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.
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Upon receipt of referral for child abuse of neglect, CYFD will investigate the matter. If the charge is "substantiated," CYFD initiates a proceeding by filing a Petition in Children's Court. See NMSA § 32A-4-15; Rule 10-312 NMRA. To simultaneously obtain immediate custody, CYFD also files a motion for an ex parte custody order, which must include an affidavit showing probable cause that that the child has been abused or neglected, and custody is necessary. See NMSA § 32A-4-16(A)-(B); Rule 10-311 NMRA.
If the court finds probable cause, it will usually issue an order giving CYFD interim legal custody of the child until a custody hearing can be convened, within 10 days of the ex parte custody order. See NMSA § 32A-4-16(A), -18(A). The Rules of Evidence do not apply to the issuance of the ex parte custody order. See NMSA § 32A-4-16(C); Rule 11-1101(D)(2) NMRA. However, at the inception of the proceeding, the court must appoint counsel for the parent and a guardian ad litem (GAL) for the child. See NMSA § 32A-4-10(B)-(C).
At the custody hearing, the court will determine if the child should remain in or be placed in CYFD's custody pending adjudication of the merits of the abuse/neglect petition. See NMSA § 32A-4-18(A). The Rules of Evidence also do not apply to the custody hearing. See NMSA § 32A-4-18(H); Rule 11-1101(D)(2) NMRA. If the court finds probable cause to believe there has been abuse or neglect, it will determine custody of the child pending final adjudication. See NMSA § 32A-4-18(A), (D).
Adjudication must be "commenced within sixty days after date of service" of the abuse/neglect petition upon the respondent. See NMSA § 32A-4-19(A); see also Rule 10-343 NMRA (identifying he triggering events for that 60 day period). At the adjudication hearing, the court must determine, on the basis of "clear and convincing evidence, competent, material and relevant in nature," whether the allegations of the petition are true. See NMSA § 32A-4-20(H). At this stage both constitutional due process protections and the Rules of Evidence apply. See State ex rel. CYFD v. Kathleen D.C. (In re Damion M.C.), 2007-NMSC-018, ¶ 12, 141 N.M. 535, 156 P.3d 714 (re: due process protections) and Rule 10-141 NMRA (re: Rules of Evidence); see also Rule 11-11-1(A), (D).
If the court concludes on the basis of clear and convincing evidence that abuse or neglect occurs, the next stage is "disposition," at which time the court makes custody findings and determinations, and establishes a treatment plan for the family. See NMSA § 32A-4-22. This usually requires multiple findings regarding the best interests of the child, the wishes of the child and parent, and the ability of the potential custodians. See NMSA § 32A-4-22(A). The disposition hearing can be held immediately after the adjudication hearing, or within thirty days thereof, see NMSA § 32A-4-20(H), -22(A), and the Rules of Evidence to not apply. See NMSA § 32A-4-22(A). Instead, the court is allowed to consider "all relevant and material evidence helpful in determining the questions presented, including oral and written reports..." See NMSA § 32A-4-20(I); Rule 11-1101(D)(2).
Under federal and state law, the courts are prohibited from permitting children to languish in foster care indefinitely. Accordingly, parents will be kept on a pretty tight schedule to begin working the treatment plan, and make measurable improvements consistent with the plan. The court will schedule several judicial review hearings every several months, over the course of the proceedings, to check in on the parent's performance of the treatment plan. If the parents cannot or will not meet the requirements of the treatment plan, the court will have to initiate termination proceedings, usually around a year or a year and a half after the date of the petition for abuse/neglect.
The Court may also appoint a CASA worker, or "Court Appointed Special Advocate to the case. As the National CASA Association describes it, the role of the CASA is to "be the voice for the child." I myself am a CASA, but would phrase it a bit differently--the CASA is a fact-gatherer for the Court, providing a different view point and additional information as provided by the other actors involved, such as the Guardian ad Litem and the CYFD personnel, and the CASA is a check in the event some facts are overlooked by an overworked and underfunded system. However, because there are usually more cases than CASA workers, the Courts will be most likely to appoint a CASA to the more complicated cases, and cases involving very young children.
If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
