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HOW A CHILD ENTERS THE SYSTEM Dan Pearlman djpearlman1@msn.com or daniel.pearlman@state.nm.us Grace Hernandez grace.hernandez @state.nm.us. 4/3/2014. 2. INVESTIGATIONS. Bernalillo County Reports. 4/3/2014. 4.

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slide1

HOW A CHILD

ENTERS

THE SYSTEM

Dan Pearlmandjpearlman1@msn.com or daniel.pearlman@state.nm.us

Grace Hernandez

grace.hernandez @state.nm.us

slide5

Bernalillo County Protective Services Accepted Reports Quarter 1 SFY 09: July - September 2008In Home/Legal

4/3/2014

5

substantiated vs unsubstantiated
Substantiated vs. Unsubstantiated

Unsubstantiated means only that the investigation does not indicate that the child is abused or neglected as defined by law.

It does not mean the reported incident did not occur.

360 presentation
360 Presentation

Bernalillo County

East/West Area

Investigations/In-Home Services

Permanency Planning

Placement

Permanency Planning

4/3/2014

13

overview
Overview

Every person is required by law to report suspected abuse or neglect. § 32A-4-3.

Only some of these reports reveal circumstances serious enough to result in in investigation, and only some investigations reveal facts that warrant a court proceeding.

overview cont
Overview, cont.

For the 12-month period ending March 31, 2006:

Reports of abuse or neglect: 23,629 (unique children)

Substantiated after investigation: 5,880 (24.9%)

Unsubstantiated: 17,749 (75.1%)

Cases opened for services: 2,425

Children entering foster care: 1,148

“Substantiated” means there is evidence child is abused or neglected as defined by law.

“Unsubstantiated” does not mean the incident that was investigated did not happen, it means the child does not appear to be abused or neglected as defined by law.

overview cont20
Overview, cont.

In an emergency, medical personnel can hold a child until law enforcement takes custody. Only law enforcement personnel can take a child into custody without a prior court order.

CYFD can not take custody of a child except from law enforcement or by court order.

§§ 32A-4-4, -6, -7, -16.

duty to report 32a 4 3 a
Duty to Report:§ 32A-4-3(A)

Every person, must report “including”:

a licensed physician;

a resident or an intern examining, attending or treating a child;

a law enforcement officer;

a judge presiding during a proceeding;

a registered nurse;

a visiting nurse; a schoolteacher;

a school official;

a social worker acting in an official capacity; or

a member of the clergy

Why are these listed if the requirement includes “every person”? -- because these may think they have other duties/privileges - see next slide

duty to report cont
Duty to Report, cont.

Any person who has information that is not privileged as a matter of law (not as a matter of ethical rules or conventions),

who knows or has a reasonable suspicion that a child is an abused or a neglected child,

shall report the matter immediately to:

a local law enforcement agency;

CYFD; or

a tribal law enforcement or social services agency for any Indian child residing in Indian country.

immunity of reporting person 32a 4 5 b
Immunity of Reporting Person§ 32A-4-5(B)

“Anyone reporting an instance of alleged child neglect or abuse or participating in a judicial proceeding brought as a result of a report required by Section 32A-4-3 NMSA 1978 is presumed to be acting in good faith and shall be immune from liability, civil or criminal, that might otherwise be incurred or imposed by the law, unless the person acted in bad faith or with malicious purpose.”

abused child 32a 4 2 b
Abused Child: § 32A-4-2(B)
  • Abused child means a child who has suffered:
    • or who is at risk of suffering serious harm because of the action or inaction of the child's parent, guardian, or custodian;
    • physical abuse, emotional abuse or psychological abuse inflicted or caused by the child's parent, guardian, or custodian;
    • sexual abuse or sexual exploitation inflicted by the child's parent, guardian, or custodian;
abused child cont
Abused Child, cont.
  • Abused child means a child whose parent, guardian, or custodian has:
    • knowingly, intentionally or negligently placed the child in a situation that may endanger the child's life or health; or
    • knowingly or intentionally tortured, cruelly confined or cruelly punished the child.
physical abuse 32a 4 2 f
Skin bruising

Bleeding

Malnutrition

Subdural hematoma

Soft tissue swelling

Death

Physical Abuse: § 32A-4-2(F)

Physical abuse includes, but is not limited to, any case in which the child exhibits evidence of:

  • Failure to thrive
  • Burns
  • Bone Fracture

AND . . .

physical abuse cont
Physical Abuse, cont.
    • There is no justifiable explanation for the condition or death;
    • The explanation varies from the degree or nature of the condition;
    • The explanation given for the death varies from the nature of the death; or
    • Circumstances indicate that the condition or death may not be the product of an accidental occurrence.
  • In re Vincent L., 1999-NMCA-089, ¶ 9.
emotional psychological abuse
Emotional & Psychological Abuse
  • A child who suffers emotional or psychological abuse is considered an abused child.
  • But, the Children’s Code does not define emotional or psychological abuse.
emotional psychological abuse cont
Emotional & Psychological Abuse, cont.
  • The Court of Appeals upheld a finding of Emotional Abuse and Neglect based on the combined effects of mother’s:
    • Leaving children unattended for long periods;
    • Exposing them to dangerous situations;
    • Failing to understand their physical and emotional needs;
    • Failing to empathize with their feelings;
    • Being self-centered in her interactions with the children;
    • Exposing them to domestic violence;
    • Exposing them to substance abuse;
    • Showing an indifference to their needs in favor of her own; and
    • Placing them with inappropriate caretakers.
  • Eventyr J., 120 N.M. 463 (Ct. App. 1995); see also State ex rel CYFD v. Athena H, 2006-NMCA-113.
sexual abuse 32a 4 2 g
Sexual Abuse: § 32A-4-2(G)
  • Sexual abuse includes, but is not limited to, the following criminal conduct:
    • criminal sexual contact,
    • incest, and
    • criminal sexual penetration
sexual exploitation 32a 4 2 h
Sexual Exploitation:§ 32A-4-2(H)
  • Sexual exploitation includes, but is not limited to:
    • allowing, permitting or encouraging a child to engage in prostitution;
    • allowing, permitting, encouraging or engaging a child in obscene or pornographic photography or
    • filming or depicting a child for obscene or pornographic commercial purposes, as those acts are defined by state law.
neglected child 32a 4 2 e
Neglected Child: § 32A-4-2(E)
  • Neglected child means a child:
    • who has been abandoned by the child's parent, guardian or custodian; or
    • who is without proper parental care and control or subsistence, education, medical or other care or control necessary for the child's well-being because of:
      • the faults or habits of the child's parent, guardian or custodian or
      • the failure or refusal of the parent, guardian or custodian, when able to do so, to provide them.
neglected child cont
Neglected Child, cont.
  • who has been physically or sexually abused, when the child’s parent, guardian, or custodian knew or should have known of the abuse and failed to take reasonable steps to protect the child from further harm; or
  • whose parent, guardian, or custodian is unable to discharge his responsibilities to and for the child because of incarceration, hospitalization or physical or mental disorder or incapacity.
abandonment 32a 4 2 a
Abandonment: § 32A-4-2(A)
  • Abandonment includes circumstances when the parent, without justifiable cause, LEFT THE CHILD:
    • without provision for the child’s identification for a period of 14 days; or
    • with others (including the other parent or an agency) without provision for support & without communication for:
      • 3 months if the child was under 6 years old at the beginning of the 3-month period; or
      • 6 months if the child was over 6 years old at the beginning of the 6-month period.
abandonment safe haven
Abandonment & Safe Haven
  • Leaving an infant at a hospital in accordance with the Safe Haven Act:
    • protects a parent, guardian, or custodian from CRIMINAL PROSECUTION for child abandonment, but
    • does NOT protect against abuse & neglect proceedings.
cyfd statewide central intake 8 10 2 nmac
CYFD Statewide Central Intake8.10.2 NMAC

When SCI receives a report of alleged abuse or neglect, the report is assigned an investigative priority.

Emergency Report: respond within 3 hours = immediate danger

Priority One Report: respond within 24 hours = serious allegations, but child in safe environment

Priority Two Report: respond within 5 calendar days = past abuse/neglect, no immediate danger

Respond = face to face contact with alleged victim (child).

screen in screen out
Screen In/Screen Out

Screen in means a report from a community source which met requirements to make it a referral

Screen out means didn’t meet requirements, including out of home perpetrator, concerns do not warrant an investigation, or the allegations the same as a current investigation.

emergency report
Emergency Report

Response required within 3 hours:

When the worker believes the identified victim is in immediate danger, he/she immediately consults the supervisor for approval of the emergency prioritization.

The supervisor arranges for immediate assignment of the report for investigation.

When the situation is potentially life threatening, the worker contacts the appropriate emergency response personnel, including, but not limited to, law enforcement and paramedics.

examples of emergency report
Examples of Emergency Report

Examples include, but are not limited to:

an abandoned infant or child;

any incident alleging a recent serious trauma, such as head injury, burns, or broken bones;

reports alleging physical injury to an infant;

reports alleging recent sexual abuse;

reports alleging any potential life-threatening situation;

requests from law enforcement for immediate response to assist in the assessment of the immediate safety of the child and/or adult; and

allegation of abuse or neglect in foster or pre-adoptive home.

priority one report 24 hour response
Priority One Report 24-hour Response

If the intake worker assesses that the alleged victim is not in immediate danger, but that a response by CYFD is required within twenty four hours, he/she completes the Protective Services Report, and forwards the report to his/her supervisor as soon as possible.

The supervisor reviews, approves and forwards the report to the investigation supervisor for assignment.

examples of priority one reports
Examples of Priority One Reports

Examples include, but are not limited to:

Allegations of physical injury where the alleged victim is presently in a safe environment;

Allegations of ongoing abuse or neglect where the alleged perpetrator will not have access to the child in the next twenty-four hours.

priority two report 5 calendar days
Priority Two Report 5 calendar days

If, based upon the information provided in the report, the intake worker assesses that the alleged victim is not in immediate danger; he/she completes the Protective Services Report, and forwards the report to his/her supervisor as soon as possible.

The supervisor reviews, approves and forwards the report to the investigation supervisor for assignment.

examples of priority two reports
Examples of Priority Two Reports

Examples include, but are not limited to:

Reports alleging a/n with no immediate concerns for the victim’s safety or well being;

Reports alleging physical abuse with no present injury;

Reports of a/n when the alleged perpetrator no longer has access to the victim;

Reports of abuse/n when a protective parent or caretaker has already intervened.

purpose of cps investigation 8 10 3 8 nmac
Purpose of CPS Investigation8.10.3.8 NMAC

To assess safety of children who are the subjects of reports of alleged abuse or neglect and to collect and assess information to:

determine whether the incident of child abuse or neglect occurred,

determine whether any child in the home remains at risk for continuing abuse and neglect, and

assess the need for additional protective services.

cps investigation
CPS Investigation

CYFD will conduct investigations for children in the custody of:

biological parents

adoptive parents

other relatives or guardians or

CYFD (foster care, institutional care).

conducting cps investigations 8 10 3 12 nmac
Conducting CPS Investigations8.10.3.12 NMAC

CYFD gathers the information required to determine the immediate safety of and ongoing risks of harm to the child.

CYFD interviews/observes the alleged child victim and all other children in the household during the investigation.

interviewing the child 8 10 3 12 nmac
Interviewing the Child8.10.3.12 NMAC

Interviews at home: Children contacted at home are interviewed only with the permission of the parent or caretaker.

Interviews at public schools:

public schools are required by § 32A-4-5 NMSA to permit children to be interviewed concerning a CPS investigation; and

parental permission is not required to interview a child at public school.

interviewing the child 8 10 3 12 nmac51
Interviewing the Child8.10.3.12 NMAC

Interviews at private schools or in childcare homes & facilities:

a private school or childcare may deny permission for CYFD to interview the child on the facility grounds; and

if permission is denied and exigent circumstances are believed to exist, then CYFD determines whether law enforcement should be contacted or a court order obtained.

interviewing the child cont 8 10 3 12 nmac
Interviewing the Child, cont. 8.10.3.12 NMAC

A child may be interviewed without parental notification when CYFD determines that notification could:

adversely affect the safety of the child about whom the report has been made; or

compromise the investigation. § 32A-4-5(F).

If such a determination is not made prior to interviewing a child, CYFD shall notify the parent or guardian of the child who is being interviewed.

interviewing the child cont 8 10 3 12 nmac53
Interviewing the Child, cont. 8.10.3.12 NMAC

If CYFD interviews a child before notifying the parents/guardians, it must notify the parents of the interview within 24 hours.

CYFD informs all children that their participation in the interview is voluntary. Children 14 years of age and older must agree to participate in the intervieweven when parental permission has been given to CYFD.

investigation decision disposition 8 10 3 17 8 10 3 18 nmac
Investigation Decision & Disposition8.10.3.17 & 8.10.3.18 NMAC

CYFD makes an investigation decision and disposition within 30 days of receipt of the report.

Investigation Decision = determination that the allegations are substantiated or unsubstantiated

Unsubstantiated means only that the investigation does not indicate that the child is abused or neglected as defined by law. It does not mean the reported incident did not occur.

Disposition = refer for services, file legal case

investigation decision disposition cont
Investigation Decision & Disposition, cont.

CYFD determines the investigation decision and disposition of the investigation based upon the service delivery matrix that considers:

the assessment of the child’s risk of future abuse and/or neglect,

the needs and strengths of the family, and

the safety of the child.

safety of the child 8 10 3 9 nmac
Safety of the Child8.10.3.9 NMAC

The safety of the child is the overriding concern throughout the casework relationship with the family.

If the safety of the child ever conflicts with the treatment or preservation of a family unit, the child’s need for protection always takes precedence.

CYFD requests immediate assistance from law enforcement if necessary to assess and/or secure the safety of the child.

child sensitive interviews 2009 changes to 32a 4 5
Child Sensitive Interviews:2009 changes to § 32A-4-5
  • When possible, law enforcement shall interview child victims and witnesses using child-sensitive procedures.
taking a child into custody 32a 4 6
Taking a Child Into Custody§32A-4-6

A child may be held or taken into custody by a law enforcement officer when the officer has reasonable grounds to believe that the child:

(1) is suffering from illness or injury as a result of alleged abuse or neglect, or

(2) has been abandoned, or

(3) is in danger from the child's surroundings,

and

removal from those surroundings is necessary.

taking a child into custody cont 32a 4 6
Taking a Child Into Custody, cont.§32A-4-6

A child may be held by medical personnel when there are reasonable grounds to believe that the child:

has been injured as a result of abuse or neglect

and

may be at risk of further injury if returned to the child's parent, guardian or custodian.

taking a child into custody cont 2009 changes to 32a 4 6
Taking a Child Into Custody, cont. 2009 changes to §32A-4-6

Unless certain emergent circumstances apply:

the law enforcement officer must notify CYFD before taking a child into custody; and

A protective services worker must conduct an on-site safety assessment to determine whether it is appropriate to take the child into custody.

taking a child into custody cont 32a 4 661
Taking a Child Into Custody, cont.§32A-4-6

When a child is taken into custody, CYFD shall make reasonable efforts to determine whether the child is an Indian child.

Whenever an Indian child is taken into custody because of allegations of a/n, the department shall give notice to the agent of the Indian child's tribe in accordance with ICWA.

interfering with protection of a child 32a 4 6
Interfering with Protection of a Child§32A-4-6

Any person who intentionally interferes with protection of a child, as provided by § 32A-4-6(A), is guilty of a petty misdemeanor.

This does not give CYFD right to enter a home without a warrant (4th Amendment). Law enforcement can enter a home without a warrant if exigent circumstances or community caretaker protective function. However, exclusionary rule does not apply. (Could create civil rights lawsuit and CYFD SW’s are trained not to do it.)

can removal be prevented
Can Removal be Prevented?

If abuse/neglect is substantiated

OR

If child is taken into protective custody by law enforcement

ASK:

IS THERE A WAY TO LOWER THE RISK WITHOUT HAVING TO REMOVE THE CHILD FROM THE CAREGIVER?

(For example, remove the abuser, not the child)

reasonable efforts to prevent removal 32a 4 7 and asfa
Reasonable Efforts to Prevent Removal § 32A-4-7 and ASFA

State and federal law—and best practices—require that reasonable efforts be made to prevent removal of the child from the home, giving PARAMOUNT consideration to the health and safety of the child.

CYFD offers available community services or in home services to assist the parent to care for the child within the home or family unit.

Noncustodial parents or other extended family members might be able to provide temporary care while the dangerous or neglectful condition is corrected.

if removal cannot be prevented legal intervention
If Removal Cannot be Prevented: Legal Intervention

Legal intervention begins ONLY when:

less intrusive alternatives exhausted

or

the risk of serious harm is too great.

slide67

Release from Custody

The child shall be released to the child's parent, guardian or custodian, unless:

    • the department files a petition
    • within two days from the date that the child was taken into custody.
  • Note: For CYFD to retain legal custody, the abuse/neglect must be by “parent, guardian or custodian” – the issue is the child’s safety and well-being in the home.
filing a petition and motion for ex parte custody order
Filing a Petition and Motion for Ex Parte Custody Order

Caseworker and supervisor meet with the CCA to determine if a petition and motion for ex parte custody order should be filed.

“Pre-removal” and “Pre-filing” staffings

The CCA must endorse on the petition that its filing is in the best interest of the child.

filing a petition cont
Filing A Petition, cont.

If the child is already in CYFD’s emergency custody, the petition and motion for an ex parte custody order must be filed within 2 working days of child coming into custody.

CYFD may file a motion for an ex parte custody order if it believes the child’s welfare demands it, even if the child is not already in custody. The order allows CYFD to take custody without the involvement of law enforcement.

ex parte custody orders 32a 4 16
Ex-parte Custody Orders: § 32A-4-16

At the time a petition is filed or any time thereafter, the children's court or the district court may issue an ex parte custody order upon:

a sworn written statement of facts

showing that probable cause exists

to believe that the child is abused or neglected and

that custody under the criteria set forth in

§ 32A-4-18 is necessary.

ex parte custody orders cont
Ex-Parte Custody Orders, cont.

The ex-parte custody order shall:

be served on the respondent

by a person authorized to serve arrest warrants and

shall direct the officer to take custody of the child and deliver him to a place designated by the court.

The Rules of Evidence do not apply to the issuance of an ex-parte custody order.

time for filing 32a 4 4 d
Time for Filing:§32A-4-4(D)

The so-called 48 hour hold:

It’s two working days.

“When a child is taken into custody, the Department shall file a petition within two days.” § 32A-4-4(D).

“The child shall be released to the child's parent, guardian or custodian, unless the department files a petition within two days from the date that the child was taken into custody.” § 32A-4-7(D).

slide73

Notice Required: § 32A-4-7

  • If a child placed in the legal custody of the department is not released to the child's parent, guardian or custodian, CYFD shall give to the child’s parent, guardian or custodian:
    • written notice as soon as possible, and in no case later than 24 hours, and
    • a statement of the reason for taking the child into custody.
parent 32a 1 4 o
Parent: § 32A-1-4(O)
  • Parent includes a biological or adoptive parent IF he or she:
    • has a constitutionally protected liberty interest
    • in the care and custody of the child.
guardian 32a 1 4 h
Guardian: § 32A-1-4(H)
  • Guardian means:
    • a person appointed as a guardian 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.
custodian 32a 1 4 e
Custodian: § 32A-1-4(E)
  • Custodian means:
    • an adult
    • with whom the child lives
    • who is not a parent or guardian of the child.
what about notice to the fathers
What about notice to the “fathers”?
  • Acknowledged and Presumed fathers get notice.
  • Alleged and Psychological fathers get notice IF they have a constitutionally protected liberty interest in the care and custody of the child.
custody prior to adjudication 32a 4 18
Custody Prior to Adjudication: § 32A-4-18

Legal custody shall be returned to the parent, guardian or custodian unless probable cause exists to believe:

the child is suffering from an illness or injury and the p/g/c is not providing adequate care for the child;

the child is in immediate danger from his surroundings, and removal from those surroundings is necessary for the child's safety or well-being;

custody prior to adjudication cont
Custody Prior to Adjudication, cont.

the child will be subject to injury by others if not placed in the CYFD custody;

the child has been abandoned by his p/g/c; or

the p/g/c is not able or willing to provide adequate supervision and care for the child.

legal custody 32a 1 4 n
Legal Custody: § 32A-1-4(N)
  • Legal custody:
    • is a legal status created by:
      • order of a court of competent jurisdiction, or
      • operation of statute
    • that vests in a person, department or agency certain enumerated rights and duties.
legal custody cont
Legal Custody, cont.
  • One with legal custody has the right:
    • to determine where and with whom a child shall live;
    • and duty to protect, train and discipline the child;
    • and duty to provide the child with food, shelter, personal care, education and ordinary and emergency medical care;
    • to consent to major medical, psychiatric, psychological and surgical treatment and to the administration of legally prescribed psychotropic medications pursuant to 32A-6-1 et seq., and
    • to consent to the child's enlistment in the armed forces.
the foster parent does not have legal custody
The Foster Parent Does NOT have Legal Custody
  • Under § 32A-1-4(G), foster parent means:
    • a person,
      • including a relative of the child,
    • licensed or certified by
      • the department or
      • a child placement agency
    • to provide care for children in the [legal] custody of the department or agency.
the children s court
The Children’s Court

The Children’s Code establishes a division in the district court for each county known as the “children’s court.”

The Children’s Court has exclusive original jurisdiction over abuse or neglect proceedings for all NM children not residing or domiciled on an Indian reservation. §§ 32A-1-5, 32A-1-8(A).

children s court jurisdiction
Children’s Court Jurisdiction

In abuse/neglect cases where NM is the home state under the Uniform Child Custody Jurisdiction and Enforcement Act, §§ 40-10A-101 to 40-10A-403, the court has jurisdiction over both parents to:

determine the best interest of the child and

decide matters incident to the court proceedings. § 32A-1-8(C).

An absent parent must be served

children s court jurisdiction cont
Children’s Court Jurisdiction, cont.

In a/n cases involving Indian children, the court must inquire into the domicile and residence of the child early in the case.

Under ICWA, the child’s tribe has exclusive jurisdiction over the matter if the child resides or is domiciled on the reservation.

The children’s court has only emergency jurisdiction to protect the child until the tribe can assume jurisdiction and the child is transferred to that jurisdiction. 25 U.S.C. § 1911(a) and 25 U.S.C. § 1922.