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ABUSE AND NEGLECT

ABUSE AND NEGLECT. General Provisions. Definitions 32A-1-4

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ABUSE AND NEGLECT

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  1. ABUSE AND NEGLECT

  2. 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.

  3. 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.

  4. 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).”

  5. 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.

  6. 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.”

  7. 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.

  8. 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 well-being. • “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.

  9. 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).

  10. 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.”

  11. 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.

  12. 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.

  13. 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.

  14. 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.

  15. 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.

  16. 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 32A-4-2(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.

  17. 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 FamiliesAct.

  18. 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.

  19. 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.

  20. 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.

  21. 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.

  22. 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.

  23. 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.

  24. 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.

  25. 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

  26. 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.

  27. 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.

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