NM Courts Uphold Home Mortgage Re-Fi Practices

A significant part of my mediation practice nowadays involves foreclosure mediation.  As I've written elsewhere, some courts on the East and West coasts have taken mortgage lenders to task in recent years.  In New Mexico, however, much of the debate about mortgage lending and foreclosure practices has been largely limited to op-ed pieces until now.  Finally, New Mexico courts have weighed in on lending practices at least, in a decision that clarifies the issues but may not bode well for home-owners.

The Inside Scoop on CYFD and Abuse/Neglect, Part II

In addition to my labor and employment mediation/arbitration work, I am also a New Mexico domestic relations mediator and child protection worker (CASA and GAL), In a previous blog, I outlined the general process by which children believed to be abused or neglected are brought into and processed through "the system."  In this follow up blog, I'll address specific details that crop up between intake and placement.

Child Safety Assessment --Threats and Protective Capacities

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I am attuned to issues related to the safety and adequate care of children.   The emerging conceptual model today is to assess threats of child abuse and weigh those threats against the “protective capacities” in the family, to determine whether or not a child is or can be made “safe” in a given home environment.  If the child is or cannot be made safe, the State must assume custody.  This blog reviews the new safety threat/protective capacity model or analysis.

Vehicular Manslaughter Distinguished from Child Abuse

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children, even when not precisely within my bailiwick.  In State v. Gonzales, 2011-NMCA-081, the New Mexico Court of Appeals has ruled that criminal negligence that endangers the public at large--such as driving will intoxicated--and results in injury or death of a child cannot generally support a conviction for negligent child abuse by endangerment (NMSA 30-6-1(D))(1)).

The Inside Scoop on CYFD

As a New Mexico domestic relations mediator and child protection worker (CASA and GAL), I attend training and blog in these areas with fair regularity.  I have previously written in broad outline form about the New Mexico child protection laws, timelines and policies, and now report on training conducted in August 2011 by CYFD)and the Albuquerque Court Appointed Special Advocate (CASA) Program, in which CYFD gave a overview on CYFD policies and procedures from intake to placement.  

Is Media Making Our Kids Too Sexy Too Soon?

As a domestic relations mediator and child protection worker (CASA and GAL)--and a parent--I have occasion to wonder if the media is making our kids too precocious too soon.  In So Sexy So Soon (2008), authors Diane E. Levin, PhD and Jean Kilbourne, EdD weigh in and conclude that is the case.  While I do not agree with all of their premises or prejudices, there is still considerable merit to their book

Hard Times Get Tougher?

I am an Alternative Dispute Resolution (ADR) Professional in New Mexico, and I wrote earlier in the year on another blog about "the new normal" of low, slow growth.  Recently, the Chief Economist for the Bank of New York Mellon, Richard B. Hoey, suggested that the situation could now be quite worse.  

Bankruptcy, Short Sale and Deed in Lieu in Foreclosure

A significant part of my neutral practice involves New Mexico foreclosure mediation, and I have written several posts recently regarding foreclosure.  See Foreclosure Mediation - Limitations and Concerns and How a Mediator Can Help in Foreclosure - More Thoughts.  Today, I'd like to look at a couple of particularly thorny issues that often arise in foreclosure mediation.  

First, it may be that the homeowner will need to consider whether he or she is even able to afford the home.  If the homeowner is not offered a loan modification that will

Court Debates Whether Secret Potty Pics = Sexual Exploitation

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children.  In State v. Myers, 2011-NMSC-028, the New Mexico Supreme Court rejected the Court of Appeals' chastisement, and concluded that the Sexual Exploitation of Children Act, NMSA §§ 30-6A-1 et seq. applies to taking covert pictures of the genitals of female minors' while they used the restroom.

In what was an unusual twist, the Court of Appeals, on remand, had concluded that the State Supreme Court had impermissibly expanded the scope of the Act.  Specifically, it

The Intersection of Bankruptcy and Divorce

Increasingly when couples come to me today seeking to mediate their New Mexico divorce, it quickly becomes apparent that they need to consider bankruptcy.  Although an attorney, I do not do bankruptcies, so I generally insist that they take a time out from the process (a few days or weeks) to confer with or consider conferring with a bankruptcy attorney.  In New Mexico, the State Bar generally conducts a Consumer Debt/Bankruptcy Workshop every 4th Wednesday of each month, at 6:00 p.m., at the State Bar offices at  5121 Masthead NE, Albuquerque. (To sign up, call 505.797.6094.)  

Here's is a very brief and superficial overview of bankruptcy, and bankruptcy issues arising in divorce.

Life Sentence for Serious Youtfhuful Offender - Authorized but Not Mandated

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children.  In State v. Oden, 2011-NMSC-024, the New Mexico Supreme Court has held that a life sentence for a 16 year-old child is authorized but not mandated under NMSA Sec. 31-18-15.3(D).

Kinship Guardianship Narrowly Applied

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children.  In a recent, and rather convoluted case, Freedom C. v. Julie Ann D., 2011-NMCA-040, cert. gran., the New Mexico Court of Appeals rejected use of the Kinship Guardianship Act, NMSA 40-10B-1 et seq., by grandparents living with a parent to divest the other parent of his or her rights.

School Disciplinary Hearings -- Is a Lawyer Necessary?

Being involved in alternative dispute resolution (ADR) and child protection issues in New Mexico, I was struck by the recent question of whether parents need lawyers for school disciplinary hearings.  See Anna Stolley Persky, July 2011 issue of the ABA Journal.  The article begins with a "painful case," concerning "good kid" Nick Stuban, a Boy Scout and foot ball player in Virginia, who was transferred from school under the school's "zero tolerance policy" regarding drugs and weapons, for having brought to school a capsule of the then-legal synthetic marijuana.  Six days after starting at his new school, Nick committed suicide.

At the time of the incident, Nick's parents were discouraged by school administrators from bringing a lawyer to the disciplinary hearing, arguing it "would make the proceeding 

How a Mediator Can Help in Foreclosure - More Thoughts*

I've written in a previous blog about the role and utility of mediation in foreclosure matters.  Here are a couple of additional tips and pointers raised in a recent teleconference devoted to foreclosure mediation, including encouraging the parties to discuss how numbers were crunched,  locating the Pooling Service Agreement, and identifying the agent responsible for maintaining the file in the future.

Mediating Neighborhood Disputes*

As a "community mediator" in Albuquerque, New Mexico, I deal with a lot of disputes between neighbors.  Today, these neighbors are increasingly part of a well-regulated association, and their disputes that are particularly amenable to mediation due to the sensitive or "hot button" nature of issues concerning home.

Marital Settlement Agreements and Creditors' Claims

As part of my divorce mediation practice in New Mexico, I see a lot of "marital settlement agreements" (MSAs) and understand the pitfalls they can entail.  For example, under NMSA Sec. 42-10-2 and 42-10-3 certain assets such as annuities, money purchase plans, profit sharing pans, and individual retirement accounts are ordinarily exempt or protected from creditors' claims, through attachment, garnishment or other legal process--however, that protection can be waived if the parties are not careful.  A recent N.M. case addresses this head one.

Foreclosure Mediation - Limitations and Concerns*

As part of my New Mexico mediation practice, I find I am increasingly being referred residential foreclosure mediation cases.  This is no accident as today, an increasing number of states and/or individual state courts are utilizing foreclosure mediation programs to manage the current "foreclosure crisis." Some states with such programs, either state-wide or local include: Connecticut; Delaware; Florida—various judicial districts; Kentucky—Jefferson County; Maine; Maryland; Michigan; Nevada; New Jersey; New Mexico—First and Thirteenth Judicial Districts; New York; Ohio—various counties; Oregon; Pennsylvania—various counties; Rhode Island—Providence. 

A recurring and thorny dilemma for mediators today is how to conduct and what are the proper parameters for a foreclosure mediation or settlement facilitation.

ICWA Processes and Placement Requirements

Besides my mediation and arbitration work, I am also a Court Appointed Special Advocate (CASA) and guardian ad litem (GAL) in New Mexico.  Recently, the Second Judicial District CASA Program organized Indian Child Welfare Act (ICWA) Trianing at the Juvenile Justice Center.  Bernie Teba, member of the Navajo Tribe and Santa Clara Pueblo, and the CYFD Tribal Liaison, discussed various ICWA processes and placement requirements which I will recount here. 

Child Protection Update - Abuse Evidenced by Abuse of Mom and Siblings

As a guardian ad litem (GAL) and alternative dispute resolution (ADR) practitioner in New Mexico, I take special interest in unusual court cases involving children.  In CYFD v. Arthur C. and Angel J., 2011-NMCA-022, the New Mexico Court of Appeals* recently reconciled rule amendments, and an amendment to Section 32A-4-19 with Court Rule 10-343, to uphold a determination of abuse in the context of an Indian Child Welfare Act (ICWA) matter, and prior abuse of another child.

ICWA requirements for Child Abuse/Neglect Adjudication in NM

As a guardian ad litem (GAL) and alternative dispute resolution (ADR) practitioner in New Mexico, I take special interest in unusual court cases involving children, and there are few child protection cases trickier than "ICWA" cases.   

In CYFD v. Marlene C., 2011-NMSC-005, the New Mexico Supreme Court has recently ruled that the court must make certain findings at the adjudication stage, under the Indian Child Welfare Act of 1978 (ICWA), 25 USC Sec. 1901-1963 (2006): (a)  the State has made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and such efforts and proved unsuccessful: and  (b) there is clear and convincing evidence, such as that based on qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.  See 25 USC Sec. 1902(e). The Court also held that Sec. 1913, regarding voluntary proceedings for placement and termination, only applies to proceedings initiated by the parent(s).  


Overall, the case serves as an excellent primer for ICWA issues and pitfalls.

Surrogacy Issues

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children and parental rights issues.  In the March issue of the ABA Journal, Mark Hansen writes about a Minnesota surrogacy case, in which a male homosexual couple made "do it yourself" (DYI) arrangements through a surrogacy website.  The surrogate was implanted with her own egg, which had been fertilized by the sperm of one of the men.  Although she relinquished her parental rights en route, she changed her mind shortly after birth, giving rise to several years of litigation.

News on the Home Front -- Mortgages and Foreclosures

Before I get to the meat of this post, I want to talk a bit about the nature of this particular blog, "On Maters of Family, Child Protection and Home."  

Beside my work in areas of general civil and labor/employment alternative dispute resolution, see On Being a Neutral, and  On New Mexico Labor and Employment Law, I am also increasingly engaged in New Mexico domestic relations, child protection and foreclosure matters nowadays.  "Domestic relations, child protection and foreclosure matters" may seem to you like an odd cast of characters to put together on your primarily labor-related resume, or to put together in one blog.  As to the resume, these are "hot" areas in mediation and my practice has necessarily evolved to go where the business is.  As to the blog, however, to me these areas are all connected by a common theme: what we do the rest of our day, away from work, e.g., home and family life.  Also, I frankly just had to cut myself off at the third blog!  

So, by way of that introduction, the following is my first post on matters of "home and heart," and what better inaugural topic than the present foreclosure crisis?

Custody and Visitation Rights of Domestic Partners

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children. In Chatterjee v. King, 2011-NMCA-012 (cert granted Jan. 27, 2011, No. 32,789), the State Court of Appeals has recently issued a controversial and hotly disputed ruling regarding the custody rights of non-adoptive domestic partners. 

NM Abuse and Neglect Processes and Proceedings

Although I began my alternative dispute resolution (ADR) career in the labor/employment field, I have since expanded my practice to include domestic relation mediation and child protection related work, as I observed in my last blog posting.  This blog will address, generally, New Mexico law on child protection processes.

NM Separation, Divorce and Parentage Proceedings

Although I began my alternative dispute resolution (ADR) career in the labor/employment field, I have since expanded my practice to include domestic relation mediation and child protection related work.  Perhaps this seems like an odd combination to some.  However, I see a lot of similarities in these areas--work and family--in that both deal with intensely personal issues that affect major portions of our life's endeavors.  

I discuss neutrality principles generally and labor and employment issues in particular on my other blogs.  See On Being a Neutral, and  On New Mexico Labor and Employment Law.   Here, I will focus on "matters of family, child protection and home."  In this, my inaugural posting, I will address New Medico separation, divorce and parentage proceedings, from perspective of a domestic relations mediator.