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Roles_ Procedures_ and Timelines

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					The Role of the Parties and The
     Phases of the Case
    Who, What, Where, When,
         Why and How
                           The Players
Children/Youth                  Judge
Parents or other caretakers     Guardian ad Litem for incompetent
Case Workers                    party

Children’s Court Attorney       Foster parents (includes treatment
                                foster parents)
Respondent’s Attorney
(Parent’s or caretaker’s        CRB
attorney)                       Providers (doctors, therapists,
Tribal counsel and Case         treatment coordinators,
Workers                         psychiatrists, psychologists, school
                                personnel, juvenile system
Guardian ad Litem               personnel, etc.)
Youth Attorney                  Adoptive parents & counsel
CASA
                                                                  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.
                                                                4
     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.
                                                                            8
                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.

                                                               11
    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.
   Staffscase 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.             Once the case is filed,
the Judge:
   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:
    Bypersonal 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.

                                                                   18
                      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.
                                                               20
               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.
         IfCYFD decides that the child should remain in the home, it
          decides what conditions will apply.

                                                                   21
              Custody Hearing (10 day)
CCA.
   Providesreasonable 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.

   Presentsbasic 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.

                                                             24
       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.

                                                      26
       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
              interviews and/or psychosocial evaluation
        initial
         completed as part of assessment plan
     Has proposed treatment plan available to discuss at meeting
                                                                    27
 Pre-Adjudication/Mediation, cont.

GAL and YA.
   Meetswith 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.
   Exploresclient’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.
                                                         29
       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.
                                                                       30
                 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:
   theChildren’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.
                                                                     33
   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.
    Presentschild’s position
   Presents GAL’s opinion of the child’s best interest
   Child may be present unless best interest to exclude
YA.
    Presentschild’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.

                                                     39
        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.

                                                      43
             The Treatment Plan
The Plan must:
   ensurethe 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.
                                                          44
          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.
                                                       46
                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).
                                                                    50
               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?
                                                                    51
    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.



                                                                 57
        Change of Permanency Plan
CCA.
          case with PPWs.
    Staffs
   Reviews TPR requirements if change of plan to TPR is
    recommended.
   Presents proposed change of plan to court.
   Prepares TPR Motion if plan is changed to
    TPR/adoption.
PPW.
           information from parties and providers in a
    Elicits
     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.

                                                  59
     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
      Placementin 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. Reviews past compliance of parents. If plan still
  reunification need to develop transition home plan for
  Ct.
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. interview client and consider arranging
  attendance, and develop a tx plan that serves the child’s
  best interest
Judge. May schedule for the parties, but does not
  participate.
                                                            62
         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.


                                                         63
          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.
                                                             65
              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.
                                                                                 66
    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.


                                                                  67
    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.




                                                 70
        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
   Inabilityto 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:
   Proofbeyond 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.
   Specificfindings 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.
      may be involved in pre mediation because of unique
       knowledge of child or children, not usually in mediation
PPW.
      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
      
    Open adoption must be a good decision for the child independent
      of the promise of contact with child
Judge.
         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

         includespecific 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.
 at a minimum files entry of appearance in the Ct of appeal

 may need to brief issues

Judge.
 Children’s Court retains jurisdiction during pendency of appeal

 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
       Represents adoptive parents.
CCA.
       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

				
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