, or return the child to the parent
with conditions for the child’s safety, including protective
supervision in the department and continuation of the
treatment plan for not more than six months.
During the period of protective supervision, the department
may seek removal of the child by obtaining an order in the
pending case or a law enforcement officer may remove the
child.
If this happens, a new permanency hearing must be
scheduled within 30 days. In this situation, the
reunification plan will most likely need to be changed.
The requirement for a prompt permanency hearing assures
that the child has a realistic permanency goal and that the
system is moving the child toward permanency.
A provision has been added requiring a permanency
hearing every 12 months while the child is in state custody.
This is consistent with the requirements of the federal
Adoption and Safe Families Act.
32A-4-28. Termination of parental rights
Under subsection B(2), the provision allowing the court to find
that no efforts to work with the parents are necessary in cases
where the parent has experienced a previous termination of
parental rights is stricken. This is consistent with the change
previously discussed under 32A-4-25. Again, aggravated
circumstances is an alternative ground for the court finding
that reasonable efforts are not required and aggravated
circumstances includes a previous termination of parental
rights.
32A-4-29. Termination procedure
Subsection A has been simplified to provide that the motion
for termination of parental rights may be filed by “a party to
the proceeding.” This is the case as a matter of procedural
law. Any person, other than the original parties to the
proceeding, who desires to file a termination of parental
rights motion in the Article 4 proceeding must first
intervene, pursuant to 32A-4-27.
The requirement for verification has been eliminated. This
is a matter of procedure and is governed by Supreme Court
Rule.
This section contained a number of provisions that were a
carryover from the time when termination of parental rights
was a separate proceeding from the abuse and neglect case.
These provisions discussed, for example, service on parents
whose whereabouts are unknown and advising parents of
the right to counsel. These have been deleted.
The reference to court rules has been updated. Rather than
refer to the Rules of Civil Procedure for the District Courts,
the section now refers to the Children’s Court Rules.
One of the exceptions to the requirement for filing a
termination of parental rights motion when a child has
been in custody for fifteen months is that an older child is
opposed to termination and is likely to disrupt a placement
with an adoptive family. Consistent with other changes in
the code, the age of the child is set at 14 for this exception
to apply.
32A-4-32. Permanent guardianship
procedure.
This section has been cleaned up, consistent with the
changes made in Section 32A-4-29, termination of
parental rights procedure.
Other clean-up includes clarifying that a motion
rather than an application or a petition is the
appropriate pleading to request a permanent
guardianship. The section now refers to service of
motions in accordance with the Children’s Court
Rules, not the Rules of Civil Procedure
32A-4-33 Confidentiality
The term “or information” has been added to clarify that
records and the personal knowledge and information used to
create those records are confidential.
The section is clarified to provide that the records or
information “incident to or obtained” as a result of an abuse
neglect investigation or proceeding is confidential. Formerly,
the only records included in the confidentiality clause were
those in the possession of the department or the court. This
provision was stricken based on the reasoning that the records
should be confidential regardless of possession.
The persons entitled to disclosure of records has
been changed to include the parties (who are
entitled to access pursuant to rules of discovery)
and attorneys representing the child in an abuse
or neglect action, a delinquency action, or any
other action under the Children’s Code.
A provision has been added requiring the
department to promulgate regulations for
implementing the disclosure of information
provisions.